BeldarBlog

More on the Rita gridlock and gas shortages

Ken Hoffman's humor column in the Houston Chronicle that I quoted in my last post goes on to make an excellent point about the excesses of local TV news coverage as contributing to the evac gridlock, with which I generally agree:

When this is over, and everybody's home, two things need to be investigated and corrected: Houston's evacuation plans — and television news' role in making us all crazy this past week.

Mr. Hoffman followed up on this point with some humorous examples of broadcast news overkill. I respectfully submit, however, that his own employer also needs to do some of the same soul-searching that he recommends for the broadcast media.

The problem wasn't just the unrelenting breathlessness of the media coverage (print or broadcast), or even mainly that. The problem was with the inaccuracies, omissions, and misjudgments in the reporting.

Just about every Rita-related print story (online or on dead trees) and radio or TV broadcast on Wednesday and Thursday needed to make it absolutely clear that city and county authorities in Houston were not calling for a mass, total evacuation. Yes, the media needed to be talking about evacuation, because people in the mandatory evac zones, and others elsewhere with special vulnerabilities, definitely needed to know that they were being urged to evacuate. But the media also needed to be responsible and accurate in reporting who weren't being urged by officials to evacuate. (That, by the way, is different than saying "urged to stay put" — which would also have been inaccurate, because until the gridlock got awful and the storm got close, authorities weren't urging folks outside the evac zones to stay put either.) In my humble opinion, both print and broadcast media mostly failed that test.

The map graphic showing the mandatory evacuation zones (a slightly edited version of which I posted Thursday evening) needed to be the most prominent image of the Hurricane Rita coverage — instead of being something that you could maybe find if you were a genuine internet dilettante with an Adobe Acrobat-enabled browser and a broadband connection who was willing to drill down through some online links. On a 1-to-10 scale: Importance of that map = 10. Importance of continuous display of TV anchors' fearless faces = zero.

The Katrina experience, plus the media hype and especially its inaccuracies, were the dual proximate causes of the gridlock and the resulting gas shortage. And even in immediate hindsight, it seems fairly obvious that it was only by the grace of God (and, or perhaps through, a high-pressure system that steered Rita to the east) that the gridlock and gas shortages didn't cost the Houston area lots more property damage, injury, and loss of life. We can't control the sequencing of the next few hurricanes, nor am I suggesting that any outside authorities try to control what the media do next time. But if the blogosphere can be a gadfly to nag the mainstream media into being more responsible, that is a worthwhile thing to do.

Teats on a boar hog

My apologies for the rude title. But my nomination for the single best Hurricane Rita quip goes to the Chronicle's Ken Hoffman:

And how come fuel trucks couldn't make it to Houston, but Tom DeLay and Sheila Jackson Lee had no problem getting here? The wrong bags of gas got through.

Preach it, brother! I'd a whole lot rather listen to the second assistant deputy chief fire marshall for Hedwig Village at a Hurricane Rita press conference than to any CongressCritter of either party.

The CongressCritters ought to have to wear placards around their necks — or maybe better yet, those sashes, like beauty pageant contestants wear — labeled with phrases like:

• "Useless Panderer"

• "Only Here for the Graft"

• "Harbors Delusions of Relevance" or

• "Do You KNOW Who I Am? (And why should anyone care right now?)"

Even granting that the feds have a role to play, it's not these feds. This is so not their show. Hie thee back to the Beltway (and I don't mean the Sam Houston Tollway), ye CongressCritters!

(Hat tip to Kevin Whited and his co-bloggers at blogHouston.net, whose skewers runneth over with crackling roasted CongressCritter meat as part of some very fine Rita coverage.)

Just Rita, during Rita

Friday Sep 23 @ 4:05pm: My previous post, about Rita and gridlock, has gotten overlong, so I'm starting this one to record anything semi-profound or -amusing that occurs to me during Rita itself. Maybe nothing will; don't assume if I'm silent that it's because I've lost power. It's conceivable that if I do lose power (which I think more probable than not), I may still be able to update the blog a bit, at least as long as my laptop batteries and a dial-up phone connection last.

Right now, there's naught more troubling than a brisk wind and some cloudy skies outside, and I only heard the first rumblings of distant thunder a few minutes ago. My neighborhood has been very quiet all day; I don't know how many have evac'd or whether they're (like me) just sitting tight indoors.

Friday Sep 23 @ 6:00pm: Not much change outside yet as compared to 4pm. Just spent a few minutes chatting with Hugh Hewitt again on his radio show, and made a point to say some positive things about some of the remarkable, brave, and generous episodes among my fellow citizens that I've heard or read about. It is possible to spot the silver lining even before the storm cloud passes over, if you look for it.

Local TV news weathermen are reporting that the storm track is now tending even further to the east, suggesting landfall further from Galveston, closer to and possibly even on the other side of the TX-LA border. I'm not wishing ill on the folks in Lake Charles and its environs, and I hope they've been making appropriate preparations as well. But landfall further east in turn suggests considerably less danger to the Houston area from winds, although coastal areas will still be at risk for storm surge and everyone's at risk to varying degrees from flooding. One good thing is that the last several weeks have been comparatively dry here, meaning there may be less runoff than there would be otherwise.

Gosh, won't we be lucky if it turns out that looking back someday, the gridlock will be most Houstonians' worst memory of Rita?

Only in the midst of excitement like this would I fail to roast NRO editor Rich Lowry for an eyebrow-raiser like this one today: "I didn't realize Houston is the fourth largest city in the country. Yes, I need to get off the East Coast more." There's got to be a great zinger waiting to be flung back at him for that, but I'm too distracted to think of it today.

Friday Sep 23 @ 6:30pm: Winds are now more than brisk — definitely gusty. Still no rain in my neighborhood, though.

Friday Sep 23 @ 7:30pm: First light rain, winds actually calmer now.

Friday Sep 23 @ 8:45pm: Gusty winds. Sprinkling. Lucky so far.

Friday Sep 23 @ 10:15pm: Riveting journalism, this isn't. Still gusty winds — looks to me like a solid layer of high-level clouds, below which scattered lower-level clouds are racing, well defined by the city's lights. The amount of precipitation is what my baseball coaches used to call "just the birds spittin'" (when they wanted to keep playing, anyway). If it were 100 years ago, before modern weather forecasting and satellites and news broadcasts, I think I'd have had the sense from watching this that there is something big out there somewhere, but that we're still on the margins of it. I wouldn't have mistaken it for an ordinary night, but given how long the wind's been gusting and the clouds racing without much otherwise, at least here, to show for that, I think I'd be wondering whether — and hoping that — we'd dodged a bullet.

If this becomes the most boring post I ever write, that'll be okay.

Friday Sep 23 @ 11:55pm: Continuous low overcast now, and still gusty, but still no rain to speak of. I might actually try to sleep tonight, we'll see.

Saturday Sep 24 @ 1:15am: Sprinkling, continuous strong wind (although nothing to write home about). But I'm still not sleepy.

Saturday Sep 24 @ 2:15am: A bit more rain, and continuing stiff wind. But so far the rain has been light and slow enough to soak in, with almost no run-off. I've lost a few small branches (not limbs) off a few of my trees, and I'm sure there are some limbs down elsewhere in the city with these winds. But so far, so good. A semi-empirical indicator: my satellite TV reception is still strong.

Saturday Sep 24 @ 3:45am: A photo just taken from inside my garage with the garage door up and the camera on a mini-tripod sitting on the trunk lid of my car:

The office tower in the background is at the intersection of U.S. 59-South and Fondren, a few blocks away, which will give you some idea of how light the rain is and how good, considering, overall visibility is. It's still windy, but not too bad; it's still sprinkling, occasionally turning to light rain for a few minutes. But there's essentially no standing water, nor run-off in the street gutters. (The pavement on the far side of the street isn't under water; it's just damp, but the slight angle sloping away from the center crown makes it look slightly darker.) There's not much lightning, and no thunder to speak of. No sirens; not much noise except the wind in the trees. Obviously we still have power, phone, etc. in my neighborhood.

Saturday Sep 24 @ 12:05pm: Statistics and generalizations are meaningless when your viewpoint is from a particular place, time, and situation. Thus, if you had a relative on the nursing home evac bus that caught on fire, then this was a catastrophic hurricane. If a tree crashed into your living room and your roof blew off, then this was a devastating hurricane. If your power is out and you had some windows broken by flying debris, or if you had a nasty gridlock experience in evacuating, then this was a very annoying hurricane.

But at this point, it appears that the net physical effect of the hurricane on my house is a couple of dozen very small branches scattered around my front and back yard. I never lost power, phone, DSL, or satellite TV reception. My dog never got her feet wet. My ex and our kids are similarly unaffected. So we've been very, very fortunate. And my sense is that our experience has been very common, probably even typical, for Houstonians.

Unfortunately that probably can't be said by folks from Jefferson County and far-western Louisiana. But even with respect to them, it would seem that things could have been far, far worse overall.

Mayor Bill White and Harris County Judge Robert Eckels are on TV now urging those who evacuated not to return "unless it's in accordance with the instructions of local officials" so that "emergency supply providers" and others involved in urgent rescue, restoratoin, and reconstruction activities can get back and get their jobs done. They're asking employers not to require non-critical employees to return to work on Monday or Tuesday. Law enforcement is being watchful and there will be no tolerance for looting. No school at least on Monday, maybe longer. [Update: HISD and most nearby school districts have confirmed they'll be closed at least through Tuesday.] No guarantee of gas for those returning yet. Bottom line: Sit tight, count your blessings.
 

Rita and gridlock

A (slightly edited) email I just sent to NRO's Jonah Goldberg, who's presenting "competing views" about the gridlock and gas shortages as folks have been evacuating from the Houston area as Hurricane Rita approaches:

My preliminary impression, In a nutshell: Don't blame Bush, state, or local officials for the evac gridlock. Blame Katrina and the local news media.

Katrina + news media hysteria = lots of folks in non-flood-prone areas of Houston, who otherwise would have hunkered down altogether or at least waited until tomorrow to evac, instead hitting the road yesterday afternoon, last night, and today = avoidable degree of gridlock.

IMHO, local media have done a very bad job of distinguishing between "mandatory evacuation" areas (truly coastal counties, storm-surge areas) and elsewhere. Some of the adjacent coastal county officials are already bitching (publicly and unproductively) at Houston/Harris County officials for "ignoring the plan," which was to get the coastal zones evac'd first. Since so many Houstonians are also on the road ("early," in the view of those adjacent county folks), congestion is much worse for everyone. But I think the "fault" for that, if fault there be, can be laid more at the feet of the breathless media rather than Houston/Harris County officials. And ordinary folks are hyper-receptive to the hype because of Katrina.

If folks have actually LISTENED to what Mayor Bill White has been saying on TV, he's only been twisting arms for the mandatory evac zone folks to leave, plus those otherwise at high risk (e.g., hospital/nursing homes, those in mobile homes, those in houses repeatedly flooded by bayous in past storms). But I'm inferring that Mayor White — a friend of mine from law school, who'd probably like to be Sen. or Gov. White someday if a Democrat can ever get elected again in a state-wide Texas race — doesn't want to DISCOURAGE rank-and-file Houstonians from evacuating either. So neither he nor the Harris County officials have been explicitly calling for high-ground Houstonians to sit tight for now. And thus, when amplified by the media megaphones and imprecision in the media's reporting, Mayor White saying anything at all about evacuation by anyone comes across to most people like "RUN FOR YOUR LIVES!"

TxDoT was slow in getting the interstates set up for contra-flow on the normally in-bound lanes. My guess is that they underestimated how quickly inlanders would start evac'g and how quickly the gridlock would therefore develop. But if that's blameworthy, it's probably only so as a failure to anticipate just how much Katrina and the media hysteria would affect local attitudes. The gas shortage problem is almost entirely a function of the gridlock.

There's essentially nothing on the local media to remind folks that, for example, Houston isn't dependent on vulnerable levees, below sea level, and in between a huge lake and the Mississippi. The man-on-the-street interviews with those planning to stay are always spun to make them look crazy.

How the actual storm will turn out remains to be seen. And Nature may prove me wrong. Maybe by this time next week, everyone will be agreed that there ought to have been a complete, total evacuation covering all of Houston/Harris County.

But so far, IMHO, it's mostly been a perfect [media] storm. Sheesh, does everybody on the TV news want to be the next Dan Rather?

(FWIW, Weiss and I are hunkered down, at home with my emergency supplies and a full tank of gas. I've seen three major hurricanes since I moved to Houston, plus a buncha lesser but still impressive tropical storms, and I *DO* respect Mother Nature. But I'd rather be emailing you from my living room right now than out-of-gas on a gridlocked interstate, and I think I have a rational basis for concluding that I'm also safer here. My ex, who lives nearby and has our four kids with her, independently came to the same conclusion, and I certainly won't leave town while they're still here. So wish us all luck.)

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UPDATE (Thu Sep 22 @ 7:50pm): I'm not exactly on pins and needles — we're still quite a while from landfall, wherever Rita comes ashore, and I've got to save some adrenaline for later! — but I'm fairly focused on family, friends, neighbors, and my own situation at the moment. So when the phone rang a few minutes ago, it took me a good fifteen seconds, and several patient repetitions from the person on the other end of the line, before I snapped to who was calling — Generalissimo Duane (a/k/a Radio Blogger), inviting me to do an impromptu voice appearance on Hugh Hewitt's show! Lotsa fun talking with Hugh, as always — he never asks exactly what I expect him to ask. Hugh was kind enough to have me back after a station break, and I was only a little freaked out when I realized that the "on-hold" music I was hearing during the break was the theme from HBO's "Six Feet Under." Quirky, but not predictive, I hope.

According to the local NBC affiliate's website:

Officials said that residents not in evacuation zones should no longer evacuate.

"Given the conditions of the roads, and the changes in the storm, if you have not left (by 7 p.m. Thursday), the time for leaving your home, if you're not in the A or the B zone, the time for leaving your home has passed," [Harris County Judge Robert] Eckels said.

That's consistent with something Hugh told me he'd heard (or read) that the Mayor had just announced.

I'm well outside the mandatory evacuation zones:

So if you're in the City of Houston/Harris County, unless you're in a special risk category or have other exceptional circumstances, you're probably better off hunkering down at this point.

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UPDATE (Fri Sep 23 @ 1:00am): Here's an example of what I'm talking about, this time with the Houston Chronicle as the offender:

For the most part, the officials didn't offer much analysis of what might have gone wrong. They focused instead on the scramble to keep thousands of motorists from what Mayor Bill White called a potential "death trap" should the storm strike while they were stranded on the road.

That "death trap" quote has been given huge prominence, and I'm absolutely certain Mayor White regrets ever letting it slip through his lips. But it's being way overstressed and ripped wildly out of context. Here's how it's reported by the Dallas Morning News, which is considerably better:

"If the hurricane comes in at a certain angle," said Houston Mayor Bill White, "being on the highway is a death trap."

Later, he expressed confidence that traffic would be cleared in time

But even in this latter example, the media have highlighted one speculative phrase about a worst-case scenario — a phrase that creates sensation and sells papers, I guess, but that is not at all indicative of the main thrust of what Mayor White's been saying.

Yeah, if Rita makes a hard left turn, and its eye rips up the Ship Channel and then does a ballet dance right up Interstate 45 — maybe pausing to make a circuit or two of Loop 610 — and yeah, if people are still stuck on those interstates more than 24 hours from now, at 4:00 a.m. Saturday, which is the current prediction for landfall, then that could be very ugly. But what gets the lede: "Mayor calmly reassures residents that help is en route to stranded motorists, vows no one will be left on the roadways, major freeway evacuation routes now flowing freely"? No, his "death trap" line.

That, in my book, is simply irresponsible journalism. It causes undue panic. And panic can make things worse, even get people killed.

My fellow Houston law-blogger Tom Kirkendall writes:

[M]y sense of what what has made this evacuation so arduous is the large number of people evacuating who do not live in the mandatory evacuation areas. I agree that most folks are much better off battening down the hatches and staying put, but it's hard to criticize folks — particularly those who do not have a safe haven to ride out the storm — for wanting to get the hell out. The number of non-mandatory evacuees surprised governmental officials, so they were a bit slow in getting all freeway lanes going in the same direction to accomodate the evacuees. But given how well those officials have handled preparations for this storm generally, in addition to how well they performed in connection with accomodating the Katrina evacuees, I'm more than willing to cut them some slack for making a few misjudgments.

Yup, ditto that.

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UPDATE (Fri Sep 23 @ 3:35pm): Thanks to those who've linked this post. Among them have been Jesse Taylor at Pandagon and Houston Chronicle Sci Guy Eric Berger. Here's a (slightly edited) reprint of a comment I left in response to Mr. Berger's post:

Eric, thanks for the link and the quote. Those who follow the link will see that I have a more specific observation: That the media (including, unfortunately, the Chronicle) did an inconsistent and often very poor job of transmitting what public officials were saying about evacuation.

My intent when I first posted late yesterday was as much to inform — that's why I included a map graphic showing the evacuation zones, which I've seen much too infrequently on TV or in the Chronicle's online coverage -- as to criticize. And to the extent I was criticizing, or am here, it's with the hope of prompting changes now, in the short term.

The "staged evacuation plan" became almost meaningless when the media was giving the misimpression (my exaggeration, but only a little) that Mayor White and County Judge Eckels were screaming "Everyone flee for your lives!" That's not what they were saying, nor even a close paraphrase; and it's actually contrary to what they were saying (although the public had to read or listen very carefully to figure that out).

It certainly was appropriate for the media to inform people in the mandatory evac zones, or otherwise at special risk, that officials were calling for them to get out. But that should have been combined, in my humble opinion, with a frequent, deliberate repetition of information (a) about where the evac zones actually are, and that (b) officials had not called for a mass, simultaneous evacuation of all of Houston and Harris County.

Journalists, whether print or electronic (for that matter, including even bloggers), can't be "responsible" if they're not being "accurate." And with due respect, the fact that Rita was originally expected to be a Cat 5 storm and to track right over Houston doesn't excuse inaccuracies; that the storm has lessened and changed course just means that the consequences of those inaccuracies might not be so terrible (and let's hope that's the case). I hope we're both in a position to continue this civil debate Sunday!

Eric posted a very civil reply, but within a few more comments he was being taken to task by another commenter for "link[ing] to such a blantantly partisan blog (Beldar), even if it is on a relatively neutral subject. Scrolling down, it seems like a waste to give that breathless blogger the time of day." Likewise, Mr. Taylor perceived my post to be claiming that the Rita gridlock was "the liberal media's fault." My (slightly edited reply) on his blog:

Mr. Taylor, thanks for the link to my post, and this opportunity to leave a reply comment. I am indeed a conservative blogger, and I'm frequently a critic of what I perceive to be liberal political bias in the media. In this case, however, while I have fault to find with the media, it's pretty much unrelated to politics. My reference to Dan Rather was likewise not political (this time), but rather to his early career hurricane coverage that got him network notice.

To the very, very limited extent that politics has anything to do with this, in fact, my post was intended in part to defend Houston's mayor, Bill White — a prominent Democrat elected in a mostly nonpartisan city election whom I know well, and consider a friend, from attending Texas Law School with him in the late 1970s. I think neither he nor (Republican, not that that's significant here) Harris County Judge Robert Eckels are guilty of messing up the "phased evacuation by zone" plan, as they're being accused of having done by some officials from coastal counties whose evacuations were complicated by the gridlock. I think they were reasonably clear in only urging folks in the mandatory evacuation zones to flee. But media exaggeration and misreporting of their remarks, plus understandably heightened fears after Katrina, resulted in a far greater number of folks on the freeways than there needed to be or than anyone ever expected.

(As I write this comment, by the way, Mayor White's holding a televised press conference, and virtually the first words out of his mouth were (my close quote): "Now's not the time to be moving, now's the time to be taking shelter.")

I really, really don't think this is, or ought to be, about politics, nor (contrary to Mr. Taylor's other suggestion in his post) much about race either.

Again with the French Fry Case! (This time Nat Hentoff puts words in Judge Roberts' mouth)

One of Prof. Althouse's commenters provided a link to another article decrying Judge John G. Roberts, Jr.'s opinion in the famous French Fry Case, Hedgepeth — this one by Nat Hentoff in the Village Voice.  Dated September 9th, the article is already badly out of date. (That is, it comes from an ancient time when hard-left Democrats were confident that they could embarrass Judge Roberts and the Bush Administration during his Senate confirmation hearings.) And like Dahlia Lithwick, Peter Rubin, and many others before him, Hentoff could only make Judge Roberts' opinion look bad by falsely attributing to Judge Roberts ugly stuff that they'd made up themselves.

Here's how Hentoff misrepresents the record (ellipsis, italics, and all bracketed portions by Hentoff):

Here is what Judge Roberts said in his decision: "No one is very happy about the events that led to this litigation." Indeed, he added, this 12-year-old girl "was transported in the windowless rear compartment of a police vehicle to a juvenile processing center.... The child was frightened, embarrassed and crying throughout the ordeal."

However, righteously said John Roberts, revealing the core of his humanity under his black robe: "[The arrest advanced] the legitimate goal of promoting parental awareness and involvement with children who commit delinquent acts."

On Fox News Channel's July 20 Special Report With Brit Hume, Harvard law professor Laurence Tribe — whose books on constitutional law have often been quoted in Supreme Court decisions — addressed John Roberts's disposition of this flagrant criminal act by 12-year-old Ansche Hedgepeth:

"Saying that the Constitution afforded no protection against a flat rule that allowed no tolerance whatsoever when someone, like a little kid, eats a piece of food in the subway, why didn't that [decision by John Roberts] violate [the child's] liberty?"

He was referring to the essential constitutional interest in personal liberty that is particularly embedded in the Bill of Rights. Without those 10 amendments, the Constitution would not have been ratified.

Tribe went on to say, "The country needs to know, not how he will rule in particular cases — God knows, in the next 30 years, cases we can't even dream of will come before him — but what will be his starting premises about the Constitution?" (Emphasis added.)

As Tribe put it, "If you're a minor, one french fry and you're busted, [for the judge to show no discretion] needs some explanation."

Roberts gave his explanation in his decision. Ansche Hedgepeth was a delinquent! She and her parents must be taught a lesson about our immutable rule of law. "The question before us," Roberts wrote for the D.C. Circuit Court of Appeals, "is not whether these [Metro system] policies were a bad idea but whether they violated" the Constitution. "We conclude they did not."

Mr. Hentoff is obviously a student of the Maureen Dowd School of Journalistic Accuracy and Ethics. That is to say, at least in this article, Nat Hentoff told lies in print by doctoring his quotes and by fabricating much of what he didn't put inside quote marks.

The sentence that Judge Roberts actually wrote (at page 12 of the .pdf file) was this: "We conclude that the no-citation policy for minors is rationally related to the legitimate goal of promoting parental awareness and involvement with children who commit delinquent acts." Hentoff butchers and misrepresents that sentence in several different ways.

First, Hentoff deletes the initial clause of the sentence, the reference to "rationally related," and substitutes for it instead his own phrase, "The arrest advanced ...." Hentoff apparently isn't a lawyer — his Doctorate of Laws from Northeastern University is merely honorary — but he writes frequently on legal matters and is billed as an "expert on the Bill of Rights, the Supreme Court, student rights and education." If so, or if he actually read the rest of Hedgepeth, he'd know that the "rational relationship" language he casually deleted was the key to the entire holding in Part III of the opinion and, indeed, dictated the result. That the Hedgepeth family's claims had to be reviewed under the "rational relationship" test rather than under some more equal protection strict scrutiny was virtually outcome-determinative. Perhaps that's a bit deeper into the law than Hentoff or the Village Voice chose to wander; well, if so, that's fine, but you ought to write about jazz clubs or some other topic altogether. If you're going to write honestly about law, lawyers, judges, opinions, and constitutional law, though, you can't just excise the most important parts.

But having excised the key to the opinion's equal protection holding altogether, Hentoff proceeds to twist Judge Roberts' words, and then simply fabricates others. Judge Roberts never wrote that Ansche Hedgepeth "was a delinquent!" or that "[s]he and her parents must be taught a lesson about our immutable rule of law." And not only did Judge Roberts not write that, nor anything that could be fairly summarized or paraphrased by those words, but those words are antithetical to what he did write. When a minor breaks the law, by definition that is a "delinquent act," and it was impossible to discuss the case at all without discussing the policy choice — created not by Judge Roberts, but by the District of Columbia statute and Metro's enforcement policies — to make juvenile french fry eating a crime requiring arrest. But rather than calling Ansche Hedgepeth "a delinquent," Judge Roberts' opinion actually refers to her by either neutral or sympathetic terms, and his deliberate inclusion of details of her arrest clearly reflect his recognition that she's been a victim (albeit a technically guilty one) of a stupid law and enforcement policy (albeit not unconstitutional ones). "Flagrant criminal act" is Hentoff's characterization, not John Roberts'.

Indeeed, from its opening sentences, Judge Roberts' opinion drips with disapproval and disagreement with the D.C. statute and Metro's policies for enforcing it. He writes:

The district court described the policies that led to her arrest as "foolish," and indeed the policies were changed after those responsible endured the sort of publicity reserved for adults who make young girls cry.

This is probably as close to mocking someone as John Roberts has ever done from the bench. Yet is is Hentoff who seeks to portray — falsely, recklessly, outrageously — Judge Roberts as being the sort of "adult who make[s] young girls cry," and enjoys it. We could call Mr. Hentoff's style "mocking as a mockery of the truth."

Hentoff even uses bracketed insertions to distort Larry Tribe's statements! From the context, it's obvious that "why didn't that violate liberty?" referred not to Judge Roberts' opinion (which, by the way, affirmed the district judge's ruling and was joined in fully by the other two DC Circuit judges on the panel), but to Ansche Hedgepeth's arrest. Mr. Hentoff's bracketed insertions would only make sense if Prof. Tribe was saying Judge Roberts was the defendant in the lawsuit, and even Prof. Tribe isn't usually that confused.

(As for the merits of Prof. Tribe's statements: Supreme Court precedents from 1975 and 2001 cited by Judge Roberts (at page 12 of the .pdf file) show that "[t]he law of this land does not recognize a fundamental right to freedom of movement when there is probable cause for arrest[, and t]hat is true even with respect to minor offenses." These comments thus fall into the class of arguments Prof. Tribe feels free to make on TV, but knows better than to ever put in his books or articles, much less argue in court, because they're absolutely foreclosed by the caselaw. To observers more knowledgeable about the law than cable news hosts, such arguments make him look either very stupid or simply dishonest. I, for one, don't think he's stupid.)

Mr. Hentoff, Prof. Tribe, Ms. Lithwick, Mr. Rubin, and others from the left would prefer to have a Supreme Court that decides cases based upon its Justices' feelings. That's pretty much the whole point of Mr. Hentoff's article. Well, okay — I think that's ridiculous, but it's one point of view, and they're entitled to it. They're entitled to oppose Judge Roberts' nomination on the basis that he's made it absolutely clear, by his words and his deeds, that that's not the kind of judge he's been nor Chief Justice he'll be.

But what Mr. Hentoff and his friends are not entitled to do, friends and neighbors, is to misquote, misrepresent, and outright fabricate Judge Roberts' words — to not only unfairly impute repugnant, ugly feelings to John G. Roberts, Jr., but then to argue that those ugly feelings, rather than the law, have been the secret basis for his judicial decisions! It's not enough for them to oppose Judge Roberts' nomination on grounds that he's a judicial conservative who upholds, and decides cases based on, the rule of law. No, they've got to demonize Judge Roberts. Peter Rubin wanted to use the Hedgepeth case to imply that Judge Roberts is a closet racist, and now Nat Hentoff wants to use it to make him into a malicious child-hating bastard. Well, friends and neighbors, that's too vile a tactic even for their allies among the Senate Democrats to use. Not even Chuck Schumer or Dick Durbin would stoop that low. Such a malicious attack in a televised hearing against a man of such obvious decency would have blown up in their faces big-time — and that's why, I think, we didn't hear any mention of the Hedgepeth case from them in last week's hearings.

NYT opposes Roberts solely because he won't precommit to votes they'd prefer

It's a very high threshold to cross, but I do believe that this is the most stunningly disingenuous editorial I've ever read in the New York Times. The Times editorialists acknowledge that —

• "John Roberts failed to live up to the worst fears of his critics in his confirmation hearings last week";

• even "[w]eighing the pluses and minuses and the many, many unanswered questions, and considering some of the alternatives, a responsible senator might still conclude that he warrants approval";

• "few lawyers in America can compete with Mr. Roberts in professional accomplishments";

• "[i]f the test were legal skill alone, Mr. Roberts would certainly pass"; and that

• "[i]f he is confirmed, we think there is a chance Mr. Roberts could be a superb chief justice."

And those concessions — all of them blindingly obvious and indisputable — ought to be enough for any President's Chief Justice nominee to be confirmed. But of course, the present President is George W. Bush's nominee, and the shorter and more honest version of this editorial would have read: "Any nominee from this President for anything must be defeated."

Here's the crux of the Times' lie: "[I]n many important areas where senators wanted to be reassured that he would be a careful guardian of Americans' rights, he refused to give any solid indication of his legal approach." If you substituted "commitments as to how he'd vote" for "solid indication of his legal approach," this would be a true statement, and the former is in fact the only thing the Times cares about. The only thing remotely close to a principled reason to oppose the Roberts nomination that the Times advances is his refusal to precommit that on the merits of the most controversial and divisive cases the Court may face, he'll vote for the results the NYT prefers. That's as good as their argument gets, folks.

Well, okay then. If that's the standard, then the Supreme Court is solely a creature of politics. Let's just drop any pretense that we value "the rule of law" or "judicial independence" or "appearance of impartiality and propriety." Let's rename the Supreme Court and call it the "Supreme Soviet" instead. If that's the standard, then with respect to those vacancies that occur when the President and the Senate are controlled by the same party, the Senate will rubber-stamp every nominee; and with respect to those vacancies that occur when different parties control the White House and the Senate, the Senate's role will vanish entirely, and the President will keep the Court functioning solely through his power to make recess appointments that bypass the Senate. If that's the standard, then we've all been wasting our time on these confirmation hearings, and Dubya ought to just go ahead and recess-appoint, oh, say, Karl Rove as Chief Justice the next time the Senators leave town. (There's no constitutional requirement that the Chief Justice be a lawyer, after all.)

The only way a person of even marginal political intelligence could write an editorial like this would be if he's absolutely certain that he could immediately thereafter retreat behind anonymous storm- and logic-proof shutters, from which he's free to pretend that no counter-arguments exist. A three-minute debate would explode this point of view with a violence that would put the Hindenburg disaster to shame. I really do prefer my bomb-throwing revolutionaries without the hypocritical pretense of commitment to principles like "rule of law" and "judicial independence." Give me a Mark Tushnet who straightforwardly says (my paraphrase) "Dems, vote against this guy just because he's Dubya's nominee and you're against Dubya" over the polished, disgusting liars of the New York Times.

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UPDATE (Sun Sep 18 @ 1:00pm): I hasten to add that this nonsense from Phyllis Schlafly is every bit as disgusting to me as the NYT's editorial:

As John Roberts sailed through his confirmation hearings, conservatives stepped up pressure on George W. Bush to choose his next Supreme Court nominee more squarely in the strict-constructionist, Antonin Scalia mold. Another Roberts, according to conservative activist Phyllis Schlafly, would be "a betrayal." Why? Because Roberts left it unclear whether he would uphold Roe v. Wade, and Schlafly and others want a sure vote to reverse it.

From the right or the left, anyone who thinks Roe v. Wade is the only important issue the Supreme Court may face is an idiot. And anyone who thinks judges and justices ought to be picked and confirmed based on their precommitments to vote particular ways in particular cases doesn't understand — and hence is an implied enemy of and/or danger to — the rule of law.

Also, this   editorial from the Washington Post is about as vivid a contrast to the NYT editorial as one could imagine two consistently left-leaning newspapers producing. Key sentences:

[O]n a number of important issues, Judge Roberts seems likely to take positions that we will not support.... These [issues on which he may vote against the way we'd like] are all risks, but they are risks the public incurred in reelecting President Bush.

That almost gets it just right; my only quibble is that the word "risks" imputes a from-the-left frame of reference to the American public that I don't think can be justified, given the result of that election. But otherwise, the WaPo editorial reads like something written by grown-ups who understand the basic premises of both politics and justice. The NYT editorial reads like something written by teenagers who lack that understanding of either, and who're trying very hard, but without success, to hide the fact that they're still mid-tantrum over the last election.

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UPDATE (Sun Sep 18 @ 2:15pm): In her very good post contrasting the two editorials, Prof. Althouse makes some of the same points I've offered here — for example, that "The Times doesn't even face up to the issue of the illegitimacy of binding the nominee to particular outcomes" — along with the very interesting observation that none of the senators ever questioned Judge Roberts about the famous French Fry Case, Hedgepeth. She offers an interesting guess as to why, and I offer a different (and more self-important) guess in her comments.