Tuesday, November 30, 2004


In 2003-04, Richard Posner published the following books:
Catastrophe: Risk and Response (Oxford University Press 2004) (forthcoming).

The Economic Structure of Intellectual Property Law (Harvard University Press 2003) (with William M. Landes).

Law, Pragmatism, and Democracy (Harvard University Press 2003).

Economic Analysis of Law, 6th ed. (Aspen Law & Business 2003).
He also published (or is about to publish) the following scholarly articles:
"The Effect of U.S. Tort Law, and of Tort-Law Reform, on the Reinsurance Industry," (unpublished, September 2004).

"Judicial Behavior and Performance: An Economic Approach," Florida State University Law Review (forthcoming).

"The Law and Economics of Contract Interpretation," (unpublished, October 2004).

"The Federal Trade Commission: A Retrospective," Antitrust Law Journal (forthcoming).

"Legal Pragmatism," in The Range of Pragmatism and the Limits of Philosophy 144, Richard Shusterman, ed. (2004).

"Intellectual Property: The Law-and-Economics Approach," Journal of Economic Perspectives (forthcoming).

"Guido Calabresi's The Costs of Accidents: A Reassessment," Maryland Law Review (forthcoming).

"Brandeis and Holmes, Business and Economics, Then and Now," Review of Law and Economics (forthcoming).

"The Evolution of Economic Thinking about Legislation and Its Interpretation by Courts," Theory and Practice of Legislation: Essays in Legisprudence (forthcoming).

"The Law and Economics Movement: From Bentham to Becker," (unpublished, December 2003).

"Torture, Interrogation, and Terrorism," in Torture: A Collection 291, Sanford Levinson, ed. (2004).

"Law and Economics in Common-Law, Civil-Law, and Developing Nations," 17 Ratio Juris 66 (2004).

"Federalism and the Enforcement of Antitrust Laws by State Attorneys General," in Competition Laws in Conflict: Antitrust Jurisdiction in the Global Economy 252, Richard A. Epstein and Michael S. Greve, eds. (2004).

"Censorship and Free Speech: First Amendment Issues in the Visual Arts," (unpublished, September 2003) (with T. J. Chiang).

"The Political Economy of Intellectual Property Law," ( AEI-Brookings Joint Center for Regulatory Studies 2004) (with William M. Landes).

"The 2000 Presidential Election: A Statistical and Legal Analysis," 12 Supreme Court Economic Review 1 (2004).

"The Impeachment and Trial of William Clinton," (unpublished, August 2003).

"Fair Use and Statutory Reform in the Wake of Eldred," California Law Review (forthcoming) (coauthored with William F. Patry).

"How Long Should a Copyright Last?" 50 Journal of the Copyright Society of the U.S.A. 1 (2003).

"Legal Pragmatism," 35 Metaphilosophy 147 (2004).

"Pragmatic Liberalism versus Classical Liberalism," 71 University of Chicago Law Review 659 (2004).

"The Constitutionality of the Copyright Term Extension Act: Economics, Politics, Law, and Judicial Technique in Eldred v. Ashcroft," Supreme Court Review 143 (2004).

"An Empirical Analysis of the Patent Court," 71 University of Chicago Law Review 111 (2004) (with William M. Landes).

"The Long-Run Growth in Obesity as a Function of Technological Change," Perspectives in Biology and Medicine, Summer 2003 Supplement, p. S87 (with Tomas J. Philipson).

"Misappropriation: A Dirge," 40 Houston Law Review 621 (2003).

"Cognitive Theory as the Ground of for Political Theory in Plato, Popper, Dewey, and Hayek," Advances in Austrian Economics (forthcoming).

"John Dewey and the Intersection of Democracy and Law," in Dewey, Pragmatism, and Economic Methodology 167, Elias L. Khalil, ed. (2004).

"Animal Rights: Legal, Philosophical, and Pragmatic Perspectives," in Animal Rights: Current Debates and New Directions 51, Martha C. Nussbaum and Cass R. Sunstein, eds. (2004).

"Reply: The Institutional Dimension of Statutory and Constitutional Interpretation," 101 Michigan Law Review 952 (2003).

"Norms and Values in the Economic Approach to Law," Economic Analysis of Law: A European Perspective, Aristides N. Hatzis, ed. (forthcoming).
He also published the following shorter articles:
"Transaction Costs and Antitrust Concerns in the Licensing of Intellectual Property," Les Nouvelles: Journal of the Licensing Executives Society (forthcoming).

"Against Law Reviews," Legal Affairs (November/December 2004)

"Eldred and Fair Use," The Economists' Voice, September 2004, http://www.bepress.com/ev/vol1/iss1/art3.

Review of The New Annotated Sherlock Holmes, Leslie S. Klinger ed. (2004) New Republic (October 11, 2004).

Guest Blogger, "Lessig Blog," Aug. 23–29, 2004, http://www.lessig.org/blog/archives/2004_08.shtml.

"The 9/11 Report: A Dissent," Review of Final Report of the National Commission on Terrorist Attacks upon the United States, New York Times Book Review 1(Aug. 29, 2004).

"Law, Pragmatism, and Democracy: A Response to Ilya Somin," Critical Review (forthcoming).

"Constitutional Law from a Pragmatic Perspective", review of David M. Beatty, The Ultimate Rule of Law (2004) University of Toronto Law Journal (forthcoming).

"The People’s Court" (Review of Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review [2004]), New Republic, July 19, 2004, p. 32..

"Citing the Decisions of Foreign and International Courts," Legal Affairs (forthcoming).

"Foreword," in Aspasia Tsaoussis-Hatzis, The Greek Divorce Law Reform of 1983 and Its Impact on Homemakers: A Social and Economic Analysis ix (2003).

"Richard Posner Replies [to Evan Gerstmann]," New Republic 5 (February 16, 2004).

"Community and Conscription," Rethinking Commodification: Readings in Law and Culture (forthcoming).

"Smooth Sailing," Legal Affairs 40 (Jan./Feb. 2004).

"Civil Liberties and National Security: The Pragmatic Approach" (unpublished, December 2003).

"Democracy and Judiciary: A Comment on Aulis Aarnio, The Court System and Democracy," Ratio Juris (forthcoming).

"Wedding Bell Blues," Review of Evan Gerstmann, Same-Sex Marriage and the Constitution [2004], New Republic 33 (Dec. 22, 2003).

"Pragmatic Liberalism Defended," University of Chicago Law Review (forthcoming).

"The End Is Near," Review of Margaret Atwood, Oryx and Crake (2003), New Republic 31 (Sept. 22, 2003).

"Law and Economics in Common Law and Civil Law Nations," 7 Associations: Journal for Legal and Social Theory 77 (2003).

"Hayek, the Mind, and Spontaneous Order: A Critique," Transactional Viewpoints 1 (Summer 2003).

"Our Technological Future?" New Republic (forthcoming).

"Desperate Times, Desperate Measures," Review of Daniel Farber, Lincolns Constitution, New York Times Book Review 20 (August 24, 2003).

"Richard A. Posner Replies," [to William A. Galston], New Republic 5 (July 28 & Aug. 4, 2003).

"An Army of the Willing: Why Conscription Does Not Serve Community," New Republic 27 (May 19, 2003).

Review of Daniel Farber, Lincoln's Constitution (March 2003, unpublished).

"The Anti-Hero," Review of Bruce Allen Murphy, Wild Bill: The Legend and Life of William O. Douglas (2003), New Republic 27 (February 24, 2003).
In addition, a LEXIS search reveals that in 2003-04, there have been 171 opinions written by Posner in his position as a Seventh Circuit judge. (I've heard that he ruffled some feathers when he first joined that court and asked to hear double the number of cases assigned to other judges.) He also wrote 4 concurrences and 5 dissents.

And he does all of his own writing. Here's what Fortune Magazine said in a 2000 article:
Unlike most judges, moreover, Posner drafts all his own opinions. Though his clerks describe him as a relaxed family man who likes to dally at lunch and keeps unremarkable hours, Posner magically assumes the productivity of J.S. Bach when he sits down at the keyboard. "He has the ability to write final prose in his first draft," says Harvard Law professor Lawrence Lessig, who clerked for Posner in 1989. "He could go home in the evening and produce two 30-page, single-spaced opinions, with citations, in one evening. They were good enough to be published without any editing."
Amazing. No, astounding. No, there aren't adjectives strong enough to describe it.

Posner's Blog

And oh yes: Apparently the above schedule of publications isn't enough. Posner is about to start a blog with Gary Becker.

Monday, November 29, 2004

The Sex Ratio

Compare these two observations:
James Q. Wilson, writing about China's demographics:
The authors neglect one offsetting benefit of having more young men than young women. In the U.S., a high sex ratio is statistically associated with high rates of marriage and low rates of illegitimate births. This argument, first made by Marcia Guttenberg and Paul Secord and amplified in other studies--and in my book, "The Marriage Problem"--arises from the laws of supply and demand.

If there are a lot of men for young women, then the women will trade sex in exchange for what they value, which for most women is a stable relationship--that is, marriage and two-parent child care. But if men are scarce and women abundant, then women will lose their bargaining power and exchange sex for whatever is available: one-night stands, illegitimate children or even prostitution. In the U.S., African-Americans have a very low sex ratio, and the consequences of that fact are obvious.
Hugh Schwyzer, writing about the growing imbalance between women and men on college campuses:
A very fine article in the Sunday LA Times yesterday: A Growing Gender Gap Tests College Admissions. It deals with an increasingly familiar story: the growing imbalance between male and female students on college and university campuses across the country. At a great many schools, women are now approaching (or exceeding) 60% of the student body; some schools (as detailed in the Times piece) are now apparently lowering standards for male applicants in hopes of achieving greater balance.
* * *
On another level, I wonder how this gender gap contributes to the "hook-up culture" on college campuses. On the one hand, young women may feel increasingly sexually emboldened, and young men increasingly comfortable seeing women in positions of power. On the other hand, young men know that the high numbers of young women around gives them less incentive to date anyone exclusively. Why be faithful to one gal when the "odds" are so good?

Greatest Rock Songs?

Rolling Stone has generated some publicity for its list of the 500 "greatest rock & roll songs of all time." Which sounds like a list of the greatest commercials of all time. Some commercials are indeed clever, witty, etc., but the very genre itself is stunted and puny compared to the possibilities available to actual film-makers. Same for pop/rock music: The very genre places few intellectual demands on the composer. If you added up all of the musical skill needed to write every last popular song from the past century (I include all genres here: rock, pop, rap, hip-hop, big band, etc., etc.), you still wouldn't have a sum total that is anywhere near the musical skill needed for Bach to write the Goldberg Variations. (Speaking from personal experience, I can write a pop-sounding song in a few minutes of doodling around on the piano, but I am floored with awe at Bach's sheer technical prowess.)

After all, look at what Rolling Stone says about the "greatest" song of all time: Bob Dylan's "Like a Rolling Stone":
Al Kooper, who played organ on the session, remembers today, "There was no sheet music, it was totally by ear. And it was totally disorganized, totally punk. It just happened."
It is impossible to imagine a classical composer saying that about a fugue, or a canon, or a symphonic movement in sonata form. The very genres used by classical composers require skill, ability, talent, and hard work -- more than just fooling around.

This is what makes me roll my eyes whenever I come across musical critics who sneer at most pop music while praising the supposed artistic sensibilities of their favorite pop artist (say, Radiohead or Wilco). To me, this sounds like one 6-year-old trying to brag that his mud-pies are more artistic than the neighbor kid's mudpies. Or it's like getting into an argument over who has made the most intellectual movies: Jean Claude Van-Damme or Steven Seagal? Sure, maybe you can make out an argument that one is better than the other, but at the end of the day, you're still talking about genres that (while fun) are vastly inferior.

Not that there's anything wrong with listening to pop/rock music. I have my own favorites (such as Keane or Nickel Creek or Sixpence None the Richer). Still, someone who listens only to pop/rock music is like a reader who never progresses beyond "The Cat in the Hat." No matter how much fun it is to read that sort of book occasionally (and no matter how creative Dr. Seuss was), you're missing out on a whole world of books that are beyond that level.

UPDATE: I know, I know, what I say above is very provocative (or inflammatory?). Just to clarify, let me put it this way: A pop/rock/country/rap song is akin to haiku or a limerick. There are all sorts of haikus, from the banal to the profound, and all sorts of limericks, from the hackneyed to the hilarious. But no matter how much you like a given haiku or limerick, you're still dealing with a very limited form. In the world of classical music, by contrast, you have a wide range of forms that are the equivalent of everything from a 14-line sonnet to Beowulf to Milton's Paradise Lost to a Shakespearean play. When you have more sophisticated forms at your disposal, you can achieve incomparably greater depth, power, range of emotion, etc., etc. Besides, it obviously takes much more work and skill to write Hamlet than to write any haiku ever written, if only because Hamlet is so much longer. Just as well, it takes much more work and skill to write a symphony than a pop song.

Friday, November 26, 2004


A couple of charities that strike me as worthwhile are the Sphinx Organization, and the National Fatherhood Initiative.

Thursday, November 25, 2004

Interesting Article

Wow -- an AER article finding no evidence for the endowment effect. This should be interesting:
The Willingness to Pay/Willingness to Accept Gap, the Endowment Effect, Subject Misconceptions and Experimental Procedures for Eliciting Valuations

Georgetown University Law Center
California Institute of Technology - Division of the Humanities and Social Sciences

Georgetown Law and Economics Research Paper No. 615861
American Economic Review, 2004

We conduct experiments to explore the possibility that subject misconceptions, as opposed to a particular theory of preferences referred to as the "endowment effect," account for reported gaps between willingness to pay ("WTP") and willingness to accept ("WTA"). Two facts are evident in the literature. First, there is no consensus regarding the nature or robustness of the WTA-WTP gap. Secondly, while experimenters are very concerned to avoid subject misconceptions, there is no consensus about the fundamental properties of misconceptions or how they might be avoided. Instead, experimenters have revealed different conceptions of the phenomena through different types of experimental procedures and controls. Such controls involve the role of anonymity, elicitation mechanisms, practice and training applied separately or in different combinations. The resulting pattern of research leaves open the possibility that the widely differing reports of a gap between WTP and WTA could be due to an incomplete science regarding subject misconceptions. The lack of a theory of misconceptions is replaced by what we will call a revealed theory methodology in which theories implicit in experimental procedures found in the literature are at the heart of the new experimental design. Thus, the approach reported here reflects an attempt to simultaneously control for all dimensions of concern found in the literature. To this end our procedures modify the Becker-DeGroot-Marschak mechanism used in previous studies to elicit values. In addition, our procedures supplement commonly used procedures by providing extensive training on the elicitation mechanism before subjects provide WTP and WTA responses. Experiments were conducted using both lotteries and mugs, goods frequently used in endowment effect experiments. Using the modified procedures, we find no support for the hypothesis that WTA is significantly greater than WTP. In addition, we find no support that an observed gap can be convincingly interpreted as an endowment effect and conclude that further evidence is required before convincing interpretations of any observed gap can be advanced.

Tuesday, November 23, 2004

More on "Scalito"

Will Baude writes to point out that if you do a LEXIS search for "Scalito," the very first use of the term is in a 1992 National Law Journal article, and it involves the very same "strange locution" in which the term is ascribed to other -- anonymous -- people. This is what the article says:
Judge Alito is described by lawyers as exceptionally bright, but much more of an ideologue than most of his colleagues. It's a trait that has led some to nickname him "Scalito," after the acerbic Supreme Court Justice Antonin Scalia.
Led WHO to nickname him "Scalito"? Has anyone ever used the word "Scalito" besides journalists who think it's a clever pun?

UPDATE: See the second comment below, where a journalist says that he was the first to coin the term. See also this post.

More Oppression

Is there no end to the oppression caused by Ashcroft and the Patriot Act? From the Nov. 17 edition of The Economist:
France has a strikingly harsh anti-terrorism policy. It has had no qualms in making the most of laws allowing the detention of terrorist suspects without trial for months on end. All four of its nationals repatriated from Guantánamo Bay were detained on a judge's instruction on their return to France. Dominique de Villepin, Mr Sarkozy's successor as interior minister, has been unyielding in his determination to expel imams guilty of hate crimes. When an expulsion order against Abdelkader Bouziane, an Algerian cleric based near Lyon, was overruled in the courts, Mr de Villepin changed the law — and Mr Bouziane was on the next plane out.

For Mr de Villepin, the trade-off between security and civil liberties is a fine one. But he insists "we must never find ourselves in a position of powerlessness". The French monitor activity at mosques across the country, reckoning that of 1,500 Muslim prayer places, some 50 preach a radical form of Islam. * * *

Yet Germany is not oblivious to the threat. As in France, the government is getting tougher on Islamic fundamentalists, even as it tries to foster integration. This double strategy underpins Germany's new immigration law: it facilitates the expulsion of Islamic radicals, but also makes language classes mandatory for immigrants.
* * *
In Germany, as elsewhere, there is now more emphasis on toughness. In October, after four years of legal manoeuvring, Germany ejected Metin Kaplan, the Turkish founder of an illegal Islamic group. There is less tolerance for radical Islamists using legal tricks to stay in Germany. The rule of law must "show its edge", says Otto Schily, the interior minister.
UPDATE: Orin Kerr describes more of the Patriot Act's horrors.

British Anti-Terror Laws

A British official comments on forthcoming anti-terror laws there:
Tough new laws on terrorism could be passed if Labour wins a third term in power, Home Secretary David Blunkett has indicated.

Mr Blunkett said officials were looking at a range of measures - from jury-less anti-terror courts to allowing wire-tap evidence in trials - which could be implemented if Labour is re-elected at the General Election.

He said that civil orders - similar to anti-social behaviour orders - could be imposed against individuals who had not committed an offence but were suspected of "acts preparatory to terrorism".
* * *
Clearly, this can all be traced to Ashcroft and the Patriot Act.

Monday, November 22, 2004

Supreme Court nominees

Jeffery Rosen has an interesting discussion of potential Supreme Court nominees here. He correctly notes that Michael McConnell is the “most respected conservative legal scholar of his generation, and liberals and moderates throughout the legal academy would enthusiastically support his nomination.”

* * *

This is a minor point, but when Rosen discusses Judge Sam Alito of the Third Circuit, he prefaces it with the usual remark that Alito is known as “Scalito” for his resemblance to Justice Scalia. To my mind, this prompts the question: Who has actually used the term “Scalito” in any context other than describing what other people are supposedly saying? I can’t count the number of articles I’ve seen over the past several years that claim that Alito is “known as” Scalito. But says who? Who actually calls him that?

Sunday, November 21, 2004

The Paradox of Choice

Barry Schwartz's The Paradox of Choice argued that when we have more choices of consumer items, it can actually lead to less satisfaction. From one review:
Research in the wake of Kahneman and Tversky has unearthed a number of conundrums around choice. For one thing, choice can be “de-motivating.” In a study conducted several years ago, shoppers who were offered free samples of six different jams were more likely to buy one than shoppers who were offered free samples of twenty-four. This result seems irrational—surely you’re more apt to find something you like from a range four times as large—but it can be replicated in a variety of contexts. Students who are offered six topics they can write about for extra credit, for instance, are more likely to write a paper than students who are offered thirty.

Why should this be? Schwartz suggests that it has to do with the irrational way people measure “opportunity costs.” Instead of calculating opportunity cost as the value of the single most attractive foregone alternative, we seem to assemble an idealistic composite of all the options foregone. A wider range of slightly inferior options, then, can make it harder to settle on one you’re happy with. Similarly, when people direct their wants toward “classes” of goals, they tend to figure they’ll get a better-than-average example of the class. When a person says, “I feel like a plate of spaghetti,” he envisions a particularly good plate of spaghetti. And, as the psychologists Daniel Gilbert, of Harvard, and Timothy Wilson, of the University of Virginia, have observed, “If it is difficult to know whether we will be happy fifteen minutes after eating a bite of spaghetti, it is all the more difficult to know whether we will be happy fifteen months after a divorce or fifteen years after a marriage.”

There are even cases, as Schwartz notes, where just one additional choice can produce outright paralysis. Tversky and the young Princeton psychologist Eldar Shafir asked experimental subjects how they would react to a desirable Sony appliance placed in a shopwindow, radically marked down. The offer met with predictable enthusiasm. When a second appliance, similarly marked down, was placed alongside the bargain Sony, enthusiasm—and sales—dropped. Some hypothetical customers were evidently frozen by indecision.
This hasn't been mentioned in any reviews of the book (so far as I can tell), but Schwartz's thesis strikes me as a perfectly obvious and straightforward implication of the reasoning that Ronald Coase used when formulating his famous theorem. When more choices are added to the mix, transaction costs rise. (That is, when there are more choices, you have to gather more information -- a transaction cost.) And when there are higher transaction costs, there are fewer transactions.

Whole language

Don't miss Professor Plum's fisking of several dozen unbelievably idiotic statements made by whole language advocates.

Thursday, November 18, 2004

A German Lesson for Remaking Iraq

The astute Anne Applebaum offers a lesson on how we should view Iraq in light of the East German liberation from Communism:
In a week in which U.S. and Iraqi soldiers are fighting one of the bloodiest and most difficult battles of the whole Iraqi conflict, it doesn't sound terribly comforting to write that 'these things take a long time.' But they do, and for Americans accustomed to fast results, it can't be repeated often enough: East Germany is proof that it is possible to do everything right and still leave millions of people feeling cheated by liberation many years later. I don't know whether Iraq will ever be a 'success,' but even if it is, we may not know for several decades. If it was a grave misjudgment to ignore that fact before the Iraqi war began, it would be no less catastrophic to do so now.

Lost Tribe?

A fascinating, but short, article on a group of people in India who may be one of the "lost tribes" of Israel.


The Federalist Society has now made available the transcripts of the addresses by Bill Frist and John Ashcroft (both PDF files).

Tuesday, November 16, 2004

Red States vs. Blue States

A classmate wrote me the following email:
I read your post on the tax/spending distribution between red and blue states, and had to comment on it b/c it's a pet peeve issue of mine. Although I am a blue-stater who paid over six-figures in taxes last year, the claim that red states are fiscal leeches of blue states is, well, a red-herring.

The Tax Foundation -- which is the source for the stat that red staters take in more federal money than they pay in taxes -- lists three reasons why this disparity exists: http://www.taxfoundation.org/ff/taxingspendingupdate.html

(1) The main reason for this disparity is that the population is older in the red states (at least right now), and hence more red-staters receive Social Security and Medicare. Given that entitlements comprise the majority of the federal budget, it's not surprising that this is the main reason for the disparity. Twenty or thirty years from now on, it is quite possible that it will be the blue-states that have an older population and hence will take in more federal money than they pay in taxes.

(2) More defense bases are in red states than in blue states. But since the military protects all of us, it's not fair to somehow claim that the red-staters are leeching off the blue-staters.

(3) There are higher-income folks in the blue-states, so they pay more. But since so many high-income blue-staters are the ones who vote for politicians who will raise taxes on them, there's no basis for the complaint that blue-staters are getting the short end of the stick.


Once again, Malcolm Gladwell has written a provocative and endlessly interesting article, this time on the subject of plagiarism. A quote:
When I worked at a newspaper, we were routinely dispatched to "match" a story from the Times: to do a new version of someone else's idea. But had we "matched" any of the Times' words -- even the most banal of phrases -- it could have been a firing offense. The ethics of plagiarism have turned into the narcissism of small differences: because journalism cannot own up to its heavily derivative nature, it must enforce originality on the level of the sentence.


I spent some time Saturday talking about Iraq with my brother-in-law, who went to both Afghanistan and then Iraq as a military intelligence officer in the 101st Airborne. He had some interesting comments:
  • On the initial war phase: "3d ID [Infantry Division] could have taken Iraq by themselves."

  • On the weapons question: "One of my guys found a mobile chemical weapons lab hidden in a cave near Mosul. One of the locals tipped us off, or we'd have never found it."

    [I think that this may have been the mobile lab in question.]

  • When they first got to Mosul, they set up in Saddam's old palace there. "People were all over the place. Before, only Saddam and his guys were even allowed on the palace grounds. But now, it was like take-your-children-to-the-park day. People were playing soccer with their kids, selling fruit, etc."

  • An incident related to their arrival in Mosul: "One of my guys got proposed to." Me: "Are you serious? How long did that take?" Brother-in-law: "Oh, about 4 hours after we got to Mosul. It was a college student who spoke English, and she was looking for a ticket out of Iraq." [The guy was already married, by the way.]

  • On Kerry's claim to "have a plan": "There's a saying in the Army: 'Every plan goes out the window as soon as the first bullet is fired.'"

Monday, November 15, 2004


I'm glad to see that Michael McConnell is starting to get the attention that he deserves as a potential Supreme Court nominee.

Voting and Charity

Two interesting facts to consider together:

1. As has been often noted, the states that voted for Bush are, on average, net recipients of federal spending, while the states that voted for Kerry, on average, pay more in taxes than they receive from the federal government.

Why is this? Probably lots of factors: The Kerry states are richer, and so pay more in taxes in the first place. The Bush states are poorer, and probably have more folks on welfare. The Bush states are also more rural, and might have more military bases, national parks, federally-owned land, etc., etc. These are all just guesses, though, and I wonder if there is any actual study that examines the nature of federal spending, state-by-state.

2. By contrast, as noted here, the Bush states are the most generous with charitable giving. Indeed, as Patrick Carver points out, the top 24 most generous states are "red states." Thus, it's odd to rely on federal spending as an excuse for vilifying the "red states" as greedy, as some left-leaning people have been wont to do lately.

Sunday, November 14, 2004

A Report

I've been out of town -- I got sworn in to the D.C. Bar on Friday, went to some of the Federalist Society convention on Friday night and Saturday, and then spent several hours with one of my sisters and her husband and child (they live in Virginia and drove up to D.C., where we met at her husband's brother's house).

Some observations from the trip:
  • I have to admit, it's kind of thrilling to meet a federal appeals court judge for the first time, and to receive the reaction: "Stuart Buck?! I read your blog!"

  • On the flight there, I sat next to a guy who works for a book publishing company and sells books to Wal-Mart. I asked him, "So how much difference is there between placing a book in a bookstore versus placing it in Wal-Mart?" His answer: "There's no comparison. If we get a book in Barnes & Noble, we might sell 10,000 nationwide. If I get it in Wal-Mart, we might sell 500,000."

  • There were lots of bloggers at the convention. One of the first people I ran into when I arrived at Scalia's lecture on Friday was Stephen "Feddie" Dillard of Southern Appeal. The room was totally packed, but I found a seat in the very back next to Eugene Volokh (who I hadn't seen in person in a couple of years), on the other side of whom was Cumberland Law School's Michael DeBow (who also posts sometimes at Southern Appeal) and then the Univ. of San Diego Law School's Gail Heriot of The Right Coast.

  • What I saw of the convention was an intellectual treat, as usual. The Federalist Society does more than any other organization I can think of to encourage practicing lawyers to come together and hear high-minded intellectual issues being debated. Where else -- outside of occasional events at universities -- can you go to hear DOJ's top civil rights lawyer debate against an ACLU lawyer? Or Michael Klarman debate with Michael McConnell on whether the rise of Jim Crow laws might have been inhibited had 2 votes switched sides in the debates over the Civil Rights Act of 1875, such that the bill would have banned school segregation? (Yes, Congress came that close to banning segregation in the early 1870s.)

  • Is there anything to the New York Times story that Bush is nominating Alberto Gonzales as AG so as to "bolster Mr. Gonzales's credentials with conservatives and position him for a possible Supreme Court appointment"? Some informed observers think that story was specious and ill-reasoned. Gonzales is already perfectly positioned to be nominated to the Court (if that's what Bush wanted to do), and he'll likely come under serious criticism both during AG confirmation hearings and for whatever he actually does as AG.

Thursday, November 11, 2004

Law Reviews

Steve Sanders posts this response to Richard Posner's article on law reviews.

Saturday, November 06, 2004

Conservative Christians and Social Justice

Mark Schmitt asks this thought-provoking question:
We are clearly in the middle of one of the great periods of Christian revival in American history, the third or fourth of the "Great Awakenings" in American Protestantism. Each such period has begun with a change in the nature of worship itself, essentially a private phase, and moved onto a public phase where it engaged with the political process. These have been significant moments of progress for this country. The Second Great Awakening led in it public phase to the Abolitionist movement. What some historians consider the Third Great Awakening beginning in the 1890s led to the Social Gospel movement, settlement houses, and the beginnings of the progressive era idea of a public responsibility to ameliorate poverty.

The right question, I think, is not whether religion has an undue influence, but why it is that the current flourishing of religious faith has, for the first time ever, virtually no element of social justice? Why is its public phase so exclusively focused on issues of private and personal behavior? Is this caused by trends in the nature of religious worship itself? Is it a displacement of economic or social pressures? Will that change? What are the factors that might cause it to change.
To which Tim Scanlon, a philosopher of some note, responds:
But a concern with justice is not merely a concern with alleviating suffering but a concern with changing unjust social institutions. There is little or none of this concern even at the level of rhetoric in the Christian movements. Your question asks, rightly, why this is so. In answering, we should distinguish between what may be true of the Christian revival you mention and what is true of the use that is made of it in our current politics. As far as the latter is concerned, it is noteworthy that the appeals to moral values almost never require any sacrifice on the part of those to whom these appeals are addressed. They are invited to feel good about their superiority to gays, righteous about their opposition to abortion, satisfied about their devotion to family and so on.
I want to address the bolded text, because it is utterly false.

The exact opposite is the truth. Whether you look at the broadcasts of James Dobson, or the many family-oriented Christian books, or the Promise-Keepers movement, you'll find the same thing: Moral exhortations addressed to other Christians, preaching to them about the many ways that they likely fall short of being a good parent or spouse, and urging them to put their families ahead of career, friends, etc. Far from "never requir[ing] any sacrifice on the part of those to whom these appeals are addressed," the whole point of these appeals is to hector Christians into sacrificing their own desires, if need be, for the sake of their families.

I could well imagine someone criticizing Christian pro-family materials for being too harsh and perfectionist in making demands on other Christians. But the opposite criticism is bizarre. It's as if someone said, "The problem with environmentalist literature is that it never makes any demands on its readers; it just encourages them to feel satisfied about their own consumption of natural resources."

McConnell for Chief Justice

Some law professors are supporting Michael McConnell (formerly a law professor and now a 10th Circuit judge) for the position of Chief Justice. Michael Rappaport says:
McConnell would be likely to be confirmed. Democrats could do far worse, from their perspective, than a nominee who has integrity, is collegial, and respects those who disagree with him. In fact, McConnell's personality seems to be a perfect fit with the job of Chief Justice.
Eugene Volokh says that "Michael McConnell, a leading constitutional scholar who has served on the U.S. Court of Appeals for the Tenth Circuit since January 2003, would make a great Supreme Court Justice (in particular, Chief Justice, when the spot opens up)," and cites an earlier essay in which he listed McConnell as one of five nominees who would be "tremendous additions to the court, and important contributions to George W. Bush’s legacy -- justices who would be remembered for decades as first-rate minds and first-rate judges."

For what it's worth, let me add my voice of support. McConnell was one of the best professors I had in law school. He was visiting at Harvard that term, and taught a class on Religion and the First Amendment.

Appointing McConnell would have lots of advantages for Bush. There’s no doubt that McConnell would enjoy the support of evangelicals -- as he did during his 10th Circuit confirmation and when being considered for Solicitor General. He’s a committed Christian and, while able to engage in private practice, was the nation's leading advocate for religious freedom.

But McConnell also has the advantage of being known by left and right as a soft-spoken, modest, conciliatory, and generous man with an extraordinarily gifted mind. On his nomination to the 10th Circuit, more than 300 academics -- including liberals such as Cass Sunstein, Larry Tribe, Akhil Amar, Saul Levmore, Elana Kagan, Suzanna Sherry, Tony Kronman, and Larry Kramer, to name a few -- supported him “enthusiastically.” Some of these folks might back away from him when it comes to a Supreme Court nomination. But it would be hard for them to do much to oppose him vigorously, given their earlier support. And the fact that so many on left and right have recognized his talents and character would give the President -- and people like Arlen Specter -- cover. Indeed, McConnell would even meet Specter’s criterion for a judge who holds the potential for “greatness.”

In short, with his mind, character, and consensus-building touch, it’s hard to imagine a better Chief Justice than Michael McConnell.

UPDATE: Bill Kristol has now actually predicted that McConnell will be nominated for the Chief Justice slot. This is a good sign for McConnell supporters.

Thursday, November 04, 2004


From the transcript of an Arlen Specter press conference:
MACINTOSH: What are the characteristics that you are looking for in any candidate for the high court who might come your way in the next year or two?

SPECTER: Well I would like to see a select someone in the mold of Holmes, Brandeis, Cardozo, or Marshall. With all due respect to the U.S. Supreme Court, we don't have one. And I haven't minced any words about that during the confirmation process.

* * *

ODOM: Senator, the judges you mentioned are obviously renown. Are you saying that there are no greatness on there, is that what you're driving at?

SPECTER: Yes. Can you take yes for an answer Vernon? I'm saying that we don't have anybody of the stature of Oliver Wendell Holmes, or Willy Brandeis, or Cardozo, or Marshall. That's what I'm saying. I'm saying that we have a court which they're graduates from the Court of Appeals from the District of Columbia basically, some other Circuit Courts of Appeals. I think that we could use, and I am repeating myself again, a Holmes or a Brandeis.
Two thoughts:

1) Willy Brandeis? Please tell me that this is a transcription error.

2) What on earth does he mean by pointing out that some Justices have come from the D.C. Circuit or other circuits? Does that prevent them from being great? Should they all come from the Massachusetts Supreme Judicial Court, as did Holmes? Or is he intending to imply that previous judicial experience is harmful? Why?

Terror-related Arrests

This story makes a point that I've touched on several times:
WASHINGTON (AP) - More than 700 people were arrested on immigration violations and thousands more subjected to FBI interviews in an intense government effort to avert a terrorist attack aimed at disrupting the election.
As with past unrealized al-Qaida threats, law enforcement officials said Thursday they don't know for sure whether any of those arrests or interviews foiled an attack.

"It's very hard to prove a negative," Michael Garcia, chief of Immigration and Customs Enforcement, said in an interview Thursday. "We did cases and operations for people we thought posed national security concerns. We didn't arrest anyone who had a bomb."
The uncertainty that is necessarily involved here is what causes so many problems. For all we know, the FBI might just have arrested someone who was about to commit a terrorist act. But up to now, that person might not be guilty of anything more than immigration violations (just as could have been said of the 9/11 hijackers on 9/10). On the other hand, all these folks could be completely innocent, just in the wrong place at the wrong time, etc.

Voting Map

The USA Today map of the county-by-county results is below:

So Kerry won: (1) Big cities; (2) Parts of the far northeast; (3) The Mississippi Delta region; (4) Other regions of Southern states that have high black populations; (5) The area in Texas that has the most Mexican immigrants; (6) Parts of Appalachia; (7) In the Western states, areas that have Indian reservations (a map of reservations is here, and it very closely matches Kerry's county wins in Montana, New Mexico, Arizona, and South Dakota, for example). All of that seems intuitively obvious, but the one region I can't figure out is the big pocket of blue in Iowa and southern Wisconsin. Something to do with farming policies, perhaps?

The following image, from Boing Boing, is more sophisticated, as it scores all of the states based on the proportions that voted Republican or Democratic. Instead of vast seas of red punctuated by little pockets of blue, you see vast seas of . . . purple. Which makes sense, because it's not as if Democratic voters were completely absent in all the states that Bush won, or vice versa.

Higher Turnout

Higher turnout doesn't always favor Democrats, as Baseball Crank shows.

Wednesday, November 03, 2004

The Black Vote

Before the election, some were predicting that Bush would get 15%-18% of the black vote. As it turned out, Bush won 11% of the black vote, up from 9% in 2000.

This is actually somewhat surprising. After all, I've seen endless stories saying that the black community especially resents Bush because they think they were cheated in Florida in 2000; that blacks resent the fact that Bush has refused to meet with the NAACP; that blacks resent the war in Iraq; that blacks were getting angry over supposed Republican plans to keep blacks from voting. On and on, reason after reason why the black community hates Bush more than ever.

And yet, Bush apparently won the black vote by a higher margin than in 2000. In fact, there were apparently some 22% more blacks who voted for Bush yesterday (11 is 22 percent more than 9).

I'd be curious to see those figures broken down by state. Were blacks more pro-Kerry in Florida? Or not? Where and why were there any regional variations?

This article, for example, recites all of the above reasons why the black community dislikes Bush. Then it concludes with this, about Ohio:
In Ohio, the legal struggle over Republican efforts to challenge votes continued throughout Tuesday, with the U.S. Supreme Court refusing to overturn a lower court ruling allowing GOP challengers to be present.

The controversy stoked resentment in the swing state's black community, and may have had the unintended effect of increasing turnout. The black vote in Ohio accounts for about 9 percent of the total, and exit polls indicated that roughly 84 percent were favoring Kerry.
Well, if exit polls indicated that only 84 percent favored Kerry in Ohio, that means that about 16% favored Bush -- meaning that the proportion of blacks who supported Bush in Ohio was about 1.5 times the national average.

International Monitors

What the international monitors thought of our election
Global monitors find faults

By Thomas Crampton International Herald Tribune
Wednesday, November 3, 2004

The global implications of the U.S. election are undeniable, but international monitors at a polling station in southern Florida said Tuesday that voting procedures being used in the extremely close contest fell short in many ways of the best global practices.

The observers said they had less access to polls than in Kazakhstan, that the electronic voting had fewer fail-safes than in Venezuela, that the ballots were not so simple as in the Republic of Georgia and that no other country had such a complex national election system.

'To be honest, monitoring elections in Serbia a few months ago was much simpler,' said Konrad Olszewski, an election observer stationed in Miami by the Organization for Security and Cooperation in Europe.

'They have one national election law and use the paper ballots I really prefer over any other system,' Olszewski said.

* * *
The United States is also nearly unique in lacking a unified voter registration system or national identity card, Gould said, adding that he would ideally require U.S. voters to dip a finger in an ink bowl or have a cuticle stained black after voting.

"In El Salvador, Namibia and so many other elections, the ink was extremely important in preventing challenges to multiple voting," Gould said. "In Afghanistan it didn't work so well, because they used the dipping ink for the cuticles, so it wiped right off."
You know, they have a point.

2016 Presidential Race

Who will run in the 2016 presidential race? I'll go out on a limb here and predict that it will be Barack Obama vs. Bobby Jindal. They are both rising stars that each party will be eager to promote. And it will be a great day in America when such a race could happen.

Margin of Victory

Regarding Bush's campaign strategies, one politician said this:
Rep. Rahm Emanuel (D-Ill.) said that however the election turns out, Bush made a choice that he did not have to make: 'He could have chosen a 55 percent strategy, yet instead he went for a strategy that at best gets him to 50.001.'
An odd thing to say. It's possible that by shifting his positions on various issues, Bush might have picked up an extra 5% of the electorate somewhere. But he was not going to do so on any major issue, or he might well have lost 5% (or more) somewhere else. Anyway, many of the people who are squarely in the middle are inherently difficult to appeal to in the first place. There's just no telling what sort of minor issue or event will tip them one way or the other.

Supreme Court retirements

David Bernstein ascribes Rehnquist's failure to retire at some point in the last four years to the "will to power":
He could have resigned in 2003, and virtually guaranteed that he would be replaced with a Bush appointee. Instead, he could not pry himself loose from the power and prestige of his office, and instead chose to hang on into his 80th year. For putting his own love of the Chief Justiceship above the cause of ensuring that a (reasonably) like-minded individual replace him, Rehnquist deserves the contempt of all Federalists in good standing. (I know it's tough to give up power, but can we all take a lesson from George Washington in that regard?)
I vote for the theory -- which I saw somewhere else but can't remember where at the moment -- that the 5 Justices who decided the outcome in Bush v. Gore also decided not to retire during that Bush term. They thought that it would appear too unseemly to retire after having made the decision that helped Bush gain office. (The counting in Florida would likely have reached the same outcome anyway, but the decision was made at a time when that was unknown.)

Otherwise, the failure of Rehnquist and O'Connor to retire in the past 4 years is totally inexplicable. Yes, the "will to power" might play a role. But both Rehnquist and O'Connor are getting very old, and they both are doubtlessly well aware that (1) they would like to be replaced by a Republican and (2) Bush could easily have lost reelection. A choice in favor of personal honor is what best explains why they didn't retire last year.

Tuesday, November 02, 2004


More superb and scathing thoughts from Professor Plum on the state of education in this country.

Then there's his personal intro, which is scathing and hilarious:
I did graduate work in sociology at Washington University--where around 1969 we had a school for autistic children. The next 25 years I was at a large university in New England (actually, I went home after work) developing curricula for children with disabilities. One freezing night in April, 1990, as I trudged to the parking garage with snow accumulating on the north slope of my face, I realized I’d better go south before I got Bell’s Palsy. Besides, I always wanted a cuisine rich in hog by-product. So, I signed on at a school of education at a medium sized university south of the line drawn by the comedy team of Mason and Dixon, who always ended the show with “A little song. A little dance. A little seltzer down your pants.” [Actually, that was from the Mary Tyler Moore Show. Still funny. Seltzer down your pants. Ha Ha. Who does THAT?]
Everyone was nice to me—and I was nice back. [Harmony.] One of my new colleagues—a young woman who taught the computer course--said, "You know, Plum, they teach whole language and only whole language here." [Instigator!] I asked, “What’s the alternative? Half language? Three-sixteenths language? Sounds squalid to me.”

I then read about wl. Its “theory” of reading and its methods of instruction seemed way past the expiration date. Definitely the fruit of minds gone bad. THEORY of reading?! Who needs a theory? You can SEE reading! Theory of brushing your teeth? Theory of taking out the trash?

But I was a newcomer. I suspended judgment. I looked for data.

Then I did something really perverted--at a teleconference. All the ed schools in the state were watching big shots from the department of public instruction tell us that new teachers would no longer be evaluated by their principal but by a portfolio read by two consultants. I thought, “How come? Talk about expensive! Ho, boy. Another useless ‘innovation.’”

Well, this was a “conference,” so I figured I’d do a bit of conferring. I had a cold and my voice came out like the little girl’s in Exorcist. Pea soupy, if you catch my drift.

I asked, “Do you have any data showing that portfolio assessment results in better judgments of teacher quality than the judgment of a principal and mentor who see a new teacher all year?”

The images on the screen began to cough and look at each other. [Actually, I believe they looked first, then coughed.] I heard whispering on the screen and all around me. The colleagues were restless. Then the screen images offered a detailed and informative answer.

“Ahem ahem oh yes yes yes oh indeed yes, and so forth.”

The wheels came off pretty quick after that, and we were told the show was over. Afterwards, four or five of my collards accosted me and said, “That was inappropriate” and “You were not respectful.” I replied, “Nice hat,” or something equally charming.

That was my first lesson in the politics and intellectual dishonesty in education. Forced consensus. Shut up and go along. After stupification, the underlying power relations become invisible. Indeed, desirable. Ed perfessers come to like Big Brother. He takes care of them. Defends them from the wolves who are onto the game.

Over the next few years I read the websites and syllabi from hundreds of ed schools. I reviewed the literature in whole language, constructivism, “authentic assessments,” learning styles, and multiple intelligences—and other “pedagogies” that struck my cynical nature as weird beyond belief. I even tried to figure out what “brain based learning” was—because, I reasoned, “What OTHER organ WOULD be involved? Before brain-based learning was there BUTTOCKS based learning? Sure they ARE similar. Two hemispheres. A nearby segment of spine. A division down the middle. An apparatus for speaking your mind. But usually you can tell which is which. Just look for a hat!”
And there's this post, which is even more invaluable:
Why Kids Can't Read, And What You Can Do About It

Imagine an epidemic of smallpox. If your child is not immunized, odds are 50/50 he or she’ll get smallpox and suffer life-long damage. Luckily, there’s an effective vaccine. The Public Health Center in your town has the vaccine but the staff won’t use it. Why not? Because everyone in the Public Health Center believes immunization is a bad thing. They say,

“Using the vaccine is against our philosophy.”

You say, “But how will children become immune to smallpox!?”

They say, “Children naturally become immune to smallpox. They don’t need a shot. In fact, the shot is bad for them—even if gives them immunity.”

You say, “But half the children who aren’t immunized will get smallpox!”

They say, “Well, not everyone naturally becomes immune. Some children don’t become immune because they don’t get enough support from their families. And sometimes it’s a cultural thing. In other words, if children get smallpox, it’s not our fault.”

This sounds bizarre to you, but you figure, “I’m JUST a parent. What do I know? They’re the experts.” So you put your child’s life in their hands. And your child gets smallpox. Then you find out that Public Health Centers in other counties and other states DO immunize children, and almost NONE of these children get smallpox. In other words, YOUR Public Health Center has destroyed your child.

How does THAT make you feel? What are you going to do about it? It’s too late, though, isn’t it?

This is exactly the situation in reading. Anywhere from 25 to 50% of children do NOT learn to read well. In fact, children struggling at the end of FIRST grade continue struggling in fourth grade and in eighth grade. In other words, poor readers at the end of first grade are very likely to remain poor readers. And this means low-self-esteem (“I’m a dummy.”), shame (“Something’s wrong with me. I have dyslexia.”), and failure to learn other subjects that require skillful reading—math, science, history, getting into college, filling out job applications. Whole lives (and our nation) are damaged when children are not TAUGHT to read well.

I should say, They are TAUGHT to read poorly.

It would be a tragedy. It would be malpractice. And maybe it would be considered a crime, if children got smallpox because health providers didn’t BELIEVE in immunization---when the data clearly say what happens when you don’t give the immunization. The same way, it ought to be seen as a tragedy. It ought to be considered malpractice. And maybe it ought to be considered a crime, when children are MADE illiterate because teachers do not know (or refuse to use) the effective methods for teaching reading, even though 50 years of research show EXACTLY which methods—simple methods, commonsense methods—work with 99% of children regardless of family support, income, ethnicity, or anything else.
There's lots more in that post. Read the rest.


Ohio Challengers

The Sixth Circuit just overturned Judge Dlott's order that had attempted to block Ohio's law allowing challengers at the polls. Here's the relevant analysis:
Although it is possible that the plaintiffs will succeed on the merits, it is not likely. Neither district court relied upon racial discrimination as a basis for finding a likelihood of success on the merits. Instead, the courts below found a likelihood that the right to vote would be unconstitutionally burdened by having challengers present at the polling place, and that the presence of such challengers was not a sufficiently narrowly tailored way to accomplish legitimate government interests. Of course if we assume that the presence of challengers burdens the right to vote, it may certainly be argued that a more narrowly tailored approach is available. But the plaintiffs do not appear likely to succeed on the necessary primary finding that the presence of challengers burdens the right to vote. Challengers may only initiate an inquiry process by precinct judges, judges who are of the majority party of the precinct. The lower court orders do not rely on the likelihood of success of plaintiffs’ challenges to the procedure that will be used by precinct judges once a challenge has been made. Longer lines may of course result from delays and confusion when one side in a political controversy employs a statutorily prescribed polling place procedure more vigorously than in previous elections. But such a possibility does not amount to the severe burden upon the right to vote that requires that the statutory authority for the procedure be declared unconstitutional.

The balance of harms in this case is close. If plaintiffs are correct in their view of the law, assuming they have standing because of the likelihood of significant delay, they will suffer irreparable harm. On the other hand, if the plaintiffs are not correct in their view of the law, the State will be irreparably injured in its ability to execute valid laws, which are presumed constitutional, for keeping ineligible voters from voting. In particular, the State’s interest in not having its voting processes interfered with, assuming that such processes are legal and constitutional, is great. It is particularly harmful to such interests to have the rules changed at the last minute.

On balance, the public interest weighs against the granting of the preliminary injunction. There is a strong public interest in allowing every registered voter to vote freely. There is also a strong public interest in permitting legitimate statutory processes to operate to preclude voting by those who are not entitled to vote. Finally, there is a strong public interest in smooth and effective administration of the voting laws that militates against changing the rules in the hours immediately preceding the election.

Monday, November 01, 2004

Bush's Base

Matthew Yglesias posts the following. Notice the self-contradiction:
BUSH'S TOLERANT BASE. In today's column Ron Brownstein reminds us that Karl Rove once had much grander ambitions than trying (and most likely failing) to eke out a narrow win based on Election Day dirty tricks and random character smears. Instead, just as Mark Hannah allegedly did for William McKinley (I have some doubts as to the soundness of this history) Rove and George W. Bush were supposed to broaden the Republican base and lay the groundwork for an enduring GOP majority. It hasn't happened, and according to Brownstein it hasn't happened because he has "aimed his proposals squarely at the preferences of his Republican base."

The really striking think [sic] about the failure of the new Republican majority to emerge, however, is how little substantive conservatism has advanced under Bush. Federal spending has grown, not fallen, and we've seen the largest growth of domestic entitlement spending since the days of Lyndon Johnson and the dread Great Society. On immigration, Bush has badly upset his base, while failing to make any inroads among non-Cuban Latinos. The number of abortions has risen, rather than fallen. Gay rights have actually advanced considerably, no thanks to the president, of course, but without him doing anything effective to stop it. Even the least popular elements of conventional liberalism like affirmative action are still alive and well. What's more, while part of the Bushian subtext has always been a desire to de-fund and thus destroy the opposition party, the Democrats are actually better-financed than ever, albeit desperately out of power.

* * * The message in all this seems to be that conservative activists are pathetically easy to buy off -- give them some cheap talk about God and country along with a gay-bashing constitutional amendment that everyone knows won't get through Congress, and they'll give you a free pass on virtually every substantive ideological issue. As long as Bush continues in office, I suspect his core supporters will remain under his spell. But the great risk for the Republican Party is that if he loses, its base will wake up the next day and realize how little they got in exchange for their loyalty. Whether that results in simple conservative demobilization, or in renewed Republican interest in their deeply-unpopular ostensible agenda of rolling back the state, it doesn't spell good news for the GOP.
So, we're to believe two things:

1) Bush has alienated the rest of the country by aiming all of his actions "squarely" at the "Republican base."

2) Bush hasn't actually done anything for the Republican base except for a little "cheap talk."

In other words:

1) Bush is too conservative, yet

2) Bush never does anything for conservatives.

Quite a trick, I'd say.

More Ohio News

Judge Susan Dlott -- previously discussed here -- issued an order just today overturning the Ohio law that allowed poll-watchers to challenge would-be voters.