BeldarBlog

'Horns 25, Buckeyes 22

With due and genuine respect to my blogospheric friend Hugh Hewitt — who's as loyal a Buckeye football fan as Ohio State University could ever want — and to the Buckeye players and staff, who played hard and well and again showed themselves to be an extremely classy institution ...

But how 'bout them Longhorns?!?

Wow, that was a fun football game to watch! And for an early season game, even between the No. 2- and 4-ranked teams, it was exceptionally well played overall by both teams. My quick post-game thoughts and TiVo-assisted armchair quarterbacking:

 

1. Texas' overall talent may make the 'Horns a genuine challenger for the national title, but the 'Horns special teams have got to improve, dramatically and fast. That there were no missed extra points tonight was the minimum acceptable improvement from last week — one that could have been outcome-determinative in a close game like this one. It looks like David Pino has earned another start as the PAT and FG placekicker. But Ohio State enjoyed superb field position almost all night long, mostly due to kickoff and punt runbacks.

2. Bless his heart, but it's time to drop Selvin Young off the first team. His durability is still suspect, and he's in a butter-fingered slump; and it may be a moot point if Young's injuries would sideline him anyway. But regardless, Jamaal Charles ought to be the starting running back next game.

3. Texas' bend-but-rarely-break defense won this game. Ohio State will make lots of big plays this year against less talented, less quick defenses.  As brilliant as Vince Young often was, though, the defense's holding the Buckeyes to a school-record number of field goals, especially after Longhorn offensive miscues, was the difference tonight. And nobody realized it at the time, but the key play of the game turned out to be the deflected second-down pass with 5:45 left in the 4th quarter — completed, but for a four-yard loss from the Texas 29 to the Texas 33-yardline. It ended up being just enough to throw off-target, barely wide-right, OSU's final (and would-have-been clinching) long field goal attempt two plays later.

4. The record Ohio State crowd — 105,565 — was impressive even by Texas standards, and the Buckeye fans deserve plaudits along with their team.

5. But bigger plaudits to the Showband of the Southwest, the University of Texas Longhorn Band. There's of course no way in the world to overcome the kind of (legitimate) homefield advantage that Ohio State had tonight. But former Longhorn head coach Darryl K. Royal got it exactly right back in (if I recall correctly) about 1968, after a road loss before frenzied fans at Texas Tech, when he said that in a hostile stadium like that one, the Longhorn Band is worth seven points. That was one of the last times the team traveled to a big game without the Band, but I was sure glad the Band was in Columbus tonight — especially early in the second half. (My theory is that the LHB is most important just after a huge Longhorns screwup that would otherwise, in the face of the energy surge from a huge, hostile crowd, be overwhelmingly demoralizing. The sound of "Texas Fight" and those LHB drum cadences remind you of who you are, of where you're from, and of the days you've seen and will see again, back at DKR-Memorial Stadium, where the huge crowd is adoring.)

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UPDATE (Sun Sep 11 @ 9:15am): John Bridges on one of the Austin American-Statesman's blogs reports  that

[a]fter all the brutality on the field tonight, the Ohio State band capped it all off with a classy move.

The stands were empty of Buckeye fans — only the celebrating Horn folks remained — when the Buckeye band launched into a version of "Texas Fight."

Nice way to honor the team that handed Ohio State its first home nonconference loss in 15 years and its first home night-game loss ever.

I agree, and I'm not surprised. OSU's band has always had a great national reputation among folks who follow such things; when I was in the Longhorn Band back from 1975-1980, we considered the Buckeye band to be among our national peers. My guess is that this was a more likely intended as a gesture of mutual respect and friendship to the Longhorn Band in particular as than as a tribute specifically to the Longhorn football team. But however it was intended, it was indeed classy. And unlike the spontaneous Rice band, the MOB, who might be bold enough to improvise a public performance without sheet music distributed in advance, it's very unlikely that the OSU band would undertake a gesture like this one if it had not been specifically planned and prepared for in advance (and they probably were planning to make it either "win or lose"). I hope OSU brings its band to DKR-Memorial Stadium when they complete the home-and-home series next year.

Remembering the Chief

WaPo's national staff writer who covers the Supreme Court, Charles Lane, has written a touching, poignant report on yesterday's funeral of our late Chief Justice of the United States headlined "Rehnquist Eulogies Look Beyond Bench." It reminds us that our history — in this instance, our national legal history — is made not by gods or titans, but by flesh-and-blood men and women. Thus the same man who proudly and creditably bore the title of "Chief Justice of the United States," and led both our highest single court and entire federal courts system, also proudly and creditably bore, from time to time, titles like "father" and "grandfather"; "mentor" and "neighbor"; "fellow-congregant" and "poker buddy"; and even, once, "busboy" and "fruit-picker." The same man who revitalized federalism, and who presided over the Senate impeachment trial of a President, also apparently made a mean bologna jelly and mayonnaise sandwich.

In the end, his body's fate will be the same as all our bodies' fates. I hesitate to credit John Dean as a reliable source, but his recently much-repeated story about Nixon referring to "that clown" in the Hush Puppies, pink shirt, and clashing psychedelic tie — "Renchburg" or "Rensler," "an excellent man" whom Nixon "knew well" before nominating him to the Supreme Court — reminded me of Hamlet's graveyard musings just before the bit about the skull of poor Yorick, the jester whom he knew:

There's another: why may not that be the skull of a
lawyer? Where be his quiddities now, his quillets,
his cases, his tenures, and his tricks? why does he
suffer this rude knave now to knock him about the
sconce with a dirty shovel, and will not tell him of
his action of battery? Hum! This fellow might be
in's time a great buyer of land, with his statutes,
his recognizances, his fines, his double vouchers,
his recoveries: is this the fine of his fines, and
the recovery of his recoveries, to have his fine
pate full of fine dirt? will his vouchers vouch him
no more of his purchases, and double ones too, than
the length and breadth of a pair of indentures? The
very conveyances of his lands will hardly lie in
this box; and must the inheritor himself have no more, ha?

He was "the Chief," yet but a man. Yet that he was but a man makes his achievements in life, both grand and small, all the more admirable. And while we all must suffer the likelihood that some rude knave may knock our remains about with a dirty shovel and that our fine pates will end up full of fine dirt, we can yet honor his accomplishments during a life well lived, and his memory thereafter. I certainly do.

Katrina

I know something of hurricanes. The day after I moved to Houston in August 1980, Hurricane Allen hit. Three years later, at 6:30pm on the afternoon of an August Thursday at whose midnight Hurricane Alicia's eye passed over downtown Houston, I was among two lawyers, one judge, one bailiff, and twelve very panicked jurors left in the Harris County Civil Courts Building. But despite hurricanes and sometimes-worse (mere) tropical storms, Houston, my home for 25 years, has been lucky lately; our worst over that period has been nowhere near as bad as Katrina, but bad enough that this city, to its enormous credit, has been among the most empathetic and proactively supportive of our neighbors to the east along the Gulf Coast.

New Orleans, to many, is Mardi Gras, the Big Easy, the good times rollin' on. To me, though, since my judicial clerkship, it's always been, first and foremost, the headquarters city of the United States Court of Appeals for the Fifth Circuit. Reputation and party atmosphere aside, I've always been aware that N'walins has its very solid, almost hidden core of people who work hard for a living and get things done. "Getting things done" might mean processing an appeal, or getting a crew boat out to an offshore rig, or delivering a taxi-load from the airport to the Royal Sonesta, or teaching a third-grade science class, or picking out a sweet blues line on a tarnished but well-maintained Bb trumpet — work, art, and joy being mutually exclusive in none of those occupations.

My blogospheric friend Ernie the Attorney is one such, one of many. Breathless cable news coverage can give a sense of their loss, but only poorly hints at their subtle, powerful resiliency. A year, or certainly three years from now, though, that's what the world will think of when it thinks back to Katrina: Not just the loss and death and pain, but the recovery, the rebuilding, and the protracted indestructable courage that will — by God's grace, man's sweat, and one-muddy-bucket at-a-time — turn out to be greater, more magnificent, even than Nature. Ernie, bless his soul, is starting to be heartened. And he's one of tens, maybe probably hundreds, of thousands who will remake New Orleans and Gulf-Coast Louisiana and Mississippi. I'm awed by Nature, but I'm more awed by all my neighbors.

They'll be back. Don't bet against 'em.

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UPDATE (Wed Sep 7 @ 8:47am): This post was written partly as a rebuttal to and protest against articles like this one by Noemie Emery in the online Daily Standard. I'm a reflexive Houston-booster, and agree with most of the nice things she says about this city; and it may be true that on a comparative basis, New Orleans is relatively less meritocratic and dynamic, or more corrupt, than Houston. But that's absolutely the wrong focus to have right now, and it's terribly misleading because it only pays attention to fractional percentages at the margins. Katrina didn't just hit the margins — it hit everyone in New Orleans, although with varying widely impacts. The rain fell on the just and the unjust. The rich and the poor, the black and the white and the brown, the lazy and the industrious, the young and the old, the newcomers and the oldtimers have all been affected. And maybe at the margins some of those groups, some easy stereotypees, have performed or appear differently than their counterparts in other cities might have. But most of the people there — whether they evacuated or not — are just like most of the people here or in Anaheim or Anahuac or Annapolis or Albany. And it wasn't the looters or the whiners or the other cable-TV-news attention grabbers who kept the place going to begin with, or who'll mostly (with some help) put the place back together, or who'll deserve the credit when they do. To those who're drawing sweeping conclusions or issuing broad indictments to the effect that Katrina has shown that N'walins was or is part of the "Third World," my response is: You're a sucker for the most superficial appearances, my friends, and you're insulting and misunderestimating a whole bunch of people who have been hurt, are still hurtin', deserve better from you, and will prove you wrong over time.

Specter again floats the notion that Roe is a "superprecedent"

Back on July 24th, I posted at some length on an NYT op-ed by the Chairman of the Senate Judiciary Committee, Sen. Arlen Specter (R-PA), in which he'd used a term entirely unfamiliar to me — "superprecedents." Others in the blogosphere also weighed in with the results of their own inquiries and research, most of which I believe ended up being linked either in my post and its update or else in its comments. Although the term "superprecedents" was apparently used in a different context and with a clearly different meaning in some law review articles in past years, the closest precedent (so to speak) for the use of the term — at least in the sense that Sen. Specter seemed to be using it — appeared to be a very brief reference in a separate opinion in Richmond Medical Center for Women v. Gilmore, 219 F.3d 376 (4th Cir. 1998), written by Fourth Circuit Judge (and oft-rumored potential SCOTUS nominee) Michael Luttig.

In explaining why he was voting to dissolve a previously issued stay pending appeal in one of the partial birth abortion cases, Judge Luttig speculated that the Supreme Court perhaps "intended its decision in Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), to be a decision of super-stare decisis with respect to a woman's fundamental right to choose whether or not to proceed with a pregnancy." (Boldface mine, not Judge Luttig's.) My reaction, both then and now, was that if Sen. Specter thought Judge Luttig's reference to "super-stare decisis" somehow was announcing a new legal doctrine that would limit the Supreme Court's ability to reconsider and potentially to overrule either Casey or Roe v. Wade, he was asking an awfully slender reed — an almost off-hand reference by a single judge not yet even nominated to serve upon, much less speaking for, the Supreme Court — to bear an enormous weight.

But whatever he actually meant, I was relatively certain that Sen. Specter was very deliberately and calculatedly using the NYT op-ed to lay groundwork for some position he intended to take, or argument he intended to make, during Judge John G. Roberts, Jr.'s Senate confirmation hearings. And an article in tomorrow's WaPo now confirms that much:

There are advantages to being Senate Judiciary Committee chairman, and Arlen Specter used them yesterday [i.e., Tuesday, Sep. 6th] to sit down with the man nominated to be chief justice of the United States and to quiz him about abortion, consensus-building and other topics....

"I talked to him about consensus-building," the senator said. "He said that was something that he thought was important" and will be a priority if he is confirmed.

Specter said he also told Roberts that the 1973 landmark abortion rights case Roe v. Wade has been followed by 38 Supreme Court rulings meant to refine or clarify its guidelines, and he asked, "Is Roe a super-precedent?"

And the nominee's reply? "He didn't say," Specter said. Even a committee chairmanship, it seems, has its limits.

This article will apparently be buried back on page A09 of tomorrow's WaPo print edition, and the reference to Roe as a "superprecedent" is tucked in at its end. But my overwhelmingly strong hunch is that this is more deliberate preparation by Sen. Specter — another step in a comprehensive plan he's methodically attempting to execute. But a plan for what?

Now, it's entirely possible, and indeed quite likely, that before his meeting today with Sen. Specter, Judge Roberts had read Sen. Specter's NYT op-ed from July. If, as many have suggested, he's retained his "managing editor-type personality" from his Harvard Law Review days, I'd not be surprised if Judge Roberts cocked an eyebrow — bemused, perplexed, or otherwise — when he saw Sen. Specter's reference to "superprecedents" then. And there's been speculation in the blogosphere that Judge Roberts is himself a reader of blogs, and my previous post did draw some links and commentary from blogs with wider readership than mine usually has. In any event, Judge Roberts might have seen this informal interview question from Sen. Specter coming. And perhaps Judge Roberts wasn't stumped, but was rather being cagey and playing his cards close to the vest in not giving Sen. Specter an answer yet — or at least not giving him an answer intended by one or both of them for quotation and attribution. Nevertheless, the gun having been brandished in Act I, and now having been discharged into the air (but without appreciable effect) in Act II, I think it's pretty certain that Sen. Specter will shoot it off again in Act III — that is, some time next week in the Judiciary Committee hearings.

I'm quite certain that Judge Roberts is too diplomatic to say then, in public anyway, what I said in my first post — which basically was "Did you just make that up, Arlen? What've you been smokin', Senator?" I'm almost as certain that Judge Roberts will resist any attempt — whether from Sen. Specter on the Republican side of the aisle, or from the Leahy-Kennedy-Schumer-Biden wing on the other side — to get Judge Roberts to pre-commit as to how he'll vote when and if Roe, Casey, or any other particular precedents are reconsidered.

What I can't predict is whether Judge Roberts will "play along" with Sen. Specter and pretend that this particular term, or the vague concept that Sen. Specter seems to have associated with it in his own mind, is something that's actually been recognized in prior caselaw of the United States Supreme Court. I'm not suggesting that Judge Roberts be insulting or rude; but I frankly hope he doesn't go very far in humoring Sen. Specter. Because the straightforward, honest, and indisputable fact is that there's no Supreme Court precedent on "superprecedents." And I would be enormously surprised — stunned, shocked, dumbfounded — if Judge Roberts doesn't already know that to an absolute certainty.

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UPDATE (Wed Sep 7 @ 9:45am): Terry Eastland recently anticipated Sen. Specter's continuing use of the term "superprecedents" in the Weekly Standard; his terrific piece is subscription-only, but an online teaser appears here. [Edit: Full version's now online and free, here.]