BeldarBlog

Blame-America-firsters react predictably to another soft-target tragedy in Iraq

Blogger Jeanne d'Arc at Body and Soul has a predictably left-of-center piece of America-blaming on the tragic bombing of the mosque in Najaf.   Tacitus' comments to her post have sparked a spirited discussion, of which I think he's got the better.  (His own blogpost, with a huge number of comments, is here.)  But I'm perhaps over-influenced by my shock that Jeanne still doesn't know who's to blame for the security breaches that led to the UN compound bombing almost two weeks ago.

UPDATE:  Add another left-of-center blog to my list of "those that appear to be open to civil discussion but actually can't tolerate any non-left opinions being expressed, especially ones with awkward facts."   For the sin of linking to a couple of my own prior posts rather than cutting and pasting the individual links contained therein, I've been labeled a "link whore" by Jeanne.  (This notwithstanding the fact that one of the links in my own piece was to the same NYT article that one of Jeanne's regular friends gently pointed out proved Jeanne wrong about the UN and American offers of security.)

She also apparently deleted a pair of comments I'd left on another post, and zapped the trackback I'd left on the bombing post.  I'm now told that indeed I'm not welcome on her blog because one of those comments asked if she'd considered and found a reason to reject three posts that I linked which contained reviews of three different books about the "werewolves" in post-WWII Germany; one of the reviews was in Free Republic, which Ms. d'Arc apparently regards as ... well, I dunno, something beyond the pale and worthy of immediate censorship regardless of content.  I wasn't endorsing either the review or the book being reviewed, but simply was asking if she was aware of them.  And the other comment she deleted contained links to an articles from the LA Times and Slate, those bastions of fascism! 

Such thin skin, such contempt for honest discussion.  And the fact that my ex-wife's name is "Jeanne" has nothing to do with my annoyance.  Really.  It doesn't.

UPDATE (Sun Aug 31):  Ms. d'Arc has also gone so far as to delete a comment from one reader who dared to suggest that I was being polite by merely linking back to my own lengthy blogs instead of cutting-and-pasting them in full into hers.  How someone who's left-of-center can be such a disgustingly enthusiastic censor is beyond me.  Ms. d'Arc has not, however, found the time to acknowledge that her original "rebuttal" to Tacitus' comment was just dead-bang wrong.

Colley-vorn-ya!

www.JoinArnold.com — the Schwarzenegger campaign’s official website – was formally launched on Friday.

So says the press release on the website itself.

The site was surprisingly long in coming, given that Ahh-nuld already had the URL from his Prop 49 after-school initiative last year.  "Prior to today’s formal launch, more than 15 million people have visited JoinArnold.com."   

That's probably only slightly behind the number of hits on those websites that are hosting the full-frontal nude body-builder shot of Mr. S. from back in the 1970s.  (No, I'm not going to link them, but you can find them yourself without much trouble.)

Ahh-nuld's entry into the race was the inspiration for my very first political blogposting when I started up BeldarBlog three weeks ago.  (Has it only been that long?)  I'll miss the inspirational "demand more than just showing up" graphic that adorned the site when it was under construction.

The new site looks pretty slick.  I admit to some giggling when watching the linked TV commercial from the homepage:   the musical score is sort of like what I remember from Reagan's famous "Morning in America" ads, but with Ahh-nuld's heavy Teutonic accent, you expect it to be a little more Wagner-like and a little less John Williams-like. 

The one thing that struck me as odd on a quick tour of the site, though, is how little Maria shows up.  Maybe they're trying to keep her as the "anti-Hillary," out-of-sight, so as to avoid offending Republicans who are reminded every time they see her of her Kennedy-clan status. 

But I think that's a mistake — the ones who are likely to be turned off by that are aware of it anyway.  Making her more prominent would help combat the tabloid-trash that's floating up, plus possibly attract some cross-over Dem voters who see Maria's presence as a reassurance that Ahh-nuld's a RINO.

If I were running the campaign, I'd have a big picture of the two of them, looking gorgeous — maybe running together on the beach or through the redwoods or something else obviously Colley-vorn-yan — and then feature Maria's "no-Viagra-within-50-miles"  quote in a headline font right below it.

By the way — am I the only blogger who always cuts-and-pastes his surname, rather than trying to spell it?  I think probably not!

What Judge Kazen really said on Wednesday

I owe Southern District of Texas Chief Judge George Kazen an apology!

In my post on Wednesday about the hearing he conducted that morning, I said:

From the combined press reports of his comments, it looks as if Judge Kazen wandered a bit off the farm in his public policy critiques. But I'm not too torqued about that since that stuff was all dicta — not precedent, not binding on anyone, and not actually any of his business as a federal judge.

But I've now read the official 77-page transcript of the hearing, and all I can say is:   Mea culpa maxima, Judge Kazen!  I made the cardinal mistake of believing the popular press accounts of what you'd said!

For instance, Houston Chronicle reporter R.G. Ratcliffe, whom I mistakenly praised on Wednesday for the "best reporting of the day," had said this in the second sentence of his article:

U.S. District Judge George P. Kazen said he believes Gov. Rick Perry and Lt. Gov. David Dewhurst's push for mid-decade congressional redistricting is wrong and a waste of taxpayer money.

Pretty strong stuff!  The only problem is, Judge Kazen never said the key words "wrong" or "waste."  And what he did say, he expressly said speaking as a "private citizen," not as a judge.

In a BeldarBlog-scoops-the-world original, here's what Judge Kazen actually said:

[BY THE COURT:]  For example, I mean, the argument [by the Dems] that even thinking about redistricting [before the 2010 Census] is a voting rights violation strikes me as almost bizarre.  I mean, I — I would say that it's bad policy.  I mean, I think as — again, as a citizen, it's sort of like the California recall.  I mean, you have an election one year and then do it all over again the next year and waste a lot of time and money.  I mean, the reason people don't redistrict every other year is because it's a horrendously controversial task.  It's a cumbersome task.  It's an expensive proposition.  It generates litigation and so forth.  I think it's a bad idea, but — the idea that it's somehow — the mere thought of passing a bill is a voting rights violation, it seems to me, is — is odd.{1}

At the most, these few lines, taken out of context, possibly suggest that the Republican leaders of the state are engaging in "bad policy" that is a "bad idea"  in Judge Kazen's view "as a citizen," rather than as a judge.  But that's a far cry from a federal judge saying in his capacity as a federal judge that the Republican leaders' attempt to achieve a legislative redistricting for the first time since 1991 is "wrong" — which was the word Ratliffe's article used, as if it had been a combination indictment, conviction, and sentence from the bench.

What about the "waste of money" comment?  Again, that's a much stronger formulation than the actual words Judge Kazen used:

[BY THE COURT:]  But, Counsel, let me tell you something, and then we are probably just digressing.  And I — again, I'm speaking partly as a private citizen.  I mean, my — if I were a state senator, I might be doing the same thing.  I mean, I think it's not, by any stretch, the highest priority in the State of Texas.  I think if you asked a thousand people what's the biggest problem in the State of Texas, congressionally redistricting would be way down at the bottom.  I thought the State was virtually broke and, yet, they're spending all this money to do all this.

But the fact of the business is the — you know, in a legislative body, you know, you win some and you lose some.  I mean, it's not that the senators are not — I know they represent people. But if they're in the minority — let's leave the voting rights out of it.  If they're in the minority, they're going to lose some votes.  I mean, the democratic party in Washington loses all the time now.  And — and to say, well we — you know, we — but we can do all these things without any kind of sanctions because we're representing our people and, gee, if we show up, we're going to lose the vote, I mean, that's what the country — that's how the country works.

MR HICKS:  But that's not how —

THE COURT:  The majority — the majority wins, which is why it's important for people to go to the polls and wake up and decide who they want to be in — in power or not.  Because the majority generally wins in a — in a legislative body.{2}

If you read the entire transcript, it is absolutely clear that Judge Kazen was musing, thinking out loud, speculating — rather than trying to announce his formal assessment on any issue except for one, that being whether the Dems' lawsuit is so entirely frivolous that it doesn't even merit convening a three-judge court for the purpose of deciding whether to toss it out.   

And the lines I've quoted here are just about the only even semi-encouraging words that Judge Kazen had for the Dems in 77 pages of transcript.  Even they are surrounded by critical observations — in the first excerpt, Judge Kazen's skepticism of the Dems' claim that it's an automatic violation of the Voting Rights Act for the Republicans to try to pass any sort of redistricting bill at all before the 2010 Census, and in the second excerpt, Judge Kazen's skepticism that merely losing a majority-rule vote in the Legislature in and of itself qualifies as the abridgement of a protected minority voting right, even if the losing legislator or his constituents are members of a protected minority class.

I speculated from the press reports that Judge Kazen was looking for a way to throw some cold water on both sides to move them toward settlement.  It's much harder to draw that inference from the actual transcript.  Other than a throw-away compliment that the judge made regarding the quality of the Dems' briefing — the kind of solace you give to a lawyer when you're shooting him down in flames on the merits — there was essentially nothing in this hearing from which the Dems should have taken any comfort.

Ratcliffe wasn't alone in hearing what he wanted to hear, however.  Gary Susswein and Laylan Copelin, writing for the Austin American-Statesman, didn't use the sexed up words like "wrong" or "waste," but were equally guilty of taking isolated musings of the judge, speaking as a private citizen, and reporting them as if they were official judicial pronouncements:

Kazen was skeptical about the Democrats' legal argument, but he repeatedly said he sympathized with their political argument. He said it's bad public policy to redraw congressional boundaries this year, and he said it's not a priority for the state of Texas.

It's not part of a federal judge's job description to take sides as between two political parties, nor to substitute his own judgment for that of elected legislators on matters of state public policy.  But that's what the liberal press wants federal judges to do in this case, and like Sen. Van de Putte, their perception of events can obviously sometimes be skewed by that desire.

I should have known better, frankly, than to think that Judge Kazen would "wander off the farm."  At the most he can be gently faulted for musing aloud as a private citizen while he was on the bench, in the presence of reporters from the popular press, and "on the record."  For anyone who understands the process, his doing so was trivial, definitely a case of "no-harm, no-foul" with respect to the merits of anyone's claims or defenses in the lawsuit. 

I doubt that any of the lawyers present were as deluded as the reporters apparently were.  But I frankly, naively, expected better from experienced political reporters from a couple of the state's largest and most respected newspapers.  I dunno why, but I did.

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{1}"Transcript of Hearing Before the Honorable George P. Kazen, United States District Judge," dated August 27, 2003, reported by Leticia E. Verdin, Certified Shorthand Reporter, and filed on August 29, 2003, under Docket Entry No. 23 in Gonzalo Barrientos et al. v. The State of Texas et al., No. L-03-CV-113 in the United States District Court of the Southern District of Texas, Laredo Division, at page 12, lines 7-20.  The full transcript, in a .pdf file that's 2.6MB in size, can be downloaded via Pacer for about $7 if you have a Pacer account set up.

{2}Transcript at page 26, line 15, to page 27, line 19; emphasis added by BeldarBlog.

Sexist, anti-democratic MoveOn.org nears $1 million goal for "Defend Democracy in Texas" ad campaign

The trademarked graphic for MoveOn.org is subtitled "Democracy in Action."

As its "Current Campaign," MoveOn.org now has its "Defend Democracy in Texas" program — to raise $1 million for an ad campaign to support the Truant Texas Dems™ — at the very top of its website's homepage.  This in turn links to a page with the familiar text entry fields for your MasterCard or Visa number — along with a bar graph which reveals that MoveOn's "progress thus far" toward their $1 million goal is "98.77 percent funded" as of the moment I'm posting this.

Besides being overtly sexist, however, their website demonstrates that the folks at MoveOn.org — if they really want to have anything to do with "Democracy in Action" — ought to spend some of that $1 million to buy a clue as to what constitutes small-d "democracy"!

Here's the homepage teaser designed to take you back to the page with the field for your credit card info:

Impeachment. The 2000 Election. The California Recall. The pattern is becoming clear:   there's a group of men in power who will do anything to consolidate that power, including undermining our democratic institutions. We've got to fight back. In Texas, they are fighting back. And while the world is focusing on the California mess, they are fighting alone. They need our help.

A partisan plan pushed by Karl Rove and Tom Delay [sic] will redistrict up to 7 Democrats out of Congress. Right now, 11 Democratic State Senators are hiding across state lines — with the Texas Governor calling for their arrest — to prevent this illegitimate plan from being strong-armed into law. They have put their reputations and careers on the line for all of us. Please help us launch a hard-hitting ad campaign to fight back in Texas.

(Emphasis added.)   It's not quite as dramatic as watching the numbers climb on a Jerry Lewis Telethon, but there probably will be some folks in Albuquerque punching their browser "reload" buttons on the page with the bar graph all weekend.  Sen. Gonzalo Barrientos and Sen. Eliot Shapleigh only raised $4200 at a fundraiser in Colorado on Thursday.  A Reuters report in the Houston Chronicle quotes MoveOn.org's "organizing director," Zack Exley, as saying that the "Defend Democracy in Texas" program is "the single biggest fund-raising campaign we have done on a single issue."  (Hat-tip to Votelaw for the link.)

Maybe if they get to $1 million, MoveOn.org can afford to fix the sentence fragment at the end of their bullet point list in the "letter" from Sen. Rodney Ellis that I Fisked on August 22nd.

But rather more seriously, does it strike anyone else as Orwellian when a campaign designed to thwart a majority-rule legislative vote is described as a campaign to "defend democracy"?  Or when the holding of a majority-rule legislative vote is described as "strong-arm[ing]" a plan into law?  Or that simply trying to achieve a Senate quorum — specifically for the purpose of discharging the responsibility for Congressional redistricting that the United States Constitution assigns to the democratically elected state legislative and executive branches, rather than to a panel of unelected federal judges — is described as "undermining our democratic institutions"?

As for the "group of men who will do anything to consolidate that power":   Does it occur to the folks at MoveOn that there were a few women among the millions of Texas voters who in the 2002 elections gave the Republicans their first majorities in both chambers of the Texas Legislature since Reconstruction and denied the Democrats every one of Texas' 29 state-wide offices? 

And doesn't MoveOn.org owe an apology to Republican Texas Senators Jane Nelson and Florence Shapiro for implying that the votes they would cast on behalf of their constituents — votes favoring redistricting — somehow don't count? 

Senator Nelson happens to represent my older brother, a white male Republican orthodontist, a conservative born-again Christian who plays tennis pretty well.  He and my sister-in-law Shelli have raised three beautiful kids in the affluent suburbs mid-way between Dallas and Fort Worth, one of those places where Texas' population has just boomed since the 1990 census.  I know he's anathema to MoveOn.org, and it to him, but — well, he does pay his taxes, quite a bit more than I do, in fact, and even though we disagree sometimes, he and Shelli do agree with me and Sen. Nelson on the need for redistricting.  He'd like to see a little bit of small-d democracy on his behalf, notwithstanding all those disabilities.  Is it really unfair for him to expect that the State Senator who he helped elect will at least get a chance to cast a vote on this issue?

While they're at it, shouldn't MoveOn also apologize to the nineteen women serving as Republican State Reps — Betty Brown, Carter Casteel, Myra Crownover, Diane Delisi, Mary Denny, Peggy Hamric, Linda Harper-Brown, Suzanne Hupp, Elizabeth Jones, Lois Kolkhorst, Jodie Laubenberg, Geannie Morrison, Anna Mowery, Elvira Rayna, Debbie Riddle, Vicki Truitt, Arlene Wohlgemuth, Martha Wong, and Beverly Wooley?  Those are women whose votes for redistricting have also been thwarted by the House and Senate Democrats who've fled from Texas this summer for the sole purpose of protecting gerrymandered districts that are rigged to keep in office several white male incumbent Democratic Congressmen.

I was one of the 53.1 percent of the voters — 24,524 people in State Representative District 134 — who elected former Houston City Councilwoman Martha Wong as a rookie to the Texas House in 2002.  She voted for redistricting.  Are she and her entire constituency part of the "group of men who will do anything to consolidate [their] power"? 

Or does Martha Wong — and do I and 24,523 other voters in District 134 — just not count at all when MoveOn.org defines small-d "democracy"?  Is this the "disenfranchisement of minorities" about which the Truant Texas Dems™ are prattling on?

Meanwhile, in the US House of Representatives, I'm represented by a white male Democrat, Rep. Chris Bell.  Rookie Bell succeeded Ken Bentsen, another Democrat, with 55 percent of the vote in 2002, and he's one of the white male incumbent Democrats whose seat was protected by the 2001 Balderas panel of judges, but now may be at risk in redistricting.  I guess he's one of Leticia's children, too, but all things considered, I'd be glad to see him lose his gerrymandered-to-stay-Democratic district.

I've said before, and I repeat, that this is indeed a fight about democracy.  It's just that MoveOn.org and the Truant Texas Dems™ are on the side against democracy.

Beldar will likely vote 'Yes' on Prop 12, but for an odd reason

The Curmudgeonly Clerk has a very thorough and extremely useful post up that contains a huge amount of factual information, both pro and con — plus all the links you could ever want — regarding Proposition 12.  This is the proposed amendment to the Texas Constitution that would

allow the legislature to statutorily cap non-economic damages (i.e., non-compensatory damages) in civil suits. Proponents of the measure argue that out-of-control medical malpractice costs that drive away doctors require the measure's passage. The amendment's detractors accurately note that the proposal would give the state legislature a free hand to limit damages in all civil matters, not just healthcare-related suits.

I'm leaning toward voting 'yes' on Prop 12 — which may be somewhat self-destructive, since the firm to which I'm "of counsel" more frequently represents personal injury plaintiffs than personal injury defendants (or their insurers).  My reason for probably voting that way is also odd — a really wonky one that I haven't seen either side argue.

The anti-Prop 12 pitch

Welcome to another episode {note1} of "I knew them when ...":   For a short time in the early 1990s, I was a shareholder — essentially what's generally thought of and referred to as a "partner" — in the Houston office of Dallas-based Thompson & Knight, and one of my counterparts in the firm's Trial Department in Dallas was Deborah Hankinson, who thereafter served as one of the Associate Justices of the Dallas Court of Appeals and then the Texas Supreme Court.  She's now back in private practice, but her reputation as a pro-business, conservative Republican judge caused several folks to sit up and take notice when she became one of the highly visible leaders of the campaign to defeat Prop 12. 

Judge Hankinson has authored a sort of letter-brief/editorial arguing against Prop 12, and it reads very much like the Texas Supreme Court's opinion from Lucas v. United States, 757 S.W.2d 687 (Tex. 1988), in which then-Justice William Kilgarlin led the charge to declare unconstitutional a tort-reform "cap" on damages that the Texas Legislature had passed in 1977.  Nobody else could rouse the rabble with a good piece of populist demagoguery quite the way that Bill Kilgarlin could!

Prop 12 would basically amend the Texas Constitution to overrule Lucas, and Judge Hankinson thinks that would be a bad thing because it would upset the "separation of powers" balance by putting too much power into the hands of the Legislature, ostensibly at the expense of Texas courts and juries.

But Beldar thinks ...

With all due respect to Judge Hankinson and other opponents of Prop 12, however, I just think that's a completely bogus argument.  I thought so when Lucas was announced and I still think so now.  Nobody's being denied "access to the courts" — that's just a load of crap, a complete red herring argument, although it surely sounds good.  This sort of state-level substantive due process — reading substantive rights into provisions of the Texas Constitution that seem fair, as deemed by judges, never mind that they're nowhere written down — is as fundamentally unprincipled at the state level as it is at the federal level. 

Basically, for reasons you can read about in any high school civics book, I think that the legislative branch of government ought to be free to adjust our whole civil-law structure pretty much unimpeded by constitutional handcuffs.  For the exact same reasons that it's a good thing for the Legislature to be able to create statutory claims that didn't exist "at common law" — including such things as survivorship actions or consumer protection cases under the Texas Deceptive Trade Practices-Consumer Protection Act ("DTPA") — it's a good thing for the Legislature to be able to dial back on claims that first arose "at common law," including personal injury claims of all sorts.

Who do you want to trust to tweak these knobs?

I frankly don't know whether the specific caps contained in the Legislature's latest efforts at tort reform will or won't solve the "insurance rate and availability crisis" that's being bandied about as the chief reason for passing Prop 12.  I suspect the Legislature doesn't really know that either. 

But the Legislature is the right branch of government to make that decision in the first instance — to experiment and tinker and tweak the system.  If they screw it up worse, they can fix it.  That's why the DTPA's been amended so many times since it was originally passed in 1979, for instance — it's on the whole a far better piece of legislation after some unintended imbalances were fixed, and it still has ample teeth to serve its original purposes even though most of the amendments have been cutting back on its original strength.

For me, then, it comes down to a representative small-d democracy issue.  Those state senators and state reps  may in fact all be clowns, but they're our clowns.  Discipline for Legislators should come at the ballot box, rather than through clumsy constitutional handcuffs.  As a public policy matter, we're better off giving the Legislature broad authority, and then holding the Legislators accountable at the polls.  This beats either having the Supreme Court managing public policy through the meat-axe of declaring legislation unconstitutional, or having the public at large micro-manage things like tort reform in the guise of constitutional amendments.

Now, I know my position runs contrary to a long-standing and well-justified suspicion in Texas that the Legislature is an extremely dangerous thing.  Here's the oldest joke in Texas politics: 

"Say, do you know the most significant typographical error in Texas history?  Why, it was the accidental reversal of some numerals in the Texas Constitution — the Legislature is really only supposed to meet every 140 years for 2 days, and not the other way around!"

But in short, while Prop 12 is about separation of powers, it's an appropriate restoration of legislative prerogatives that simply undoes the power-grab by the then-populist Texas Supreme Court in Lucas.  Populism may have its place, but better that it be in the executive and legislative than the judicial chambers of state government.

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{note1}The next installment of this game is likely going to be a variation and elaboration on "I did blue-book cite-checks for Houston mayoral candidate Bill White back when I was a staffer and he was the editor-in-chief of the Texas Law Review."  He's a public figure now, so I guess I'm immune from whatever defamation claims he might bring against me unless he can prove both falsity and "actual malice."  Mwah-hah-hah!  That leaves lots and lots of room!

The alternative title of this game, of course, is "Famous people I've known along the way whose careers have far surpassed my own," but it's less fun to play when I call it that.

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UPDATE (Sat Sep 6 @ waytoolateatnight):    Walter Olson at Overlawyered has graciously linked to (and complimented) this post, but he has also gathered many other links to posts that discuss Prop 12, pro and con.  If you didn't get here via his post, you may well want to check out some of the other links he's collected!

Debridement

There are those who are cautioning against too much drama and realism in our remembrances as we approach the second anniversary of 9/11.  "Don't rip open the scabs," they say, "We need them to heal!"

They don't understand.  America is not yet in the process of genuine healing from the wounds of 9/11.

We're still undergoing debridement.

From the Merriam-Webster's Online Dictionary:

Main Entry: de·bride·ment
Pronunciation: di-'brEd-m&nt, dA-, -"mänt, dA-brEd-'män
Function: noun
Etymology: French débridement, from débrider to remove adhesions, literally, to unbridle, from Middle French desbrider, from des- de- + bride bridle, from Middle High German brIdel -- more at BRIDLE
Date: circa 1842
: the surgical removal of lacerated, devitalized, or contaminated tissue
- de·bride /di-'brEd, dA-/ transitive verb

Among the most severe pain known to humans is that experienced by third-degree burn victims as they undergo debridement of their blackened, burnt, stinking, crusted, oozing, infection-prone, necrotic skin. 

By definition, their burns have penetrated too deeply into the layers of the skin for the normal scabbing-over and healing processes to work.  Literally cutting away and stripping off the dead skin is the only route to recovery.  So before healthy, functional, ugly scar tissue can form, the rawest of flesh must be completely exposed and scrubbed clean.  Every nerve ending protests its agony; if no precautions are taken, patients have been known to bite through their tongues before passing out, even when heavily anesthetized and sedated.

Don't kid yourselves, folks:    Metaphorically, that's us.  We didn't get a national case of light sunburn.  We had the emotional equivalent of napalm sprayed on us, and the burns were third-degree.  Before we can heal, before those wounds can scar over, we have to finish our debridement.  There's no avoiding it, and ignoring or postponing it only makes it worse.

9/11 was a worse shock than Pearl Harbor.  It killed more Americans than D-Day, and in a fraction of the time.  We still take mournful note of those events each December 7th and June 6th, even those of us who were born well after World War II was over, even more than 50 years after those events.

Within 5 minutes after I watched the second jet hit the second tower, I was on the phone to my ex-wife to make arrangements to pick up our kids from school.  "This is going to be like when JFK was shot," I said.  She and I were first-graders when that happened, just old enough to be among Americans who remember that as a dividing event in our national history — a "where were you when you heard?" moment, a "nothing will ever be the same" moment.

It simply stuns and appalls me that so many have forgotten so much so quickly.  It seems at times that in the minds of most of our French and German and Belgian allies, for instance, 9/11 has already receded to about the same intellectual and emotional status as a really good Hollywood action movie, remembered two years later.  "Oh, yes!  What a show that was, I remember I felt like I was almost a part of it at the time!  Great cinema!  Such special effects!"

And the number of genuinely good Americans who've put back on their blinders — who've willed themselves to forget, and to think we're healed and that all is as it was — is tragic.

Forgetting ...   Is ...   Not ...   ACCEPTABLE!

Once a year, each anniversary — every 9/11 — we desperately need to remember as vividly as possible what happened:   How we felt; how stupidly innocent and trusting we were before; how devastated we were after.    How everything changed, and why — now — we finally "get it." 

Yes, of course it will hurt.  When you're doing debridement, it all hurts — except for the dead part.  Those of us who are still here to feel the hurt owe it to those who aren't — both to those who were killed on that day, and to those who've been killed since then as part of the long and far-from-complete war to avenge 9/11/01 and to prevent any more 9/11s.

And it's the job of the media, all media, to help us remember.

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(Hat-tip to an excellent post by susanna of the cut on the bias blog, which was the proximate inspiration I had for writing this post, although I've been thinking these thoughts for some time and will likely have more to say on the subject between now and 9/11/03.)

UPDATE (Sat Aug 30):  michele of a small victory has similar sentiments in a fine post entitled No Ordinary Day, chock-a-block with links and followed by some excellent comments.  (Hat-tip to boswell of American Digest for the link.)

Clueless in D.C.

Although the Texas press and the blogosphere are paying attention, the national conventional news outlets seem to be slipping into a stupor when it comes to Texas redistricting.

From the transcript of "Washington Week Online" printed in today's WaPo and listed as "Thursday, August 28, 2003; 2:00 PM":

San Francisco, Calif.: Please talk about the Texas redistricting and the threatened arrest of the fleeing Democrats. Why is this not getting the attention that the California recall debacle is receiving?

[Moderator, Managing Editor & PBS Anchor] Gwen Ifill: Eleven Senate Democrats are still holed up in Albuquerque, New Mexico, and the legislature has adjourned. So nothing new is actually happening in the Texas redistricting case. Meanwhile, in California, the country's most populous state, the voters are poised to throw the recently reelected governor out on his ear, possibly replacing him with a movie actor. You tell me which one of those stories sound more like news to you.

(Emphasis & bracketed portions added by BeldarBlog.)  Good catch, Gwen!  You've managed to completely miss yesterday's federal court hearing and ruling — the direct results of which may end up causing a several-vote swing in the composition of the 2004 US House of Representatives. 

I could find no mention of the hearing, in fact, anywhere in today's WaPo, or on the PBS/Newshour website, or even in today's edition of the nation's "newspaper of record," the NYT.  For that matter, I haven't seen the hearing mentioned on any major national blogs, left or right — which is grassy-knoll odd!

AP affiliates all over the world, however, do have a typically mangled version of the story (continuing to refer to Lt. Gov. Dewhurst as "dropping a rule that requires two-thirds of senators to agree to consider a bill," for instance).

Beldar's free, fair & balanced legal advice to Fox is vindicated!

Positive correlation?  Yes!  Causal connection?  Well ... almost certainly not. 

(Although in skimming logs to see where my blog's referrals are coming from, I've been absolutely stunned at the large number of Google searches that have led folks here based on the phrases "Dori Ann Hanswirth" and/or "Hogan & Hartson."  Maybe if I use "Dori Ann Hanswirth NAKED" as a keyword ....)

But after ignoring my first post with advice on its lawsuit against Al Franken and his publisher, Fox News has followed my advice in my second post.  WaPo reported today that "Fox dropped the suit Monday after a federal judge rejected its request for an injunction." 

The story also contains this jaw-dropper about Franken's book:

"Lies" contains lots of citations and statistics because Franken, during a fellowship this year at Harvard's Shorenstein press center, was given 14 research assistants to help him scour the media archives.

The panel picked, Beldar makes a plea and a prediction

The Fort Worth Star-Telegram (oddly enough picked up by out-of-state papers via Knight Ridder Newspapers before it's on the S-T's own website!) reports that the three-judge panel to hear the lawsuit brought by the Truant Texas Dems™ will consist of —

• US District Judge George P. Kazen of Laredo, a Carter appointee who's the Chief Judge (based on seniority) of the Southern District of Texas;

• US District Judge Lee H. Rosenthal of Houston, a GHW Bush appointee; and

• US Circuit Judge Patrick E. Higginbotham of Dallas, a Ford appointee to the district court who was promoted by Reagan to the Fifth Circuit.

Judge Higginbotham was also on the Balderas v. Texas three-judge panel in 2001 which created "Plan 1151C," the Congressional district map that was used in the 2002 election and remains in effect today.  The panel was selected by Fifth Circuit Chief Judge Carolyn Dineen King of Houston, a Carter appointee.

The US Court of Appeals for the Fifth Circuit is headquartered in New Orleans, and press accounts often misleadingly make it sound as though all of its work takes place there; but its judges live in various cities scattered throughout Texas, Louisiana, and Mississippi, and in fact often hear oral argument on appeals in cities other than New Orleans.  This special three-judge panel could choose to meet in Laredo, but it wouldn't surprise me if for the convenience of all concerned, it decided to convene instead in Houston.

The case is styled Gonzolo Barrientos et al. v. the State of Texas et al., No. L:03CV113 in the United States District Court for the Southern District of Texas, Laredo Division.  The biographies for Judges King, Higginbotham, Rosenthal, and Kazen that I've linked are courtesy of the Federal Judicial Center website.

A nonpartisan panel of professionals

I don't know Judge Higginbotham or Judge Kazen personally.  But I had the privilege of working as a law clerk for Judge King during her second year on the bench in 1980-1981.  And from 1981-1987, before her appointment to the bench, Lee Rosenthal and I were colleagues at Baker & Botts.  My respect and admiration for both of them is boundless; they are among the smartest, hardest working, and most ethical lawyers I've ever met.  I'd willingly play high-stakes draw poker with either of them over the telephone, with either of them dealing.

People will assume that these judges' personal politics match that of the Presidents who appointed them.  That may be the case, but it's not necessarily so — and more fundamentally, it's beside the point.  With respect to Judge King and Judge Rosenthal, I've seen them work, and I know their fundamental character.  I can say with 100 percent certainty that to the extent a human being can possibly compel herself to be strictly nonpartisan, each of them does so.  I'm reasonably confident that the same is true of Judge Higginbotham and Kazen.  These are professionals in the very best sense of that word, and the three judges on the panel will be keenly aware at all times of the highly circumscribed boundaries of their proper roles as this political drama plays out. 

In fact, if you were to suggest to me in person over a beer that, for instance, Judge King would ever stack the panel to make sure that Democrats fare better in this fight, I'd probably punch you in the nose before I could help myself — and ditto if you were to make the same sort of comment about Judge Rosenthal and the Republicans.

In theory this three-judge court can take evidence from fact and expert witnesses in a full-blown non-jury trial; it can make credibility evaluations, decide who's lying and who's telling the truth, accept or reject the opinions of the experts.  But frankly, in contrast to, say, the redistricting panel in Balderas — which actually had to create a map, which is a hugely fact-dependent and fact-intensive project! — the underlying facts (as opposed to the spin put on them) are probably going to be essentially undisputed for this case.  I'll be very surprised if the panel agrees to hear much, if any, live testimony. 

Dems face longshot odds

We already have what amounts more or less to an advisory opinion, albeit a preliminary one, from Judge Kazen that's only slightly less lopsided than the ruling on Fox News' request for an injunction against Al Franken.  The Austin American-Statesman quoted a remark from Judge Kazen that pretty well cuts to the heart of matters:

"The fact is, in a legislative body, you win some and you lose some. I know the senators represent people, but if they're in the minority, they're going to lose votes," he said. "That's how the country works. The majority wins."

My personal politics are obviously hostile to the Dems, but strictly on the undisputed facts and the applicable law, I also sincerely believe that there is no merit to the lawsuit brought by the Truant Texas Dems™. 

I'm not saying it's a foregone conclusion.  I don't expect an opinion that says, "There are hard cases and there are easy cases, and this is an easy case."  But notwithstanding the depth of political feeling on each side, based on a nonpartisan application of the law, this just isn't a very hard case to decide.  If I were a betting man with unlimited capital, I'd gladly give five to one odds against the Dems, or maybe better, to any and all takers.

If the Dems lose, they have a direct appeal to the US Supreme Court "as a matter of right" — meaning that unlike the overwhelming majority of other cases, the US Supreme Court more or less has to consider that appeal on its merits (and can't just "deny certiorari" to refuse to hear the appeal).  But all that's likely to produce is the notation "aff'd mem." — meaning "affirmed by memorandum," effectively adopting the three-judge panel's opinion without further discussion.  In my judgment, the odds of the US Supreme Court reversing this panel if it denies relief to the Dems are infinitesimally small.

The Republicans must be smelling victory, million-dollar ad campaign from MoveOn.org notwithstanding.  They have the high cards, frankly, and we're not far from the point where all the cards are going to be in-play, face-up, and on the table — meaning someone's going to rake in all the chips. 

Wanted:  Transcendent statesmanship

And so, paradoxically, this may be the best possible opportunity for a deal to be cut.  Winning in a bloodbath that leaves bitter enemies sucks, and martyrdom sucks even worse.  My personal hope is that someone from each side will undertake the role of statesman rather than politician.  I'd suggest that the structure ought to be an agreed map that is predicted to result in modest Republican gains, based on 2002 voting patterns — one that is likely to result in a change of three seats.  (Easier said than done, I know, if you're one of the gored white male Democratic incumbents — but guys, it's time for about three of you to "take one for the team"; cash in to become a lobbyist or a retired rancher or a professor at the LBJ School or something like that!)  Scratch the fines and penalties.  Hold a huge "welcome home" barbecue on the Capitol grounds, invite both the Aggie and Longhorn Bands to play, set up a vegetarian booth off to one side, and sell really cold beer for a nickel a cup.

But the most important part of a compromise should be this:     Announce a genuine, good-faith, bipartisan commitment to pass a reform bill in the next regular session that ends gerrymandering for good.  Become the first large state in the United States to do so.  End the circus, lead the way, and bask in the resultant respect that both parties could earn through transcending partisan politics.

Do I think this will happen?  Hell, no.  I think several of the Dems are too far out on a limb to back down, and there are too many Tom DeLay-haters egging them on into political suicide.  I predict the bloodbath end-game, frankly. 

And I'm likely to end up punching someone in the nose for insulting one of these judges, I guess, when they do their duty under the law and pour the Truant Texas Dems™ out of court.

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UPDATE (Fri Aug 29):   Charles Kuffner's left-of-center blog, Off the Kuff, gets some background facts about the new panel a bit garbled, but reports that "[o]n a side note, a good friend of mine spent a year clerking for Higginbotham and had nothing but praise for the man. Take that for what it's worth." 

Votelaw also has a couple of recent posts up about the current status of the fight (here and here).

Judge Kazen drops back 3 steps, stops to fuss, then punts Truant Texas Dems™ to 3-judge panel

I credit R.G. Ratliffe of the Houston Chronicle for the best reporting of the day on today's federal court proceedings in Laredo:

A federal judge told lawyers for runaway Democratic senators today that he believes their lawsuit seeking voting rights and free speech protections is all but totally frivolous, but he agreed to leave the final decision to a three-judge panel.

U.S. District Judge George P. Kazen said he believes Gov. Rick Perry and Lt. Gov. David Dewhurst's push for mid-decade congressional redistricting is wrong and a waste of taxpayer money. However, Kazen also criticized the Democratic senators for fleeing to Albuquerque, N.M., to break the Senate's quorum.

Judge Kazen's comments on the lack of merits of the legal claims made by the Truant Texas Dems™ aren't going to be binding on the three-judge panel.  Those comments should, however, have served as a reality check for the Dems — but they apparently didn't:      Senator Van de Putte was quoted from Albuquerque as saying:  “The judge says our case has merit, that's good for us!" 

Maybe she really does think Charlie Stenholm is one of her children, I dunno.

The Austin American-Statesman suggests that Sen. West took a breath from his misplaced rant against John Ashcroft long enough to voice a slightly more realistic assessment:     "Even if he said it was a 'shred of merit,' " said Sen. Royce West, D-Dallas, "it got us to the next phase."

From the combined press reports of his comments, it looks as if Judge Kazen wandered a bit off the farm in his public policy critiques.  [ed: I discovered later when I read the actual transcript that these press reports were wrong; see the quotes in my apology to Judge Kazen for this remark.] But I'm not too torqued about that since that stuff was all dicta — not precedent, not binding on anyone, and not actually any of his business as a federal judge. 

Other than that, however, I'd have done the same thing were I in his shoes.  In short, the judge made a decision that (1) made everyone sorta happy, (2) advanced the ball because it guarantees expedited resolution of this dispute at both a trial and appellate level, (3) gave him a chance to fuss at both sides (to try to encourage a compromise), and (4) CAN'T be reversed — very important from the standpoint of any trial court judge!

Houston's Charles Kuffner of Off the Kuff has a good set of quotes and links from other press coverage on today's hearing (it's also reprinted on Political State Report).   Byron L at Austin's Burnt Orange Report is also gearing up to follow this fight.

Houston Chronicle improves press coverage on background facts

I was very gratified to see that later in his article, Ratliffe of the Houston Chronicle finally got his basic background facts right about the "rule change" argument (although most of the other Texas newspapers and the AP continue to bungle this, as do most bloggers):

The 11 Democratic senators took off for Albuquerque on July 28 as the first special session ended and they learned Perry planned to call a second session immediately. Dewhurst already had announced plans to change Senate procedures so the Democrats could not block congressional redistricting in the second session.

The change in procedure amounted to dropping what has become known as the "two-thirds rule." So long as the procedure was in place, the 11 Democrats could block redistricting without having to break the Senate's quorum.

Under standard Senate procedure, a supermajority of the Senate's 31 members must give permission for a bill to be debated. The vote is required to take legislation out of its regular order on the calendar.

But Dewhurst announced that congressional redistricting would be the only thing on the calendar so a simple majority could pass it.

Would that the Texas press and the national wire services could have been this clear during the last month!

But still ...

I still have to quibble a bit.  Senate Rule 5.13 is still in place — it's not being "dropped."  It's just that by its terms it only ever comes into play when there's a proposal to take up a bill that's not at the top of the calendar, and that's not going to happen with redistricting in the third special session, nor would it have in the second (if the Senate had ever gotten a quorum). 

Am I being entirely too anal about this?  I really don't think so.  The public has an extremely strong sense of fair-play that ties directly into their perception as to whether "rules" are being "abandoned" or "changed" or "dropped."  Such public legitimacy as Dubya was able to scrape together out of Florida in 2000, for instance, was directly based on roughly half the country's perception that the Gore forces were "changing the rules" on the recount until they found some combination of chad-conditions and counties that would produce a different result. 

Frankly, Lt. Gov. Dewhurst and the Republican media consultants have done a crappy job of educating the press and the public on this — they've let the Dems mis-define the issue as being a "rules change" until just this week, when they finally began to snap to the importance of the verbal formulation when forced to do so by this lawsuit.