Mary Beth Norton is a well-known historian of women and early American history at Cornell. She played a cameo role in Jon Wiener's Nation article on Bellesiles' critics, where Wiener quotes her as concluding "that Bellesiles's interpretation of the documents was “‘just as plausible’ as that of his critics, ‘if not more so.’” (In his critique of Wiener, Prof. Jerome Sternstein finds her support of Bellesiles more problematic.)

Norton has an OpEd in today's New York Times drawing some lessons from the Salem witch trials of 1692, based on her new book. She argues that the hysteria that broke out in Salem was a result of the strains and stresses resulting from the violent war against the Indians in neighboring Maine. The Indians, the evil ones of their day, were thought to have the Devil on their side. "Witchcraft," she writes, "explained why they were losing the war so badly."

After the war the hysteria declined. "Slowly, northern New Englanders began to feel more secure. And they soon regretted the events of 1692." Over the next years restitution was given to the families of some of those executed. Norton concludes:

And last year, more than three centuries after early Americans reacted to an external threat by lashing out irrationally, the convicted were cleared by name in a Massachusetts statute. It's a story worth remembering -- and not just at Halloween."

I agree. Will someone please tell President Bush that, whatever he does, he must not attack the Indians in Maine.

In "Making of a Minnesota Debacle," Howard Kurtz of the Washington Post asks:

How badly can a political party screw up a memorial service?

Just ask Minnesota's Democrats.

Now look at how the same event was covered -- page one, above the fold -- by the New York Times:

MINNEAPOLIS, Oct. 30 — Walter F. Mondale, the former vice president who last held elective office 22 years ago, agreed tonight to replace Senator Paul Wellstone on the Nov. 5 ballot, but the nomination was marred by a partisan squabble over the previous evening's televised memorial service for Mr. Wellstone.

The venom with which Republicans here and in Washington had attacked Mr. Wellstone's record was replaced today with an equally aggressive debate over tactics in the truncated Senate campaign, as state Republican leaders and others denounced the Democrats for turning what was billed as a somber memorial service into a rousing political rally.

One wonders if the NYT can even cover the "blue" states.

From the "KidsPost" section of today's Washington Post (not, you understand, that you are a kid).

Readers List the Best and Worst Treats of Halloweens Past
....

My mom is not a normal mother. She feels it's her duty to give out toothbrushes at Halloween. Now this would be completely understandable if she was a dentist. But guess what? She's not. My mother just finds it funny to embarrass me as much as she can. Please tell her to stop.

-- Karen Orrick, 13, Bethesda

Today, Sen. Ted Kennedy said "It's wrong to drag the federal courts into the voting booth."

But in a whole series of yesterdays, of which the following are only examples...

Senator Torricelli:
If we fail, not only does Ted Kennedy lose control of our ability to govern labor laws, not only does Patrick Leahy lose the ability to control the ideologues who get on the federal courts and the Supreme Court, we lose the our agenda of government itself.
New York Times, 9/24/2002

Ann Richards campaigning for Mel Carnahan, 2000:
"Everything you can think of is going to be up for grabs before that Supreme Court, and I want to make sure that we've got a Senate that's going to scrutinize anybody nominated," she said.

She said abortion rights, Social Security and health care need to be protected from the "bizarre" and "right-wing nature" of the GOP Senate.
St. Louis Post Dispatch, 6/27/2000

"Democrats Ask Nader to Back Gore in Swing States":
"I've tried very carefully to convey to Nader supporters our highest regard for his career," said Ralph G. Neas, the president of People for the American Way. "But I want him and his supporters to know how history will view him in the final analysis if he gives the Supreme Court to the right wing."
New York Times, 10/31/2000

Democrats:
There are indications that the Court is more prominent in this year's election than it has been since 1968, with 36 percent of voters in a recent Newsweek poll indicating that they regard Supreme Court appointments as a significant election issue.

Democrats are attempting to cultivate this issue by warning voters that the fate of abortion rights, affirmative action, gun control and gay rights all hinge upon judicial appointments that the next president is likely to make.
Legal Times, 10/9/2000

Al Gore Supporters:
A new riff on an old slogan has caught the fancy of Al Gore's presidential supporters.

"It's the Supreme Court, Stupid," goes the new version, sported on buttons eight years after President Clinton won the White House by insisting "It's the Economy, Stupid."
Cleveland Plain Dealer, 10/16/2000

Al Gore in first debate with Bush:
[The Supreme Court] is on the ballot in this election, make no mistake about it.
New York Times transcript, 10/4/2000

Va. Gov. Mark Warner (D, but gun totin') on the
upcoming referendum to raise transportation taxes
in Northern Virginia:

The opposition continues to throw up arguments that I don't think carry a lot of water, but they constantly try to plant a seed of doubt."

Erin O'Connor, a tenured English professor at the University of Pennsylvania, has a must-read post about officially imposed discrimination there (Link via InstaPundit).

She cites a Daily Pennsylvanian article (which she warns may not be available long. She has a copy, and now I do too) that reported on an open meeting at which the university policy of offering "incentives" to departments to hire women was described and, somewhat more unusual,

[Penn Provost Robert] Barchi said that disincentives are being instituted on an individual departmental basis. He said that he had discussed recruitment policies with all the deans and that they were doing the same with department chairs.

People and institutions have now been doing this sort of thing for so long, and it has become so accepted, that they're no longer embarrassed about saying it out loud. They've forgotten how shocked some of us still are -- not so much at seeing it, which we're used to as well, but seeing the degree to which our traditional ideas of fairness have morphed into a new version whose racial/ gender/ethnic/(religious next?) engineering to achieve "diversity" actually requires discrimination.

UPDATE [11/1/2002]

See additional discussion from Erin O'Connor here and here.

Go here, now, for a must read case study of political correctness. It will make you laugh; it will make you cry; it will make you mad. (Great Chain of Blogging: link via Ipse Dixit via Cut on the Bias)

InstaPundit observes this morning that "[t]he Emory Wheel ... is doing a lot better job of covering [the Bellesiles controversy] than the New York Times, and he's absolutely right. He links to a recent article and editorial in the Wheel.

It is all the more remarkable that the NYT has dropped the ball on Bellesiles because it claims special pre-eminence in covering "culture," including especially its largely home town publishing industry. Knopf, which published Arming America, is just across town; the New York Review of Books, which gave Bellesiles a glowing review that has not been retracted, is just uptown; Columbia University, which administers the Bancroft Prize Bellesiles won and still has, is farther uptown; and of course the New York Times Book Review, source of another glowing, unretracted review, is right down the hall.

Anyone who hasn't done so should follow the InstaPundit links given above to the recent article and editorial in the Emory Wheel. They are each remarkable documents, and, I think, highlight an aspect of the debate that has not been sufficiently appreciated.

Odd as it seems, reading them I was struck by the fact that Bellesiles' defenders and critics actually agree on what they disagree about. They both believe that more important than the guilt or innocence of Bellesiles himself -- whether of fraud or sloppiness -- is the larger matter of the influence of politics on scholarship. Bellesiles and his defenders imply, and frequently assert, that he was attacked -- and now they will surely add, hounded out of the academy -- because he had the temerity to challenge "the gun lobby" and what Bellesiles calls the "invented tradition" of our early gun culture that it has promulgated. Thus they tend to view his critics as either witting or unwitting members of a vast right wing conspiracy determined to stamp out dissenting scholarship. Bellesiles' critics agree that gun politics are corrupting scholarship, but in their view Bellesiles ignored, distorted, or manufactured evidence in order to bolster his pre-conceived conclusions.

In my view, this conflict can best be seen, not as an argument over the politics of guns, but as another significant skirmish in the ongoing culture wars. For Bellesiles and his defenders, all that matters is his interpretation that in early America guns were much less prevalent and prominent than the gun lobby would like us to believe. Sure, he made mistakes, but everybody makes mistakes. Even if he cut too many scholarly corners (and of course the defenders don't concede that he did), all that would mean is that he was a flawed messenger (here they would chortle over turning Prof. Jerome Sternstein's "Shoot the Messenger" criticism back against him), not that the message was wrong. In this view, as we shall see in more detail below, Bellesiles thus begins to resemble an academic Clinton, doing good work despite his all too human flaws, and Lindgren, Sternstein, and those Jon Wiener is pleased to call the "pack of critics" don the inquisitorial robes of Ken Starr.

This flag was raised by Bellesiles himself in his statement included in the Emory report. "It seems to me that raising uncertainties that question the credibility of an entire book, without considering the book as a whole, is just plain unfair," Bellesiles wrote. Sure enough, some are already falling into line to salute.
Thus the Emory Wheel article linked above states that

Michael Zuckerman, a historian at the University of Pennsylvania, downplayed the results of the report. Zuckerman said Emory framed the charges of the committee so "unbelievably" narrow that he would not have served on the committee if asked.

"Emory's losing an immensely talented historian," Zuckerman said. "He's got a million other pieces of his argument that don't remotely touch on [probate] inventories."

According to the same Wheel article, Clayton Cramer, one of Bellesiles' earliest, most thorough, and most persistent critics, also agrees that the Emory Report was too narrow. He is disappointed that it did not pursue "the much larger and more obvious examples" of what he is convinced was intentional fraud.

Cramer and some other early critics were skeptical of Bellesiles' claims from the get-go because of their familiarity with, or sometimes merely interest in, the history of guns in America. These critics, unfortunately, were initially simply written off by most of the history profession as amateurs or gun nuts, an odd response when it came from scholars who in other circumstances argue that scholarship is not unworthy simply because scholars pursue political interests and objectives.

I've never met Professors Lindgren or Sternstein, widely recognized as among the most highly regarded of Bellesiles' academic critics, but from reading their criticisms my impression is that their motivation has nothing to do with guns but rather with scholarly standards. Certainly that is the position of Emory University itself. Again, according to the Wheel article,

[Interim Dean of the College] Paul said the committee was charged with evaluating five specific aspects of alleged research misconduct, in order to keep the committee focused on academic issues in a controversy that some say has been fueled largely by gun politics.

"I would like to state to the world at large that this panel was asked to answer questions that had specifically to do with questions of research misconduct, not with either error or poor research quality," Paul said. "And that given that, this report in no way addresses the question of the validity of the overall theses in the book which still remain to be settled by scholarly debate."

[Bellesiles] ... claims the scope of the committee's investigation was too narrow, and that his main thesis still holds true despite the errors found in a minor part of his research.

By making this claim, Bellesiles is skirting the real issue. It doesn't matter now if the argument in Arming America is valid -- it matters that he has lied numerous times in defending his book....

The investigation, and Bellesiles' subsequent resignation, should be a reminder to the Emory community that academic research is, above all, about searching for the absolute truth. That's what our professors teach students every day. We should expect the same from them.

At the risk of oversimplification, on one side of the increasingly barbed cultural barricades are those who believe truth is whatever serves justice, i.e., women, minorities, critics of American foreign policy, gun control. Thus Wiener returns over and over to "[t]he political implications" of Bellesiles' book. "The Second Amendment," he says it suggests, "was not adopted to protect the widespread ownership or popularity of guns ... it undermines the NRA's picture of a citizen militia (rather than a national army) as the bulwark of American freedom" etc. And he closes his article with the following dark warning:

But the campaign against Bellesiles has demonstrated one indisputable fact: Historians whose work challenges powerful political interests like the NRA better make sure all their footnotes are correct before they go to press.

Thus it is not surprising that the Bellesiles debate has quickly ballooned into a familiar debate over these old chestnuts from the cultural wars. Take a look, for example, at this exchange over Prof. Sternstein's recent article on the History News Network:

John J. Brennan, III: Thank you, Professor Sternstein. The most disturbing aspect of this is the utter obliviousness of Bellesiles and his defenders to the damage to the cause of honesty. Certainly, it demonstrates their willingness to sacrifice a core value of human discourse if it advances their agendas.

Clayton E. Cramer: If I had to pick a sentence that describes the problem that Mr. Brennan is observing, it is that this is a crowd that thinks, "What is the meaning of 'is'?" is a clever response to a question.

Steve Lowe: This is exactly the kind of comment that irritates liberals like me: the implicit comparison of Bellesiles and Clinton, as though the fact that both are weasels means all liberals or, indeed, anyone favoring gun control or, indeed, anyone who isn't currently heating the tar and plucking the chickens for Bellesiles is also a weasel.

I think it's possible to believe that Bellesiles is wrong, that Clinton was a good president with _serious_ personal shortcomings, and even be ambivalent about gun control.

Damning people because of their associations of beliefs is exactly what Prof. Sternstein is criticizing, Mr. Cramer.

Ekleketos: There were plenty of honest liberals out there, instead the dnc attached itself to the butt of a lying criminal. They were so preoccupied with not admitting they were wrong about the man that they defended anything he did. Much as [Wiener] is defending Bellesiles.

UPDATE

Kimberly Strassel of the Wall Street Journal takes a similar view:

From the start, the Bellesiles battle was portrayed as the usual one--between right-wing gun owners and left-wing gun regulators. But to look at "Arming America" that way is to miss the real divide.

Yes, the spokesmen for the opposing interest groups threw themselves into the fray. But soon the real split became one within academia. It pitted those who cared about scholarly integrity against those who were happy to ignore, or promote, Mr. Bellesiles's shoddy, perhaps fraudulent, work if it helped their political agenda.

Posted by John at 03:31 PM | Permalink | Say what? (7) | TrackBack (0)

Today is Jessie's 16th birthday!

This blog never would have been launched if Jessie hadn't insisted on it, and done all the heavy lifting to make it happen. She's been too busy to participate lately, but here's hoping that, now that she's a year older, she'll find time to make some appearances here.

You know, Jessie, phsyics may explain everything, but it isn't everything....

In a Washington Post OpEd today, Fred Hiatt argues that Texas's "Top 10%" plan is not producing sufficient "diversity." Adopted as an attempt to preserve access of minorities after affirmative action was outlawed by the Fifth Circuit, the plan guarantees university admission to the University of Texas at Austin, the flagship campus, to the top 10% of the graduating class in every high school. Hiatt notes, however, that "Hispanics and African Americans continue to be underrepresented, with blacks making up only 3.4 percent of the entering class this fall."

Of course, African Americans, or any group, are only "underrepresented" if the organizing principle of the institution is that groups (all groups?) should be proportionally represented. That is certainly not an inherently unappealing value, but it conflicts with another deeply held value, judging everyone according to the same standard, whatever the standard is. Achieving racial and ethnic diversity, which in practices means to its defenders achieving something closer to proportional representation, requires different standards for different groups. Thus Hiatt quotes the chancellor of the University of Texas system, Mark Yudof, lamenting the inability "to seek out minority candidates with the potential to succeed who fall just short of the top 10 percent."

Also today, in the Chronicle of Higher Education (link requires subscription), Roger Clegg points out that courts have been much less tolerant of the preferential hiring of faculty than of preferential admissions. After summarizing the current legal standing of each of those forms of discrimination, he concludes with a question that defenders of discrimination to achieve diversity should ponder:

Whether the law allows it or not, is it fair to refuse to hire or promote someone because she has the wrong skin color or because his ancestors came from the wrong part of the world?

Prof. Jerome Sternstein has a long, detailed critique of Jon Wiener's
NATION article that takes into account the recent Emory report. It's quite impressive.

Orrin Judd questions (and pretty well answers) "whether the NY Times is even competent to cover Red State America."

He was referring to the nonchalance with which calumnist Paul Krugman (calumny: a misrepresentation intended to blacken another's reputation -- Merriam Webster Online) dismisses the Christian right and the gun lobby as mere "special interest groups, continuing the New York Times tradition (which I discussed here) of treating the people in roughly half of the households in the country that contain guns as though they were not people at all but merely a "lobby," with no identity apart from the NRA.

Here they go again. The following is from Adam Nagourney in today's NYT:

In Maryland last week, the Republican candidate for governor, Rep. Bob Ehrlich, who has a long record of voting against gun control legislation, attacked his Democratic rival, Lt. Gov. Kathleen Kennedy Townsend, for the state's failure to check the criminal backgrounds of prospective gun purchasers.

Ehrlich has been demanding stronger enforcement of background checks for years, well before he looked in the mirror and saw a future governor of Maryland. See this press release from 2000, for example.

Indeed, I would be willing to wager that most readers who get their news from the NYT -- like, apparently, at least some of its writers -- are unaware that the NRA supports background checks. Here is the NRA's chief lobbyist, in a letter available of the NRA's website, complaining in March 2001 about $300,000,000 wasted over the previous eight years that were supposed to develop a computerized capacity for those checks:

Here we stand, 8 years later and with over $300 million in taxpayer money spent. Unfortunately, all we have to show for it is a woefully inadequate system. But, times have changed. We have a new administration, a new Justice Department and new members of Congress. It is my sincere hope that together we can finally develop an efficient "instant check" system that will deliver its promise to the people--a promise supported by the NRA in congressional testimony for nearly 15 years.

WASHINGTON - The House yesterday passed without dissent a bill authorizing $1.1 billion in federal funds to help states computerize criminal records so they can be used in background checks on gun buyers.
....
Similar legislation is being blocked in the Senate even though it is supported by both gun control advocates and gun owner groups such as the National Rifle Association.

Most of you know by now that The Nation published a defense of Bellesiles by Jon Wiener -- actually, it was not so much a defense of Bellesiles as an attack on his critics -- and that blogcitizens who have been following the issue found little of substance in it. See here, here, here, and here.

I am not going to discuss Bellesiles, but I do want to say something about The Nation and Wiener that, I think, will put his recent Bellesiles article in context -- despite the fact that, as I have said here before, years ago I spent some time working at The Nation and used to know Wiener, with whom I share good mutual friends.

His recent Bellesiles article is not unique. In fact, it is merely the latest entry in what amounts to an irregular series at The Nation. Wiener is on call as something like its academic commissar, constantly policing college precincts to blast away at any deviationism that should appear. Of the articles in this ersatz series, I want to mention one and provide a more substantial comment on another, dealing with a controversial episode on which I am an involuntary expert since I was a participant.

D'Souza and Harvard

In his book, Illiberal Education (Free Press, 1991), Dinesh D'Souza discussed a nasty incident in 1988 that began when several students in Harvard history professor Stephan Thernstrom's class on "The Peopling of America" went to authorities and accused him of "insensitivity" for assigning material from the journals of slaveholders and allegedly making comments about the black family that they found offensive. The controversy was picked up by the Harvard Crimson and ultimately embroiled the campus in an ugly debate about racism and academic freedom that, in its most significant concern, dealt with the response (or lack of it) from the Harvard administration, which was at best tepid in its defense of academic freedom. He refused to teach the course again.

In their respective reviews of D'Souza's book, the highly regarded historians Eugene Genovese and C. Vann Woodward both prominently mentioned the controversy at Harvard. Here is Genovese:

The Harvard administration more or less upheld Thernstrom's academic freedom; it did not fire him for having introduced pro- slavery and racist documents in his course on "The Peopling of America," which he co-taught with the distinguished historian Bernard Bailyn. Significantly, the students who complained about Thernstrom's "racial insensitivity" did not bother to confront him, as academic protocol, not to mention common courtesy, would require. Instead, they took their complaint to the administration and the press. In the event, the dean of the college, without mentioning Thernstrom by name, gravely announced his stern disapproval of "prejudice, harassment, and discrimination," and warned professors to watch their mouths, lest they offend the sensibilities of their students. In effect, the Harvard administration acknowledged Thernstrom's right to behave in a manner that embarrassed the university and ought to make him ashamed of himself. No doubt Bok and most of his deans disapprove of the excesses that accompany the struggle for diversity, sensitivity, and a radiant future for the peoples. They are merely doing their best to create an atmosphere in which professors who value their reputations and their perquisites learn to censor themselves. ("Heresy, Yes- Sensitivity, No," The New Republic, April 15, 1991)

When Professor Stephan Thernstrom described Jim Crow laws and their effects in a history lecture in February 1988 members of the Black Student Association denounced his "insensitivity" in the Harvard Crimson. They claimed he said that Jim Crow laws were "beneficial" and that "he read aloud from white plantation owners' journals" that gave a "benevolent" picture of slavery. They took their complaints to the Committee on Race Relations set up by President Derek Bok to handle such matters. Instead of coming to Thernstrom's defense, Dean of the College Fred Jewett issued an open letter the following week saying, without mentioning Thernstrom, that "recent events" compelled him to "speak out loudly and forcefully against all kinds or prejudice, harassment and discrimination" and stress the need for "warnings and clear messages about the inappropriateness and insensitivity of such behavior." A month later the dean of the faculty assured Thernstrom that no disciplinary action would be taken against him, and praised his accusers as "judicious and fair." It remained for President Bok to say Thernstrom had a right to teach as he wished, but that professors should avoid "possible insensitivity." Thernstrom has stopped offering the course he taught with Bernard Bailyn. "It just isn't worth it," he said. ("Freedom and the Universities," The New York Review of Books, July 18, 1991; here if you have an online subscription)

In short, Wiener compiled a large number of quotes from people who were not sympathetic with Thernstrom, but nothing he unearthed challenges the basic story. Indeed, he unintentionally confirms it at one point by quoting another Harvard history professor who couldn't understand what, in the absence of formal disciplinary action, all the fuss was about: "But nobody did anything to Steve except say he had been insensitive." That's rather like saying, "Oh, it wasn't McCarthyite for the president and the dean to announce that Prof. X is a possible communist sympathizer. After all, they didn't demand his resignation." (Wiener, "What Happened at Harvard," The Nation, 9/30/91)

At the same time as his Nation screed, Wiener sent a letter to the New York Review of Books criticizing the "distortion" of C. Vann Woodward's "attack on multiculturalism" in his review of D'Souza. This letter did not mention Thernstrom, however. Here, Wiener referred only to Woodward's criticism of campus speech codes, which Wiener defended under the "fighting words" doctrine that has been rejected by virtually (actually?) every court that has considered these codes. ("Exchange Over 'Illiberal Education,'" New York Review of Books, 9/26/91; here) for online subscribers)

EEOC v. Sears, Roebuck and Co.

This episode will be much harder for me to discuss because I know much more about it and because it is hard (but necessary!) to resist the temptation to re-argue the whole case, but here goes. For about five years, roughly 1980-1985, I "practiced history" with Morgan Associates, Charles Morgan, Jr.'s small Washington, D.C., law firm that represented Sears in EEOC v. Sears, Roebuck and Co. 628 F. Supp. 1264 (1986), 839 F.2d 302 (1988).

This case is noteworthy for several reasons. At the time it was the largest sex discrimination case that had ever gone to trial. (After AT&T;, Sears was the largest private employer of women in the country.) It was also, unusually, a purely statistical case. Despite a massive nationwide hunt for victims by the EEOC and its allies in NOW and other feminist organizations, none were found who survived the pre-trial process; thus no live victims/plaintiffs were involved in the trial. Finally, Sears was so large that determining the role of sex (and of sex roles) in the makeup of its workforce required nothing less than an analysis of the role of women and work in all of American society, which required the prominent involvement of historians.

The Sears defense not only had a historian on staff (me) and presented expert testimony from a women's historian (my ex-wife, Rosalind Rosenberg, of Barnard College) but to the great consternation of many historians it actually incorporated a strong feminist perspective in its argument. The workforce at Sears in the years at issue, we argued, had grown up in an America where sex roles, for better or worse, were real. Thus the "underrepresentation" (compared to what?) of women in such jobs as installing home heating systems was not necessarily the result of discrimination by Sears. To argue that one would expect an equal number of women and men to be interested in and available for all types of jobs, as the EEOC did implicitly and sometimes explicitly, was to deny the reality of sex roles, and thus undermine the justification of affirmative action for women. (Sears' voluntary affirmative action plan, incidentally, was so strong that the Nixon administration had regarded it as a quota system.) The percentage of women in various positions at Sears (selling hardware, clothes, appliances, air conditioners, etc.) closely tracked the percentage of women among sole proprietorships in those areas. Did women discriminate against themselves in choosing what businesses to run? Commission sales, in addition to requiring a certain amount of personal aggressiveness, required long hours and, often, access to a car. Was it necessarily Sears's fault that fewer women than men were interested in the risks and stress of selling on commission, that many more women than men chose to work part-time, and that a far smaller percentage of women had drivers' licenses and access to a car? The significance of these social facts would have been greatly attenuated if the EEOC lawyers had found and presented qualified women applicants who had been turned down, but they did not.

The idea of feminist history being used to defend a large corporation accused of sex discrimination simply sent many historians around the bend, or off the deep end. Thus perhaps the most noteworthy aspect of Sears -- in any event, what is most relevant here -- is that it ignited a fierce debate inside the history profession, and even outside, on the propriety of historians serving as expert witnesses on behalf of clients accused (let me repeat that: accused) of behavior most historians regarded with disgust. In fact, the behavior wasn't even necessarily central; most historians regarded corporations with disgust, and more than a few told me that even if Sears was innocent of the specific charges it, as a large employer, wasn't "really" innocent. It was hard to find a historian, especially anyone in women's history, who did not regard testifying for a corporation accused of sex discrimination the same way Richard Nixon, had he only been in private practice, would have regarded being asked to defend Alger Hiss.

Any suspicion that I exaggerate can be alleviated by a quick look at an article by -- you guessed it -- Commissar Wiener in The Nation. In his telling, it was not so much a trial about Sears as "Women's History on Trial" (The Nation, 9/7/1985). For example, Ellen DuBois (last heard from here organizing a petition by historians against President Bush's Iraq policy) is quoted as saying "the EEOC lawsuit is part of a political battle.... [Rosenberg's] argument is the essence of conservatism and must be read as an attack on working women and sexual equality...." Kathryn Kish Sklar, another prominent women's historian, said "there was no way I [would] be a witness against the EEOC." I have a file of many such comments, but Wiener was quoting these with approval.

Unlike in his later articles, however (perhaps because he was burned here), in putting women's history on trial Wiener made an attempt to enter the debate and analyze and discuss the evidence. It was a mistake. The trial lasted ten months and the transcript alone ran to over 20,000 pages, although most of the relevant evidence was in voluminous archives of depositions, court filings, research memos -- literally rooms full of data. Wiener's article demonstrated scant familiarity with any of this, and the EEOC lawyers who probably vetted it (and his longer reply to critical letters that appeared 9/26/85) proved no more competent than they were at trial.

Since I promised not to retry the whole case, one (humorous) example of Wiener's lack of familiarity with the record will have to suffice. I have mentioned that there were no live victim/plaintiffs presented by the EEOC, but there was one brief attempt. Here's Wiener:

Two women who had been turned down did appear at the end of the trial. Sears picked three applications out of a pool of one hundred as examples of women who were not interested in selling on commission, and the EEOC managed to locate two of them. Each said she was indeed interested and showed she was qualified; one had considerable experience in commission sales.

In the final weeks of the trial [the EEOC] presented two sales applicants to shore up its claim that there were women who were interested in selling on a commission basis who had been denied the opportunity. But the first applied for a full-time position at a store that had no full-time openings, and the second learned on the witness stand that two commission salespeople had been hired who had applied for the same job on the same day she did. One was a white woman and the other was a black woman."

As with his later articles in the same vein on Thernstrom and Bellesiles, Commissar Wiener's Sears article is primarily ad hominem (ad wominem?) invective and innuendo about playing into the hands of the far right, etc. Wiener is a perfect modern example of the hoary tradition of "solidarity" -- no enemies on the left; the enemy of my enemy is my friend, etc. Thus Thernstrom was wrong because his critics were black and besides, D'Souza was the darling of the neo-cons; Bellesiles's critics are wrong because the NRA agrees with them and Lindgren "published an article using data gathered by the right-wing Federalist Society"; women's history should not be judged by whether it persuasively marshals evidence and argument but by whether it helps "working women," and arguments like ours in Sears "play into the hands of conservatives," etc.

Wiener's article waded into a debate that was raging -- and that he helped to inflame -- about the responsibility of historians engaged in public controversies. There are important questions here -- What if good history has bad effects, or bad history good effects? -- but Wiener didn't ask them. His response to Rosalind's testimony, and the response of those he encouraged, was a prototype -- maybe the first real example -- of what would shortly thereafter be labeled enforcing political correctness.

There is only one more item to discuss, but I have saved the best to last. You would think that an article purporting to deal with the use, or misuse, of history in a major trial would identify the major documents and testimony dealing with history and discuss them. Wiener does not. Indeed, he fails even to mention one of the two central documents at the heart of the debate over history, amounting to a breathtaking distortion of the record.

Sears thoroughly researched and prepared its "history defense," and listed Rosalind Rosenberg as one of its experts well before the trial. In response, and somewhat belatedly, the EEOC signed up its own expert, the well-known women's historian Alice Kessler-Harris. The official history documents, in their entirety, were the following:

1. An "Offer of Proof" written by Sears attorneys listing in short, summary form in numbered paragraphs the arguments Rosalind would make at trial.

2. A written "Rebuttal" to this Offer of Proof by Kessler-Harris.

3. A written "Rebuttal" to the Kessler-Harris document by Rosalind.

4. The actual oral trial testimony by both historians.

The two written "Rebuttals" thus comprise the entire history argument, but Wiener totally ignored Rosalind's document, choosing to treat the short attorney-written "Offer of Proof" as though it contained everything she had to say. Of course it did not. It was akin to reviewing an abstract or summary or precis as though it were the whole book. This purposeful omission had one enormous benefit for Wiener, however. It allowed him to ignore one of the central elements of Rosalind's "Rebuttal" document: the twelve single-spaced pages of contradictions between Kessler-Harris's written testimony and what she had previously published in her articles and books.

Perhaps encouraged by Wiener's precedent, when Signs (which claimed, and perhaps claims, to be the leading scholarly journal of women's studies) decided to publish the primary documents in the Sears case so readers could judge the still-raging controversy for themselves, it too omitted Rosalind's substantive contribution to the debate, even though we notified its editor months before publication that such an omission would make the resulting issue thoroughly misleading and uselessly incomplete. They did, and it is. ("Offer of Proof Concerning the Testimony of Rosalind Rosenberg" and "Written Testimony of Alice Kessler Harris" in Signs, Vol. 11 (Summer 1986), 757-779)

Anyone wishing to pursue this matter further should turn to an excellent article by Sanford Levinson and Thomas Haskell, "Academic Freedom and Expert Witnessing: Historians and the Sears Case," 66 TEXAS LAW REVIEW 1629 (1988). Incidentally, Haskell, a careful, soft-spoken, mild-mannered, highly respected intellectual historian at Rice, sent an uncharacteristically sharp letter to The Nation (10/26/85) that began by stating

In what I hope was only a momentary rage for simplification, Professor Jon Wiener misled Nation readers about the Equal Employment Opportunity Commission's case against Sears, Roebuck and Company, did a disservice to the history profession and was unfair to Professor Rosalind Rosenberg.

Wiener's articles are revealing primary documents in the culture wars, but they contribute little of merit to the substantive disputes they attempt to address.

Finally ...

And now I am going to indulge myself (why else have your own blog?), in part because, as I hope I've shown, Wiener's recent article on Bellesiles is merely a reprise of his earlier one on Sears. When the Sears article first came out, and then especially after his response to Rosalind's and Tom Haskell's letters in a subsequent issue of The Nation, I very much wanted to reply. In fact, I wrote several replies. But because of a request from Sears's lead attorney (and my friend) Chuck Morgan, I did not send them; we were still awaiting the court's opinion. Some months later, after the opinion announcing Sears' victory, it was too late, and was less important. It was time to "move on," even though the personal and professional repercussions of the case were ongoing. But now I feel no such constraint. Here is what I wrote at the time but did not send, preserved on yellowing fan-fold output from a long dead dot matrix printer:

October 27, 1985

To the Editor:

Since I have been in sympathetic association with The Nation (I worked there), with Rosalind Rosenberg (we are no longer married), and with Chuck Morgan (I no longer work with him), I hope you will permit another comment on Jon Wiener's hatchet-job on the use of history in the Sears case (Sept. 7, 1985).

At first I was going to let it pass; I worked on that case at Morgan Associates and did not feel at liberty to discuss it until the court renders its opinion. But Wiener's response to Rosalind Rosenberg's and Tom Haskell's letters pointing out some (not all) of his factual errors and more serious distortions (October 26) underscores the fact that the responsibility of historians, not simply the guilt or innocence of Sears, is involved here, and that deserves comment now.

The EEOC's position, parroted by Wiener, was that employer discrimination is the sole explanation for the employment patterns of women. Readers may be forgiven for thinking I exaggerate, but the government's historian, Alice Kessler-Harris, submitted written testimony actually stating that "where opportunity has existed, women have never failed to take the job offered.... Failure to find women in so-called non-traditional jobs can thus only be interpreted as a consequence of employers' discrimination." Kessler-Harris further testified that responsibilities for family and children placed no greater burden on women than men workers, and that women's own choices and interests have nothing to do with the jobs they take. In fact, she was so hostile to the idea that the system leaves women any room at all to choose that she insisted on placing the terms "choice" and "women's interests" in quotes, and even went so far as to deny that women themselves choose their own major subjects in college or that women business owners choose the types of businesses they own. This argument, it should be clear, has nothing to do with scholarship in women's history and everything to do with the curious political judgment that women's interests depend on insisting that discrimination explains everything.

In what was perhaps his most serious transgression, Wiener suppressed compelling evidence that this debate is not over differing views of women's history but over the politics and propriety of stating in public that women's lives are governed by more than employer discrimination. As proof that there is a broad consensus on the historical issues themselves, Rosalind Rosenberg attached an appendix to her written testimony that gave extensive examples of clear, direct contradictions between what Alice Kessler-Harris testified to in the trial and what even she had written in her articles and books.

For example, Kessler-Harris the witness: "ideas about women's traditional roles are neither deeply rooted in women's psyche nor do they form a barrier that inhibits women's workforce participation," vs. Kessler-Harris the historian: "public policies which affirmed women's home roles engendered a series of psychic self-images and behavior patterns that predetermined women's inferior work force position."

Regarding factors that may affect a wage-earning woman's choice of job, such as childcare, housework, irregular hours, weekend work, commuting distance, etc., Kessler-Harris the witness stated that "in my opinion, those factors are not the reasons why women choose or do not choose jobs," but Kesler-Harris the historian had written that, "still caught in the belief" that home and family came first, many women in the 1970s "chose work for the convenience of being close to home or for hours that suited children's schedules." There were twelve single-spaced pages of similar examples in this appendix.

The point that is relevant here is no so much these contradictions themselves, but that Wiener could presume to write an article about the use of history in the Sears case and not even mention them. This glaring and politically self-serving omission does not inspire confidence in his other judgments, or for that matter in the wisdom of The Nation's apparent appointment of him as a roving proctor to police the practices of the historical profession. (See David Abraham article.)

To his credit, Wiener never really defends the EEOC/Kessler-Harris version of history. Instead, he quotes a few historians who are uncomfortable with history being used to defend anyone accused of discrimination and lamely asserts that he couldn't find anyone who agreed with the Sears argument that discrimination doesn't explain everything. Even here, however, he is not a reliable reporter. I know of at least one historian he spoke to who gave him permission to use her name but who was not mentioned in his article or reply. And Carl Degler, who was quoted in the article as not wanting history used to limit opportunities (who does?), wrote to me after reading the historical testimony (which had not been provided to him by Wiener) that "in the testimony [Rosalind Rosenberg] nails Alice Kessler-Harris very well. There is no doubt in my mind that women have indeed been constrained by family, social, and psychological influences in making choices about jobs" (I quote with his permission).

The debate, in short, is not over history, but the propriety of using history in defense of a charge of discrimination, which is not at all the same thing as defending discrimination -- though many seem to have lost sight of the difference. Apparently, the usually significant distinction between government accusation and guilt flies out the window whenever discrimination is at issue, just as it traditionally evaporated for those on the other side of the political spectrum whenever the charge was subversion or disloyalty.

Indeed, this mentality, which regards any argument that women's career choices are affected by more than discrimination as "an attack on working women" (as one of Wiener's quotees put it), is reminiscent of the familiar view that anyone opposing the red scare was a communist sympathizer, or at any rate "objectively" serving the interests of communism. Thus, Wiener's argument was not so much that Rosalind Rosenberg's history was wrong as that it would "play into the hands of conservatives." Where superpatriots of the past thought that HUAC and the FBI could do no wrong, and that opposing them was somehow subversive even if they did, many liberals and lefties today have a similarly uncritical veneration for another investigative agency of the state, the EEOC.

Some will regard my analogy to a McCarthy-like mentality as overdrawn. I wish it were, but the sad fact is that I know historians who agree with Rosalind's testimony, who abhor, the dogmatism that is hardening the intellectual arteries on the other side of this argument, but who are forced to keep silent out of an all too reasonable fear that speaking out would cost them jobs, promotions, or professional acceptance. For Wiener and his friendly witnesses to fan the flames of this intimidation by branding any feminist who is willing to say in public what she writes in academic journals as an agent or dupe or fellow traveler of the far right and then to piously wonder why more candidates haven't stepped forward to be burned is, at best, disingenuous.

Not only do Wiener and company judge scholarship by an exclusively political standard (is it good for the Jews/Palestinians/women/blacks/etc.), but the particular political standard they use is silly and self-defeating. A Sears loss would discourage other private employers from adopting voluntary affirmative action plans, and it would encourage the government and the women's movement to continue concentrating exclusively on discrimination as the source of all evil. Indeed, the cruelest thing one could do with Alice Kessler-Harris's testimony is to distribute it widely, especially to opponents of comparable worth and other structural changes in the workplace who will find there much support for their view that no such far-reaching changes are required.

It is ironic that so many feminists and their friends should feel the need to circle the wagons in defense of an orthodoxy so precarious that it cannot accommodate -- indeed, regards as heretical -- the common-sense, well-documented (and far more radical) proposition that the entire society and its values, not merely employer discrimination, reinforces traditional roles for women. But no more ironic than Wiener's original polemic -- with is message that scholars must cease their discussion and analysis upon a governmental accusation of discrimination -- beginning on the same page of your September 7 issue as an editorial calling on readers to remember the "moral lessons of the blacklist."

John S. Rosenberg

Posted by John at 05:52 PM | Permalink | Say what? (11) | TrackBack (0)

If this is Islamic terrorism, then they’ve made another characteristically stupid move: that line about “your children are not safe anywhere anytime” is the sort of thing that shoves otherwise peaceable soccer moms into the Bellicose Women Brigades. Pop off a round at an elementary school in Minneapolis on behalf of Jihad, and suddenly a lot of good Linden Hills liberal moms are going to be less inclined to attend the church-sponsored appearance by a survivor of the Jenin Massacre.

We don’t dress up our children in dynamite belts - and they think this makes us weak. We shield our children from death, not marinate them in its bloody juices, and they think this means we lack conviction. Morons. Come after our children, and you don’t know what you’re in for. You heard the part about awakening a sleeping giant? The sleeping giantess is the one you want to look out for, because she’ll tear off your head and lactate down your throat. Do not mess with American moms.

No, not the Confederate flag, but the Red, Black, and Green flag of black nationalism.

A troubling column in today's Cavalier Daily, the student newspaper at the University of Virginia, is highly critical of some inflammatory rhetoric and graphics on the web page of the Griot Society, a black student organization.

The Griot Society was actually founded two years ago by an Assistant Dean of the University's Office of African-American affairs. Its initial purpose was to provide support for students majoring in African and African-American studies, but it has recently become more political, and polemical, and is now concerned with "fighting for global justice among all oppressed peoples."

The student columnist was bothered by a picture on the group's home page of Mumia Abu Jamal, the convicted Philadelphia cop-killer, over a banner proclaiming "We Are All Mumia," he was particularly incensed over the explanatory "mantra" accompanying and purporting to explain the Red, Black, and Green flag of black nationalism:

The Red, or the blood, stands as the top of all things. We lost our land through blood; and we cannot gain it except through blood. We must redeem our lives through the blood. Without the shedding of blood there can be no redemption of this race. However, the bloodshed and sorrow will not last always. The Red significantly stands in our flag as a reminder of the truth of history, and that men must gain and keep their liberty, even at the risk of bloodshed.

The Black is in the middle. The Black man in this hemisphere has yet to obtain land which is represented by the Green. The acquisition of land is the highest and noblest aspiration for the Black man on this continent, since without land there can be no freedom, justice, independence, or equality.

It's too early to say how much of a controversy, if any, today's column will spark, but it will be interesting to see whether any connections are made between this flag and the ongoing debates about the Confederate flag.

The Confederate flag, of course, is drenched in an oppressive history, but the Red, Black, and Green is not altogether innocent either. The "mantra" that the Cavalier Daily columnist finds so offensive, for example, was not written by UVa students; it is ubiquitous on the net, and elsewhere. The Kwanzaa Information Center, for example, uses exactly the same language to explain the flag, and continues:

The colors were resurrected by the Hon. Marcus Garvey, Father of African Nationalism, as the symbol of the struggling sons and daughters of Africa, wherever they may be. Since the 1950's, when the independence struggle began to reap fruit, the Red, Black and Green have been plainly adopted by Libya, Kenya and Afghanistan. Other African States have included the colors Black and Red, combined with yellow or white.

The colors were established in 1920 as the banner of the Universal Negro Improvement Association (UNIA), and adopted as the symbol of Africans in America at the convention of the Negro People's of the World. It is a symbol of the devotion of all African people to the liberation of the African Continent, and the establishment of a Nation in Africa ruled by descendents of slaves from the Western World.

In addition, with the formation of the Republic of New Africa, it has become the symbol of devotion for African people in America to establish an independent African nation on the North American Continent.

The Confederate flag stirred controversy because it was flown by the state on public grounds. The Red, Black, and Green is not similarly flying over the Rotunda, but it is flying, even if only virtually, on a University of Virginia web site, put there by a student group (founded originally by a University official) that may be receiving some University, and hence public, funds.

I wonder if there would be opposition to a Sons of Confederate Veterans student web site electronically flying the Confederate flag. Ironically, a case in which the University of Virginia was the losing party probably means it cannot lower either the actual or the hypothetical flag. Rosenberger v. University of Virginia, 115 S. Ct. 2510 (1995), held that the University could not engage in viewpoint discrimination in distributing funds or services to student groups.

In the 2000 election cycle, according to a Washington Post article reporting findings by the Wisconsin Advertising Project, about one-third of all pro-Democratic independent spending on TV was provided by one person: Jane Fonda.

Fonda gave $11 million that year to abortion-rights and conservation groups. This year, however, her political committee, Pro-Choice Vote, is inactive. In large part as a result, pro-Republican groups are outspending their Democratic counterparts about 3 to 1 (in 2000, their spending was roughly equal).

Why the precipitous drop in pro-Democratic spending this year (other than Fonda's absence)? According to the WP article:

The recent stock market decline has clobbered the political left, which depends heavily on wealthy liberals with large portfolios and a history of giving to groups touting women's rights, environmental initiatives and civil liberties.

Take a look at "No Key Issue in a House Divided," an article in today's Washington Post by Juliet Eilperin and David Von Drehle. Actually, "bias" may not be the right term to describe this article. "One-sided" or "half-truth" would be better.

The authors argue that House races across the country are being decided by local issues, not national themes, and that "[t]his has blurred the political landscape, complicating the Democratic goal of drawing sharp distinctions between the parties." In their view, it is only Democrats who want to draw "sharp distinctions," and it is wily, implicitly disingenuous Republicans who are blurring the distinctions by camouflaging their true selves in Democratic issues.

Republicans in tight House races are steering their well-funded efforts into advertising and direct-mail appeals on the very subjects Democrats generally like to emphasize.

But forget deception and sincerity. There are indeed Republican candidates who have taken positions on what the article is pleased to call "traditionally Democratic issues" (how dare they!), and it is true that some have even taken positions on some of these issues that one associates with Democrats. The trouble with the article is not that what it says is false; the trouble is what it doesn't say.

There is not one mention of a single Democratic candidate in the country running on "traditionally Republican issues," such as support for the president's policy toward Iraq, opposition to rolling back tax cuts, or guns, nor are any Republicans mentioned who are frustrated that their Democratic opponents have "blurred the political landscape," in Eilperin's and Von Drehle's phrase, by feigning support for "their" issues.

They wouldn't have had to look hard to find some. For example, there is this description of Jean Carnahan (D, Mo), who rarely if ever encountered a gun control measure she opposed, blasting away at a skeet range:

But in an election year, and in the very week when a new poll showed the Democrat's support among men weakening, politics could be smelled along with the gunpowder.

Democratic governors from the South aligned themselves Monday with Georgia Sen. Zell Miller's call for Democrats to be more sympathetic and supportive of people who own guns....

Democrats have looked to Virginia Gov. Mark Warner's campaign as a model of how to defuse the gun issue. Members of "Sportsmen for Warner" stressed his support for hunting across rural Virginia. This month, Warner signed a law overturning a Virginia city's ban on concealed handguns in city buildings.

Luckily, readers of the WP don't have to look hard either. All they need do is cast their eyes below the fold on the same page where the Eilperin/Von Drehle article appears to find this in an article on South Dakota by T.R. Reid:

While Janklow [Republican candidate for House] is famously blunt -- he likes to remind voters that he changed the name of the state's "correctional facility" to "prison" -- Herseth [Democratic candidate for House] is constantly cautious, on guard against saying anything that might be construed as "liberal."

"That's not a term that is respected here," she notes.

When a voter at a veterans' hall lobbed an easy softball question at Herseth -- "Would you repeal those tax cuts for billionaires so we can steer the money to veterans?" -- she refused to take a swing. Rather, the candidate launched into a complex 14-minute response, noting that "I have to be careful when it comes to tax cuts." She supports abortion rights, but doesn't say that. Her standard response on the issue is "Like most people, I want to make it as rare as possible."

Writing in Slate, Chatterbox (Timothy Noah) acknowledges that "it's terribly old-fashioned to assess racial progress by numerical means," but admits that he "doesn't really see how else to do it."

His inability shows in the ensuing hand-wringing piece about what strikes him as lamentably low numbers of blacks in the freshmen classes at some Ivy League and similar schools. I would have no criticism if what he meant is that it's too bad more blacks don't qualify for admission to those schools, but that doesn't seem to be his point at all. This seems to be simply another lament at the absence of racial preferences, or possibly a suggestion that the low numbers in some schools (black enrollment is rising at other prestigious schools) results from lingering discrimination.

Trying for a zinger, Chatterbox then writes:

Affirmative action critics often complain when colleges accept a higher proportion of black applicants than of all applicants; it's taken as a sign that standards are being lowered. But why don't they complain now that Berkeley and UCLA, the two most prestigious universities in the University of California system, accept a lower proportion of black applicants than of all applicants?

Well, the affirmative action critics I've heard (myself included) believe that universities should judge people without regard to race.... [T]hey argue that the process should be race-neutral, even if that means that (for instance) WASPs or blacks are "underrepresented" relative to their share of the population and Asians or Jews are "overrepresented." That is the very essence of the anti-affirmative-action argument, and it seems to me that Chatterbox is not characterizing affirmative action opponents fairly.

As of Oct. 9, some 22 percent of TSA's screeners are African-American, a number twice that of the current civilian work force population. While 8 percent of the American work force is Hispanic, TSA's work force is already 11 percent Hispanic. Our numbers for hiring Native Americans reflect the labor force. Asian Americans/Pacific Islanders account for 4 percent of our screeners, compared with 2.8 percent of the civilian workforce. Although whites make up 77.9 percent of the workforce nationally, only 58 percent of TSA's work force is white.

Here is the lead paragraph of a page one story in the Washington Post today, "Republicans Planning for Full Control of Congress":

White House officials and Republicans on Capitol Hill are so optimistic about winning control of both chambers of Congress in next month's elections that they have begun mapping how they would use their new power, including the possibility of speeding up tax cuts that were to take effect gradually.

Evidence is presented that business groups are preparing wish lists. The White House is quoted saying that Republican control of the Senate would help it pass its proposals. "Republican officials" are referred to who are pleased -- "explaining their optimism," is how the article puts it -- at poll results showing voters don't blame Bush for economic problems. Other "Republican sources" said they are developing plans to have in place if they do take control.

None of this is surprising. Indeed, given the closeness of the parties currently it would be irresponsible not to have contingency plans for moving into majority status. But absolutely no evidence or support is given for the striking assertion that all this planning is taking place because Republicans "are so optimistic about winning control of both chambers of Congress in next month's elections." None.

Does the Washington Post have editors? If so, what do they do?

Finally, consider what get's reported as fact, and what is duly mentioned as an assertion:

As the administration prepares initiatives for the new Congress, White House economic adviser Lawrence B. Lindsey recently met unannounced with 15 chief executives of major corporations at a home in Manhattan to solicit their suggestions. A White House official said Lindsey has also met with consumer, labor and nonprofit groups.

No. Otherwise, the story might have been that Lindsey met with business, labor, consumer, and non-profit groups to solicit suggestions about legislative initiatives, especially since the Republicans might find themselves in majority in the next Congress. And what kind of story would that be?

If all you read were the New York Times, you'd think that the only support for protecting the right to own firearms comes from "the gun lobby." No actual people, aside from the robots who write letters at the command of the NRA, just the "gun lobby."

A good example is Katherine Q. Seelye's article in today's NYT, "THE GUN LOBBY: Killings May Not Affect Gun Control Measures." This article appears under a super-heading, "THE HUNT FOR A SNIPER: Interests and Law," suggesting (or more) that "interests" (guess who) and "law" are antagonists.

It is of course legitimate, even if a bit snide, to speak of "the gun lobby" when referring to the NRA. But when that phrase is used incessantly it drums in the notion that only "the gun lobby" has reservations about gun control measures. A typical example, from Seelye's article:

In Pennsylvania, Edward G. Rendell, the former Philadelphia mayor and now a Democratic candidate for governor, has not flinched in his opposition to the gun lobby and appears likely to win on Election Day.

If this seems overstated, consider the following results from a Nexis search of the New York Times for "gun lobby" and comparable phrases:

gun lobby                  545 hits

civil rights lobby          13

peace lobby                 12

gay rights lobby             8

feminist lobby               4

privacy lobby                2

UPDATE - I've just gotten around to reading "Shopping for Sniper Rifles," a remarkable OpEd also in today's NYT by Stacy Sullivan, who was so shocked to discover that foreigners can buy rifles here and ship them overseas that she is writing a book about it.

Since this piece did after all appear in the NYT, her take on this is predictable: "our gun laws not only inadvertently fuel foreign conflicts but also enable terrorists to purchase guns to launch attacks against people on American soil." (Indeed, Sullivan is so fond of the phrase "fueling foreign conflicts" that she uses it twice.)

If this piece had not appeared in the New York Times or some comparable source, it would not merit much attention or concern. Ms. Sullivan apparently went to her first gun show as part of her research. She was not surprised to see sports utility vehicles with "Sportsmen for Bush" bumper stickers lining the parking lot, but she does profess surprise at seeing "a surprising number of families with children." Presumably she expected only single skinheads. She also reports as though it were true "what a dealer told me": that "with the .50 caliber rifle ... a good marksman can kill a large animal from two miles away and an amateur could probably shoot a person from a mile away." (At least she was not as gullible, or disingenuous, as Tom Diaz of the Violence Policy Center, who testified before Congress that "an expertly trained marksman could use the rifle to hit targets at distances of 7,500 yards." By way of comparison, Chuck Mawhinney, one of the most successful Marine snipers in Vietnam, "was routinely deadly from 300 to 800 yards [but] had confirmed kills at more than 1,000 yards." No mention of a mile, much less two or four miles.)

But it did appear in the NYT and so must be taken seriously, especially given its implication that Americans should surrender whatever rights they have to buy rifles in order to deprive terrorists or their supporters of the ability "to fuel" their goals. But why only guns? There is a wealth of information on the Internet that could be of enormous benefit to foreign or domestic snipers -- try Googling "sniper" and look at what you get. Why not shut that down too? If access to the Internet were controlled here the way it is in China, it would be much more difficult if not impossible for terrorists to take advantage of it.

How interesting that the New York Times is lending its platform, and megaphone, to the curtailment of civil liberties and civil rights in order to fight the war against terrorism.

The ever-vigilant, and increasingly indispensable, Howard Bashman links to a Second Circuit case, Patrolmen's Benevolent Association v. The City of New York, that casts a strange but revealing light on the often unintended (even if predictable) consequences of "taking race into account."

Plaintiffs, all of whom are black or black-Hispanic, sued the City for transferring them into New York City’s 70th Precinct on the basis of their race in the wake of the beating and torture of Abner Louima, a black man, by police officers in the 70th Precinct in August 1997. They asserted violations of Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law, and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

At the trial, defendants contended that the transfers, admittedly race-based, were necessary to prevent a delicate situation from getting out of control. [Police] Commissioner Safir stated that there was a “great potential for violence” in the 70th Precinct following the Louima incident and “we needed to act quickly and as quickly as possible to put people in the community who would have a stake in the community.” (A. 468.) Safir testified that at the meeting [with community activists and city councilperson] held at police headquarters several days after the incident ..., “one of the themes that continually came out . . . was the theme that they needed more African-American officers . . . and that if we wanted better police community relations then we needed to assign more African- American police officers to their community.” (A. 475.)

This case is reminiscent of one I referred to -- actually, I quoted Rep. Charles Canady (R, Fl) referring to -- in this post several days ago. Here's what he said, again:

There are some people that contend that you have to take race into account in undercover police work. The theory is that you need black people to serve as undercover agents, and that's the only effective way that can be carried out. Well, you know, it's very interesting that the Drug Enforcement Administration actually had a policy of doing that. And the black drug enforcement agent sued the Drug Enforcement Agency over that very policy because it was discriminating against them. It was putting them in contexts where they were at greater risk, and it was limiting their opportunities for advancement. So what may start out as making some sense from one perspective can end up harming the very people that supposedly will benefit.

And then there's the equally elusive, slippery concept of "diversity," which is usually employed to justify racially conscious hiring and admissions decisions. In this case, however, it was the black officers who claimed that their civil right to race-blind assignment had been violated; they rejected the racial identity assumptions on which diversity arguments rest.

Plaintiffs’ expert Dr. Stephen Leinin, a sociologist and former New York City police officer, testified that black officers were not necessarily better at policing black communities than white officers, and that cultural similarities – such as language skills – were more important than race.

Anyone interested in this blog's concern with discrimination and civil rights will want to march right over to amazon.com, or your neighborhood book store, and pick up a copy Carol Swain's new book, The New White Nationalism in America (Cambridge Univ. Press).

The book is fascinating, and very well done, but even if it weren't her biography is compelling enough to command interest. This summary is from the intro to an interview that recently ran in The Washington Times:

Born in 1954 in Bedford County, Va., Ms. Swain was one of 12 children. She dropped out of school in eighth grade and married at 16. She later earned her GED and received a Ph.D from the University of North Carolina in 1989. She became a professor at Princeton University in 1990 and gained tenure in 1994. In 2000, she joined the faculty of Vanderbilt Law School.

If you haven't found them yet, go check out The Bitch Girls. And I would urge you to visit them even if I weren't so flattered by their placing DISCRIMINATIONS in very select linking company. Really.

My wife Helene and I have brought daughter (and my co-blogger) Jessie up to Beantown for a few days to visit friends and to nose around Harvard exploring the possibility of a summer internship in physics. You thought she was at Bryn Mawr? You obviously don't know about "Fall Break." That's a relatively new week-long (9 days counting the bracketing weekends) vacation -- the more expensive the college, the less time you actually have to spend there. As far as I can tell, this new vacation was instituted to relieve the stress induced by the recently completed moving in and unpacking for the fall term.

Anyway, here we are, and our visit has led to some interesting observations. First, I have a new fail-safe solution to the Iraq problem. Forget bombing; forget invading. Simply export several hundred Boston "drivers" to Baghdad; given the mayhem that would surely ensue, no regime could long survive their presence.

Next, the NYTN (New York Times North), sometimes known as the Boston Globe, has a wonderful OpEd today by one Derrick Z. Jackson on the NRA and the Washington sniper. Wonderful, in the sense that's it's hard to find so much bull*** (or perhaps it's bean****) in one place. Go look at it. A couple of my favorite snippets:

For all the whipping up of fear, Americans do absolutely nothing with it as far as it regards guns.

In other countries, such as Britain and Australia, massacres led to near instantaneous and monumental changes in gun laws. [No mention of the effect of those laws.]...

Individual murders by men of wives and girlfriends come and go without much reflection and certainly without 24-seven CNN coverage. Male politicians have not leapt to make domestic violence a lighting rod for gun control, even after a 1990s study in The New England Journal of Medicine found that home gun ownership dramatically increases a woman's chance of dying from a bullet....

The National Rifle Association, our shadow government, the sniper laying waste to our sanity, hopped back in its van, looking for politicians to scare and issues to gun down.

No political group was happier when George W. Bush was appointed president by the Supreme Court in 2000 than the NRA.

UPDATE - I've now, of necessity, spent some more time with the Boston Globe, and I've decided that, with regard to partisanship in its news stories, it's what its corporate owner, the New York Times, would be if it really let itself go.

The big "news" today, dominating the City & Region section that contains local political developments, were TWO front page (of the section) articles by Globe reporter, Stephanie Ebbert, ostensibly analyzing but in fact condemning Mitt Romney's (the Republican candidate for governor) gift of a million dollars to the business school named after his father at his alma mater, Brigham Young University. The question, insofar as there was one, is the degree to which Romney should be tarred by BYU's anti-gay policies.

The first one begins:

Mitt Romney declined yesterday to reconcile his financial support of Brigham Young University, which bans homosexual conduct, with his opposition to discrimination against gays and lesbians, saying it was inappropriate to raise religious issues in a political campaign.

Criticized this week for contributing $1 million to a university that has antigay regulations, Mitt Romney explained that he was not a member of the board of Brigham Young University and thus not in a position to advocate a change in university policy.

But Romney served on the boards of two companies and one organization - the Boy Scouts - without advancing the gay inclusion that he supports on the campaign trail. The Boy Scout board has maintained a policy of excluding gay men as Scout leaders, even as a US Supreme Court case sparked a national debate in 2000.

After quoting a Scout official defending its policy, the Globe reporter devotes two paragraphs to quoting a gay activist's disagreement with it, and with Romney.

But Mary Breslauer, a gay political activist working with Democratic nominee Shannon O'Brien, charged that he was "complicit" in the policy, at a time when other board members took stands. She noted that filmmaker Steven Spielberg resigned from the Boy Scouts' board based on its policy of exclusion and was recently honored by the Human Rights Campaign for his stance.

"Other people have chosen different routes because they understood that discriminating against gay scouts was wrong, that it hurts young people, and that it hurts councils in Massachusetts," she said. "Romney can't have it both ways. He can't say he didn't do anything at BYU because he didn't sit on a board and then sit on a board and do nothing. It's insulting."

The only place in today's paper I could find that balanced approach was in a column by Brian McGrory.

Imagine that! Partisanship in news columns. Haven't we seen that somewhere before?

Geitner Simmons has an interesting post on the propriety of flying -- or banning, which he prefers -- the Confederate flag. The Insecure Egotist has an equally interesting reply.

I am sympathetic to Simmons's desire to have the state avoid antagonizing substantial numbers of its citizens by, as it were, waving an offensive red flag in their face. The flag, in short, should not be flown by public authorities in public places.

Still, I'm troubled by Geitner's statement that "State governments would be wise, and fully entitled, to ban such displays." Choosing not to fly an offensive flag is one thing -- states, after all, can't fly every flag; they have to choose. But banning offensive displays is another matter. This may be purely semantic, but semantics can be important.

I am also troubled by the legal argument that the Justice Dept. made in defense of the Veteran's Administration's refusal to fly the flag: "There can be no doubt that display of the Confederate battle flag would be perceived as the government's endorsement of that flag."

If that is the government's position, it should proceed to raze all Confederate symbols and monuments in national parks or other federally managed lands. Gettysburg, for example, should have Union monuments but no Confederate monuments. U.S. Highway 1 south of Washington, D.C., should no longer be called "Jefferson Davis Highway," or U.S. 50 Mosby Highway. What about federal funds going to museums that display Confederate symbols?

State governments shouldn't fly Confederate flags, but neither should we support arguments for lowering them that may do far more damage than their display.

UPDATE - The United Daughters of the Confederacy is suing Vanderbilt University to prevent it from removing the word "Confederate" that is inscribed in stone on a building to which the UDC heavily contributed ($50,000 of the $150,000 construction costs in 1935). The UDC says its contribution was to help erect a monument and memorial to Confederate soldiers, and its suit claims a breach of contract.

"There's a movement at Vanderbilt to really focus on diversity and multiculturalism," Carolyn Kent, a former United Daughters' Tennessee president, said last month. "But in that mix, there seems to be no room for anyone of Confederate descent."

UPDATE to UPDATE - Erin O'Connor continues the discussion of Vanderbilt's attempted defacement, complete with quotes from a Vanderbilt faculty member who thinks all Confederate veterans should have been hung and all Confederate sympathizers the equivalent of holocaust revisionists. I'm not quite sure I myself qualify as a Confederate sympathizer, but I'm probably close enough to note the irony in my being called a holocaust denier.

Several days ago I posted a short notice of an excellent article by Roger Clegg on a pending Supreme Court case dealing with disparate impact. Today a party to the case added an interesting comment to that post. Where else could this happen but the blogosphere?

UPDATE - And now Roger Clegg has posted a comment to the comment. Click on the "Say what?" link at the bottom of the post linked above, and scroll down.

UPDATE - Mark Kleiman has an interesting rejoinder here. Responding to my argument that the liberal inconsistency on racial profiling -- applauding when it is done by employers or admissions officers; condemning when done by police or airline security guards -- "is not so surprising for a movement whose intellectuals tend to reject principles on principle," Kleiman argues that I make "a fundamental mistake, confusing political liberalism with intellectual post-modernism."

First, I don't. My observations was of "a movement whose intellectuals" reject principle on principle. Surely Kleiman doesn't deny that post-modernism and its relativistic relatives cut a wide swath through the liberal intelligentsia these days. I also believe that it is very difficult to argue, as he appears to, that political liberalism is isolated from and impervious to the main currents of academic and cultural liberalism. (Of course, recalling one prominent liberal politician, I suppose that depends on what the meaning of "is" is.) In any event "political liberalism" comprises much more than merely politicians, including as well academics, judges, commentators, interest groups, etc.

Kleiman's main concern, in the post to which his comments on my post are an Update, is to argue that liberals are committed to the principle of free speech and conservatives aren't. Thus liberals are much more likely to defend speech with which they disagree, and when they don't they can properly be called hypocrites. But according to Kleiman, "No one charges a conservative who wants to suppress free expression with hypocrisy; the charge wouldn't make any sense" -- not believing in free expression, conservatives aren't hypocritical when they suppress it.

I think this is mistaken, both historically and currently. In the McCarthy period, for example, critics of McCarthyism were as likely to be found among conservatives as liberals, especially if the definition of McCarthyism includes, as it should, the loyalty program implemented under President Truman. "Cold war liberals" did not come out of this period with hands any cleaner than the conservatives'.

But that's history. Today, attacks on free expression seem to come from the left much more often than the right, especially on campus. Intolerance for "hate speech," and support for speech codes, is thus typical of today's liberals, not the exception. It is liberal legal scholars such as Catherine MacKinnon and Cass Sunstein and Owen Fiss who are developing the theoretical justifications for limiting the reach of the First Amendment, just as it is liberal politicians who led the movement to restrict political speech (sometimes known as campaign finance reform). On the Supreme Court, as Eugene Volokh has shown (I don't have the cites handy), the conservative justices are the most consistent defenders of First Amendment values, and liberals the least.

I certainly don't believe conservatives have a monopoly on virtue, just as I don't believe all liberals are un-principled post-modernists. I do believe, however, that politics generally floats on intellectual currents, and that increasingly liberals -- swept along as they are by a relativism-based multiculturalism and, yes, post-modernism -- find that they are swimming upstream when they try to defend favored policies with arguments based on principle.

Eugene Volokh has a characteristically interesting post, on racial profiling, taking issue with an OpinionJournal criticism of the judge in lawsuit filed by an Arab-American passenger removed from a United Airlines flight "because the crew wasn't comfortable with him aboard."

Eugene points out that "the proper role of racial profiling in fighting terrorism is an interesting an difficult one," but that in any event criticism of the judge is not called for. The problem, insofar as there is one, is with the applicable statute, 49 U.S.C. § 40127(a), which provides that an “air carrier . . . may not subject a person in air transportation to discrimination on the basis of race, color, national origin, religion, sex, or ancestry.” The statute does not, Eugene notes, have exceptions for emergencies or post 9/11 concerns about Arab-appearing passengers. In short, the text -- until and unless it is liberally construed -- is clear.

I think the problems raised by racial profiling are indeed difficult, and that we haven't dealt very well with them. Like many others, I've been struck by the inconsistency of liberals who oppose racial profiling when done by police but applaud it when done by admissions officers or employers. This is not so surprising for a movement whose intellectuals tend to reject principles on principle, but in my view conservatives haven't been much more coherent. Most conservatives these days are committed to color-blindness -- not just in practice but in principle -- and yet most also believe it is foolish not to subject Arabs/Muslims to added scrutiny in boarding airlines, etc. This inconsistency deserves more careful attention than it has received.

My very first post on this blog dealt, at least in passing, with racial profiling. In fact, one of the issues that compelled me to start the blog (other than daughter Jessie's insistence) was dissatisfaction with a discussion of profiling by Mickey Kaus on kausfiles, and frustration that my email to him pointing out the error of his ways had been ignored. I intended to begin the blog with that issue, but got sidetracked by more current (by a week or so) concerns and never got back to it. Now I can. (All frustrated letter writers should start their own blog!)

Kaus wrote in his kausfiles of 6/12/2002 (I don't know how to find/link his archived material, if indeed it is archived) that "even anti-liberals" opposed profiling, as if this were somehow unexpected, and he cited a comment by President Clinton in his well-known 1997 White House meeting with critics of affirmative action implying that conservatives were inconsistent on the matter. Here is my email to him of the same day:

Your comments about "even" the neo-cons etc. opposing racial profiling is thoughtful and "even"-handed, as usual, but wrong. You write that "if even anti-liberals were adamantly opposing profiling, it's unfair to blame that opposition on liberals." That is true as far as it goes, but your "even" implies there is something out of character or unexpected about "anti-liberal" opposition to racial profiling, an implication you repeat two sentences later when you explain the FBI's behavior by noting that "Nobody was going to come forward, even from the right, to defend them if they got caught in a flight-school profiling scandal."

Both the neo- and the paleo- cons are perfectly consistent in their principled opposition to racial profiling, wherever it occurs. It is, and for a generation now has been, the liberals who are inconsistent and even incoherent on the subject. When liberals approve of benefits or burdens being bestowed on the basis of race, they call it affirmative action. When they disapprove, they call it racial profiling.

Sometimes they confuse even themselves and call them both affirmative action. Thus, in his White House meeting with affirmative action critics that you cite, President Clinton actually described racial profiling by police as "a race-based public policy." In fact, in the very paragraph you quote, you substitute ellipses for Clinton's most telling comment, given below in bold:

CLINTON -- [O]ver half of the cocaine in the country comes across the Mexican border. So, all right, fast forward. What do you do if you're a local police officer with a drug problem? That's what this whole profiling is about -- [inaudible] people who are Hispanic if they're driving through town. That's an affirmative action program. That's a race-based affirmative action program. [White House meeting was 12/19/97. Transcript was at www.whitehouse.gov, but I don't know where it is, if anywhere, now.]

Perhaps 9/11 should force conservatives to compromise their principled opposition to all racial profiling, but at least they have a principle to compromise. That's more than can be said for the liberals who oppose "race-based affirmative action" when done by the police but support it when done by admissions officers and employers.

It also strikes me that one can distinguish singling out a category of people for special scrutiny from judging people by different standards. I don't know if anyone is saying that Arab males shouldn't be allowed on planes--only that they be given a closer examination than other folks. The standard for denying them the right to fly ought to be the same one we use for anyone. Isn't this different from saying that an LSAT of 160 and a GPA is good enough for admission to UVA Law School if you're black but that others need much better credentials?

In one sense this approach assimilates the profiling debate into the debate over disparate impact--applying a general standard of potential dangerousness to all travelers would leave little old ladies "underrepresented" and Arab males "overrepresented" in the pool of targets.

Still, I'm not sure this resolves our dilemma completely, at least not insofar as our general (?) standard of dangerousness contains religion/ethnicity as one of its components (as it must, it seems to me, to be realistic).

The nub of the issue, as usual, is whether/when it is legitimate for the state to be conscious or take account of race. One could say, as you suggest, that doing so is only proscribed when it leads to discrimination, and that added scrutiny of passengers involves no discrimination. This line may become quite fine, however, when applied to police surveillance, infiltration, etc.

Or one could apply an updated version of the old "bona fide occupational qualification" (bfoq) exception to Title VII -- just as almost everyone would regard it as legitimate to take race into account in deciding which police officer to place undercover in a black gang, it's hard to see how you can protect against young, male, Arab/Muslim terrorists without looking carefully at young, male Arab/Muslims, infiltrating Mosques, etc.

I think this is about where I am at present, but it does make me a bit uncomfortable because, by personality or temperament or ideology, I like firm principles, bright lines, clear rules, etc., and this is a breach in the dike of principle. In effect it allows that we CAN take race and religion into account if the reason is good enough. It leaves us with something like the high scrutiny (which I always thought was rather dumb)/compelling state interest/no alternative method standard that courts have articlulated before in this area. Since preferentialists have had some success making those very arguments with regard to preferential admission, I've always thought that "standard" too low, or porous, or something. But now I'm not sure we can do much better.

We seem to be balancing precariously on a point surrounded in every direction by slippery slopes. In this regard, in preparing for my letter to Mickey Kaus I re-read the transcript of [the affirmative action critics'] meeting with Clinton that he cited, and I was struck by some comments of Rep. Canady that call into serious question what I just said above:

MR. CANADY: Let me give you another example that's directly related to the sort of thing you're talking about. There are some people that contend that you have to take race into account in undercover police work. The theory is that you need black people to serve as undercover agents, and that's the only effective way that can be carried out. Well, you know, it's very interesting that the Drug Enforcement Administration actually had a policy of doing that. And the black drug enforcement agent sued the Drug Enforcement Agency over that very policy because it was discriminating against them. It was putting them in contexts where they were at greater risk, and it was limiting their opportunities for advancement. So what may start out as making some sense from one perspective can end up harming the very people that supposedly will benefit.

Of course, placing black agents in black gangs was not a policy designed to help the black agents but to penetrate the gangs, and I think is presumptively justified. Still, once this is accepted it's harder to resist the Glenn Loury arguments about the necessity of black prison guards, the Gore arguments for black police that he made in the meeting, and even the legion of deans who argue that the fate of the republic rests on having a "critical mass" of minority lawyers.

I hate to leave this issue unresolved to my own satisfaction, but this is as far as I can take it at the moment.

Mr. Bush wants to rally the nation to impose gun control on Baghdad, but he won't lift a finger to impose gun control on Bethesda, six miles from the White House.

Personally, I'm glad Mr. Bush is focused on disarming Iraq's madman and tracing Iraq's Scud missiles and weapons of mass destruction. It's a worthy project. I just wish he were equally focused on disarming America's madmen, and supporting laws that would make it easier to trace their .223-caliber bullets and their weapons of individual destruction. A lot of us would like to see more weapons inspectors on the streets here, and in the gun shops here, not just in Baghdad.

If he is like many gun control advocates, Mr. Friedman probably doesn't care very much about these particulars. The alleviation of his insecurity does not require the implementation of policies that actually might reduce the threat from madmen sharpshooters -- such policies are unknown, and perhaps even unknowable because they probably don't exist. No, what he craves is something politicians are adept at delivering: a demand for tougher laws (whatever they are), denunciations of the gun lobby -- in short, some "I-feel-your-pain" pronouncements that would reduce his "sense that this administration is so obsessed with Saddam it has lost touch with the real anxieties of many Americans."

He's not likely to get that cheap and easy reassurance from the president. But not to worry: there are candidates on the state and local level who are more than willing to provide it to him. They will probably make him feel better. But neither their rhetoric nor their policy proposals, even if passed, will do anything whatsoever for the pizza deliveryman he describes, who has "to drive around here at night, standing on people's doorsteps with [his] back to the street...."

In his column today George Will quoted speaker-in-waiting Richard Gephardt calling an ad by South Dakota Republican Senate candidate John Thune "immoral" because it implied his opponent, Tim Johnson, is "unpatriotic" because he voted against missile defense systems 29 times.

Will pointed out that the ad doesn't do that. "It questions Johnson's judgment, not his patriotism." But Gephardt's reflexive, hair-trigger resort to accusations of immorality is more than indicative of the vitriolic partisanship that now pervades public life. As Democratic leader in the House, as wannabe Speaker, and as someone who sees an appealing future president when he peers into his mirror, Gephardt actually has more than a little responsibility for setting the moral tone in Washington, certainly more than your everyday run-of-the-mill politician.

Insofar as one can judge what Gephardt believes by what he says, he actually believes Republicans are immoral, and has for a long time. Some examples:

Still, Gephardt has harsh words for Republicans, saying: "To pull that kind of issue into a political campaign is in my opinion immoral." (Wash. Post, 9/26/02, alleging Bush was politicizing Iraq)

Mr. Gephardt has a few stock lines in his stump speech. He uses the word "immoral" to describe Republicans' cuts in education and what he describes as their threats to Medicare and pensions. (NY Times, 11/2/96)

"Republicans, Democrats, independents know it is immoral to take food from the mouths of our children to pay for a tax cut for the privileged few in this country," Gephardt said, referring to a Republican tax-cut plan. (Wash. Post, 3/20/95)

"The Social Security fund is building a huge surplus. And it would be wrong and immoral to cut it to compensate for mistakes in other areas of the budget, such as defense spending," Gephardt said. (Wash. Post, 11/20/87)

Gephardt, 61, made no apology yesterday for breaking with anti-war liberals in his party, saying it would be "immoral" to calculate the political implications of his decision. (Wash. Post, 10/3/02).

Back in the bad old days in Alabama George Wallace spoke sneeringly, but effectively, of "the block vote," which was a transparent euphemism for black votes. One of the saddest ironies of the dramatic progress since then is that now -- not just in Alabama but across the nation -- blacks really do vote as a block, regularly delivering 90% and more of their votes to Democrats.

An interesting article in today's Washington Post by veteran reporter David Broder reveals, through a detailed look at South Carolina, just how completely the predictability of "the block vote" (my phrase, not Broder's) has eliminated the need for either party to campaign for black votes. Both Republicans and Democrats agree that their success depends entirely on their ability to attract a certain percentage, which they also agree on, of the white vote, as evidenced by the following comments from a hotly contested state legislative district:

"I need 78 percent of the white vote to win," said Owens [the Republican].

"I need just more than 20 percent of the white vote," said Bailey [the Democrat].
How sad.

Finally, something nice to say about the New York Times! Margaret Talbot has a terrific article in the NYT Magazine today about how the proliferation of same-sex complaints (especially ones not involving homosexuality) has revealed the incoherence of sexual harassment law.

If these problems have been in evidence for some time now, though, the increase in male-on-male sexual-harassment cases makes them much starker. It underscores the intellectual incoherency of the whole doctrine. It raises the awkward problem of the equal-opportunity harasser. It wreaks havoc with the notion, so central to sexual-harassment law till now, that sexual expression in the workplace hurts women more than men. It casts into bold relief the absence of sexual orientation from Title VII's list of protected characteristics....

More broadly, the whole paradigm of sexual harassment, and in particular its anchoring in discrimination law, is due for reconsideration.

Roger Clegg has an insightful article (as usual) on law.com about Cuyahoga Falls v. Buckeye Community Hope Foundation, an insufficiently heralded case that is scheduled for U.S. Supreme Court argument this term. (Link via Howard Bashman.) As Clegg points out,

one of the issues for which the Court granted cert is extremely important: Whether the federal Fair Housing Act's ban on racial discrimination can be violated by someone who does not engage in racial discrimination.

I don't really disagree with the New York Times editorial today on Eldred v. Ashcroft. I do, however, find it amusing (and since the NYT is perhaps our leading print medium, somewhat ironic) that its position on the power of legal text to constrain and control behavior seems to be determined more by its preferred outcome than by any principled approach to interpretation.

Today the NYT editors, adopting a sage and profound pose, seemed to say that interpretation was difficult but possible, and courts were up to the task.

It is always difficult for a court to determine the precise meaning of broad constitutional phrases like "limited times" or "cruel and unusual punishment," or "a speedy trial." But at some point the Constitution's words are violated. The court should hold that the latest extension goes too far.

News stories in the the New York Times continue to reflect its own insularity, or filtered perspective. Today, for example, in "Texas Democrats Pin Hopes on a Big Spender," reporter Jim Yardley writes:

The dynamics of the raceseem [sic] turned upside down. It is the Democrat, Mr. Sanchez, who is running a big-spending campaign as an outsider and a businessman, criticizing Mr. Perry as a "career politician" beholden to lobbyists and industry. It is the Republican, Mr. Perry, who boasts of long experience as an elected official.

The only thing "upside down" about the Democratic Party relying on rich fat cats financing their first forays into politics is the world view of the New York Times.

The Washington Post ran an article by Thomas Edsall today suggesting that the concentration on Iraq is hurting the Dems in ways beyond, and deeper than, simply driving their issues into the background. It is doing that, but it is

also damaging two crucial campaign operations -- fundraising and voter turnout -- among key liberal constituencies disillusioned over the party's failure to challenge President Bush more forcefully on his bellicose posture toward Baghdad.

One Democratic strategist familiar with the situation said, "Democratic donors want the leadership to fight harder on Iraq. Instead, people see Democrats are not raising questions."...

"The Democratic donor base is inclined to oppose the president's actions in Iraq, and if the party is not doing that, it causes some problems."

According to an article in Roll Call today, the Dem straits have become so dire that their chances depend on the members dipping more deeply into their own pockets. One did, in a big way.

Democratic Congressional Campaign Committee Chairwoman Nita Lowey (D-N.Y.) cut a $500,000 check to the DCCC Wednesday and implored Members to do likewise, telling them that victory was in jeopardy unless they responded with a major infusion of cash in the next few weeks....

"This was meltdown 101," [one] participant said, while speculating that Members in the room may have heard the first cries from a sinking ship. "This was the Democrats' attempt to take back the House beginning to unravel."

With many of the Dem fat cats staying away from party coffers in droves, the Dem members may have no one left to turn to but themselves. As Roll Call reported,

One top leadership aide put it bluntly: "It's in the Members' hands. If they want to be in the majority, they've got to give money. If they don't, we won't get there."

[BlogTrail: The following comes from The OmbudsGod, who got it from ABCwatch, who got it from The Australian, from which the following is taken.] Feminists (and others) should think twice before embracing multiculturalism and its cousin, moral relativism.

A NORTHERN Territory Supreme Court judge has reluctantly sentenced a 50-year-old tribal Aboriginal man to 24 hours in prison for having unlawful intercourse with his promised 15-year-old wife, saying the matter should never have come to court.

Justice John Gallop said Jackie Pascoe Jamilmira was exercising his conjugal rights in traditional society and the girl "knew what was expected of her"....

When asked why he had sex with a 15-year-old, Pascoe told police: "She is my promised wife. I have rights to touch her body." Asked if he knew he had committed an offence, he said: "Yes, I know. It's called carnal knowledge, but its Aboriginal custom – my culture." ....

In March, Pascoe appeared before magistrate Vince Luppino, who sentenced him to 13 months' jail on the sex count and two months for firearm offences....

There was an immediate appeal and Pascoe was bailed.

North Australian Aboriginal Legal Aid principal lawyer Gerard Bryant yesterday argued that Mr Luppino had treated the trial as a rape case and failed to give weight to the fact that such marriages were common and morally correct under Aboriginal law....

The judge read a submission by anthropologist Geoffrey Bagshaw, who said age was not a factor in determining when a family sent a girl to a promised husband – what mattered was that they'd had their first period. Mr Bagshaw said that sexual relations between a promised wife under the age of 16 was "not considered aberrant in (Arnhem Land) society".

Mr Bryant said there was a clear clash of cultures and that Pascoe was humiliated at having to explain his tribal rights to the white law...

"She didn't need protection (from white law)," said the judge. "She knew what was expected of her. It's very surprising to me (Pascoe) was charged at all."

According to the Wall Street Journal today,

[Sen. Pat Leahy, D-Vt, Chairman of the Senate Judiciary Committee] pulled a fast one on both Senate rules and courtesy by reneging on his multiple promises to give Judge Shedd a committee vote this fall. In the process he took a special slap at retiring Senator Strom Thurmond. A fellow South Carolinian, Mr. Shedd used to work for Mr. Thurmond when he was chairman of Judiciary. Mr. Leahy had assured the Senator as recently as last week that Judge Shedd would get a vote. He'd made similar promises to Senators Hatch, Grassley and Brownback, among others.

Apparently Mr. Leahy counts his promises as less important than winning an election by whatever means.

As the Washington Post reported,

Retiring Sen. Strom Thurmond of South Carolina, two months shy of his 100th birthday, denounced Senate Democrats yesterday for not using his last appearance before the Judiciary Committee to consider a former aide's nomination to the Richmond-based U.S. Circuit Court of Appeals for the 4th Circuit.

"I took you at your word," Thurmond told Senate Judiciary Chairman Patrick J. Leahy (D-Vt.), who Republican senators said had promised that U.S. District Judge Dennis Shedd, a former Thurmond aide and former Judiciary Committee counsel, would get a vote in the committee. "In 40 years in the Senate, I have never been treated in such a manner."

Leahy delayed the vote on Shedd, saying it was too contentious to get done quickly.

UPDATE - Byron York has an interesting article on NRO emphasizing the personal promise-breaking. In addition, Republicans charge that Leahy's refusal to vote on Shedd actually violated committee rules.

"I am struck by the irony," Hatch said at the meeting, "that several members of this committee who support the rule-breaking removal of the Shedd nomination talk a good game about the importance of judges following the law and not ignoring it when it would suit them to do so. Today we learn that such talk is just talk."

Mark Kleiman is still agitated by Forrester/Republican hypocrisy. Eugene Volokh, who is still not sure, provides a link to the opinion of the NJ Supremes.

Perhaps Eugene or other wise (not otherwise) lawbloggers will wring some additional information or insight out of this opinion, but I didn't see anything new of interest or significance. The Joisey Judges purported to find an "absence of explicit direction from the Legislature" because "the statute simply does not contain a legislative declaration that the filling of a vacancy within forty-eight days of the election is prohibited." ("True, the posted speed limit was 55, your Honor, but all that means is that you are immune from speeding tickets if you drive 55 or less. The Legislature didn't positively say you couldn't drive over 55....") This tortured interpretation was made possible by the now familiar conclusion that "election laws are to be liberally construed."

So far the blogosphere debate over this matter has divided into two camps: those who believe that statutory deadlines are deadlines, and those who believe that deadlines should be liberally construed. Deadlines mean what they say, or they don't. Legislatures rule, or judges do. By now it will come as no surprise to DISCRIMINATIONS readers that my preferences run toward principles, rules, bright lines, plain text. But putting those preferences aside for a moment, let me propose a middle course, a third way, one that has the benefit of more closely tracking how most debates like this are actually decided.

In doing so I will of course have to join the liberal construers in putting aside the actual words of the statute, but in this case I want to concentrate on different words -- not the 51 day "deadline" (my quotes; I simply couldn't resist), but "howsoever caused":

In the event of a vacancy, howsoever caused, among candidates nominated at primaries, which vacancy shall occur not later than the 51st day before the general election, ....

But that's not what we had in Joisey. There, Torcho resigned simply because he was going to lose. Democratic primary voters gambled that they could win with an ethically challenged candidate, but when it became clear they were wrong party leaders decided they wanted a fresh (well, a different) face. If substitution is allowed in that circumstance, it's hard to imagine any circumstance where it wouldn't be allowed.

Even accepting the general approach of the liberal construers, I submit, this is not construing a statute. It is destroying it.

Lloyd Grove of the Washington Post interviewed well-known political philosopher (and occasional movie star) Susan Sarandon, who is helping promote an Alliance for Justice film about repression in America because, she says, "I'm frightened, I'm scared, I'm terrified most of all that the America that I love and cherish, that this democracy is at risk. The world is against this idea of a unilateral attack," she continued, "yet we don't hear anybody criticize it."

With the possible exception of Sarandon, who approvingly quoted to us from a European newspaper editorial accusing President Bush and his cohort of trying to execute "a blueprint for American global domination." When we inadvertently giggled, she scolded, "I don't see what's so funny about that."

DISCRIMINATIONS has just been listed among the Daypop Top 40. I'm not sure exactly what that means, but it sounds good....

After criticizing Democratic arguments as so much hot air (my characterization, not his), Kaimi Wenger concludes that

fuzzy logic of its decision aside, the New Jersey Supreme Court got the outcome right. Lautenberg should replace the burned-out Torch on the ballot.

...It is an accepted maxim of statutory interpretation that where a statute will give an absurd result, it may be appropriate to construe the statute so as to give a reasonable result. Hart and Sacks have famously written that laws ought to be interpreted as if written by "reasonable persons pursuing reasonable purposes reasonably."

The Democrats have finally come up with a defense of their (and the New Jersey Supreme Court's) mind-boggling, rule bending discovery that statutory deadlines are not, well, deadlines. Eugene Volokh provides links to the relevant postings and a nice summary of the argument, and thus I will repeat neither here.

Briefly, on Saturday the New York Times published an article arguing that candidate Forrester missed the same statutory deadline to have his position on the ballot changed that the Democrats missed in replacing Torricelli's name, and that his lawyers made the same arguments then that the Democrats are making now.

Josh Marshall calls the Republicans "ridiculous hypocrites." Blogger Mark Kleiman is especially incensed at what he sees as Republican hypocrisy, duplicity, etc., and says everyone else has been "sandbagged" and "snookered" by the Republicans claiming to be "shocked -- shocked!" at misbehavior they engaged in themselves, and he throws down the gauntlet:

So the right blogosphere may now be assumed to be aware of the new development. Now we get to see how many right-bloggers pass this news along to their readers, and what if any comments they have on having been snookered.

Having said (and believing) all that, I don't think it is hypocritical or otherwise out of order to point out that the defense raised by Marshall, Kleiman, and others is not really a defense at all. It's a "So's your old man!" argument that the Republicans, "ridiculous hypocrites" that they are, are just like the Democrats. It's the Nixonian/Clintonian defense ("They all do it"). And, by the way, legally irrelevant.

There is a principled argument available to the Democrats here. They could actually mean their states rights argument that the federal courts have no business second guessing state supreme courts on the meaning of state laws, even where federal Constitutional rights are implicated (such as the Article 1, Section 4, grant of authority to state legislatures, not courts, to set the rules, not the administrative advice, for federal elections). I know neither Mark Kleiman nor Josh Marshall. (Kleiman is a friend of Eugene Volokh's, and that's enough to convince me that, whatever his politics, he's a good fellow.) Perhaps they both adhere to this principled position. Or some other one. But if so, I doubt they would be joined by many on the left if their principles led them in the future to adopt a position that was partisanly incorrect.

It will be replied, with some accuracy, that Republicans and conservatives have also proved themselves willing to shed principles when it is convenient. Unfortunate, but true. There is, however, still a difference: increasingly, liberals don't believe in principle in principles, clear rules expessed in plain text. Republicans and conservatives for the most part do. Because they believe in principles and rules, they are even more hypocritical than Democrats when they abandon them, but for the same reason I believe they are at least somewhat less likely to do so. I believe that, not simply partisanship, is the real significance of the findings in an article in yesterday's Washington Post, "Other Than Republicans, Few in N.J. Feel Outraged. As for 'Switcheroo,' Voters Cite Scandals in Both Parties."

ADDENDUM (10/7/2002 01:40pm) - I've been thinking a bit more on this, and I'd like to add a couple of things. It seems to me that my argument concerning Republican-Democratic differences over principles and rules is subject to two criticisms.

First, I could be simply flat wrong. That is, one could maintain that there is no difference at all, that both parties scrap principle and ignore rules with equal alacrity when it's in their interest. Although I think that on balance there is a difference, reasonable people could certainly disagree. The Republicans engaged in world-class hypocrisy, for example, when they went in cahoots with the NAACP to create "majority-minority" districts, i.e., racial gerrymandering, because they stood to benefit, and did benefit, from compacting large numbers of blacks into "their own" districts so that the surrounding "bleached" districts would be more likely to elect Republicans.

In any event, Republican politicians are not as different in this regard from Democratic politicians (and vice versa) as the parties' respective fellow-travelers of pundits, law professors, intellectuals, etc., are from each other. Increasingly the parties seem to me to have very different intellectual styles (I hesitate to call them cultures). Insofar as that's true, surely the Republicans (and again, not so much the politicians as the professors, pundits, and policy makers in their orbit) put more emphasis on the reality and centrality of principles rather than pragmatism; core values rather than multicultural, subcultural, differing values; neutral standards rather than situational relativism, etc., than do Democrats. It's no accident (as we conspiracy theorists say) that liberals are much comfortable with and adept at "construing liberally" than conservatives. Very few postmodernists vote Republican.

Second, it could be argued that the differences I'm stressing are purely rhetorical and have no substance, that these admittedly different "intellectual styles," as I've just labeled them, have no relation whatsoever to how anybody actually behaves. But this is simply another way of restating the liberals' disinterest in principles and rules. Not believing them to be binding, they don't believe anybody really believes them to be binding.

In short, I think the degree to which liberalism has as a matter of principle jettisoned principle and joined the school of Stanley Fish is seriously under-appreciated.

UPDATE (10/7/2002 11:40PM) - According to Eugene Volokh, it now appears possible that Forrester may not have been guilty of hypocrisy or inconsistency after all.

Trojan Horseshoes (Tony Hooker) links to a remarkable letter in the Charlotte News and Observer.

In seeking faculty, universities look for people who can analyze and discuss matters of some complexity, who are unafraid to challenge the wisdom of simple solutions, and who have a sense of social responsibility toward those who cannot buy influence. Such people tend to be put off by a political party dominated by those who believe dogmatically in the infallibility of the marketplace as a solution to all economic problems, or else in the infallibility of scripture as a guide to morality.

In short, universities want people of some depth, subtlety and intelligence. People like that usually vote for the Democrats. So what?

Lawrence Evans
Durham
The writer is professor emeritus of physics at Duke University.

Reader Fredrik Nyman has written to report a mind-boggling article on foxnews.com reporting that five supporters of everyone's favorite Democrat, Cynthia McKinney, asked the U.S. District Court in Atlanta on Friday to reverse the results of her primary and declare McKinney the winner.

The state of Georgia does not require voters to register by party and allows them to vote in the primary of their choice. Nevertheless, McKinney, who is black, is blaming Republicans for jumping the political aisle in droves to help her Democratic opponent, who is also black, to oust her.

The suit claims that black Democratic voters in the 4th District had their voting rights violated and interfered with by the crossover votes. It asks that those crossover votes be declared unconstitutional and invalid and that McKinney be declared the winner of the Democratic primary.

"The issue is that black Democratic voters in the 4th District had their voting rights interfered with and violated," said Atlanta lawyer J.M. Raffauf, who represents the five black plaintiffs.

"Malicious crossover voting occurs when one party invades another party's primary to sabotage that party's choice of its own nominee for political office," the lawsuit reads. "The Republican Party voters crossed over and affected the outcome" of the Democratic primary.

State officials pointed to the law Friday and said it was clear that Georgia voters can vote for whomever they want in the primaries; there are no restrictions on preferred political party affiliation.

"I am simply unaware of any provision of law that prohibits voters from making a choice as to which party primary they will participate in," said Chris Riggall, a spokesman for the secretary of state.

I'm still fascinated by the ongoing discussion of "construing liberally," also known as "reading loosely" (WaPo editorial: "The Supreme Court of New Jersey read quite loosely state election law....").

Linda Greenhouse, the New York Times Supreme Court reporter who is usually quite balanced and reliable (and with whom I once served on a panel so long ago that she will have forgotten the panel, much less me), writes today of the NJ Supremes' decision to allow the substitution of Lautenberg's name on the ballot "after the formal deadline for a ballot substitution had expired." Excuse me, Linda, formal deadline? Do New Jersey statutes have degrees of deadlines? If so, I missed that. In any event, are formal deadlines less binding than informal ones? Did the august justices sit around and say, "Oh, the 51 day cutoff is not a real deadline, it's only a formal deadline"?

Greenhouse also quoted an "expert," Prof. Richard Hasen of the Loyola College of Law in Los Angeles, who said the injury to the Republicans had not been established. "The worst that can happen is that their guy has to run in a competitive election," he said. That's a rather partisan way of putting it, which might be explained by something left unmentioned in Greenhouse's story that was mentioned in todays Associated Press story: that Hasen has been a consultant to the Gore campaign.

Similaly, the WaPo also turned to an expert who is well-known as a consultant to Democrats, Pam Karlan of Stanford (She's currently advising Gov. Mark Warner of Virginia on a gerrymander case), and she also minimized the seriousness of the injury as a way to distinguish New Jersey from Florida. "Here, there's no constitutional train wreck coming," she said.

Now, if I were the polemical type I would say, "Well, yes, but it's equally true that 'the worst that can happen' is that the Democrats get stuck with the name on the ballot that they, in their wisdom, chose because the Constitution assigns the rule (not recommendation)-making power to the legislature, and the legislature adopted a rule making it too late to substitute a newer, more attractive name. If they now don't like their choice, they could always write in Lautenberg's name." But I would say that only if I were being polemical.

If I were being partisan, I would say that the Democrats have handed Forrester a solid gold campaign issue: the politics of judicial selection. It is the perfect combination of an ideal issue, and one that he could not avoid even if it weren't. "My friends," he could say,

our Democratic opponents are right about one thing: this election will indeed have a significant impact on the direction of our country. The one-vote Democratic majority in the U.S. Senate has been blocking the nomination of judges who will apply the law as written. They prefer judges who will ignore plain text and "liberally construe" statutes when it suits their own partisan purposes. If you want judges who will "liberally construe" a 51 day deadline so that it is no deadline at all, then by all means vote for my opponent, who benefited from their liberal construing. If you want judges who will be bound by law rather than who feel free to create it, then vote for me." etc.

The NJ Supremes, holding (Link via Eugene Volokh) that "the election statutes should be liberally construed," have proved they were up to the task. (Not surprisingly, liberals are very, very good at liberally construing.)

They have "construed" the statutory authorization (Link via Dave Kopel) to replace a candidate's name on a ballot "[i]n the event of a vacancy, ... which vacancy shall occur not later than the 51st day before the general election" in such a manner that the words "not later than the 51st day" don't really mean "not later than the 51st day." How did they manage that? By observing that the language "does not preclude the possibility of a vacancy occurring within fifty-one days of the general election."

True enough. All it did was say that you could fill the vacancy with another name if it occurred before the cut-off, which to most people means that you can't if it comes later. But never mind.

My mother would have been right at home in the New Jersey Supreme Court. Local lore has it that one day she pulled up and parked right in front of a "No Parking" sign and was getting out of her car when a policeman walked up, shaking his head. "But officer," she is said to have said, "it doesn't say 'positively.'"

UPDATE - And I thought that comment my mother is supposed to have made-- "But officer, it didn't say 'positively'" -- offered a humorous if telling take on the NJ Supremes' decision. But with reality like this (Link via Howard Bashman), sarcasm hasn't a chance:

Chief Justice Deborah Poritz observed that the 51-day rule for substituting a candidate appeared to be arbitrary. She added that other states had deadlines ranging from 30 days to a handful, noting that New York state's statute says that failure to meet the deadline is a "fatal defect."

"Our statute says nothing of the kind," she said.

Shiloh Bucher has a terrific post -- short, but deep -- about why she's no longer a Democrat, and it has generated a bevy of interesting comments. Take a look.

One of her reasons is that she believes in the rule of law while the Dems don't seem to. I think this point is of increasing importance, and I'd like to try to say why since I'm convinced there is more to it than mere political expediency. Republicans, after all, are not incapable of expediency, and yet I think there are real differences between the parties on the rule of law, important differences.

This may be a stretch, but I'd like to argue that the two parties are separated by some fundamental philosophical differences that operate below the more familiar differences, even more familiar philosophical differences, such as different approaches to taxes, or states rights, or big government. Everyone is now familiar with the Map of Red and Blue, but I'd like to suggest that the Red and the Blue represent more than geography. In part reflecting the urban/suburban v. rural/small town split, but also drinking from different intellectual currents, increasingly the Democrats are more sophisticated, the Republicans more simple-minded (which I mean in a non-pejorative sense) and common-sensical.

To return to where I started, take laws. Sophisticated Democrats see them as malleable; simple-minded Republicans see them as meaning what they say. Democrats see constitutions as "living," the meaning of statutes as fluid and adaptable -- in short laws as recommendations or suggestions rather than commands. Republicans tend to see meaning as more fixed.

Assuming for the sake of argument that these distinctions have some merit, I think the explanation can be found in a powerful modern intellectual current that has cut something of a philosophical chasm between the two parties, leaving them further apart than at any time I can recall and at least resembling, if not more, the profound party differences that separated the Jeffersonians and the Federalists in the new nation or the regionalized parties that resulted in civil war.

This current is called many things, depending on which eddies that ebb and flow in it one wants to emphasize, but let me highlight two: multiculturalism and relativism. In a number of different arenas today the Republicans are like the Lone Ranger: as often as not, when he comments to his colleague some version of "we're surrounded," the Democrats reply, "Speak for yourself, white, male, Euro-American!"

More seriously, multiculturalists oppose any judgments that require "privileging" (for some reason, they like to turn nouns into verbs) the principles and values of one "culture" over those of another. They regard what were formerly (and still by Republicans) regarded as American principles as simply the culture-bound preferences of one sub-group of Americans. Multiculturalism, then, goes hand-in-hand with relativism, a rejection of absolutes -- whether derived from our history, the Constitution, or laws passed by state legislatures. Plain text ceases to embody plain meaning, and is subject to more and more interpretation. In a world where principles no longer bind and no law is final, the importance of lawyers -- who are increasingly trained to manipulate text -- and courts become more and more important.

C.D. Harris makes what I take to be a similar, or at least a compatible, point on his excellent blog, Ipse Dixit. He mentions a number of current campaigns where it might well be in the Republicans' interest to drop their current candidate and substitute a stronger one, and then comments:

I'll be blunt: Any leftie who would argue that none of these scenarios should be allowed, but that the NJ Democrats should be allowed to replace The Torch is completely unprincipled. It's all or nothing, folks.

In short, the NJ Dems are a perfect expression of their party. And now here's a truly frightening thought: insofar as they succeed, the whole country becomes more like New Jersey.

UPDATE - C.D. Harris has an exceptionally interesting response to this post on his fine blog, Ipse Dixit.

The Washington Post's "Talking Points" that appeared online Tuesday afternoon discusses the brief the New Jersey Democrats have filed with the state supreme court.

The brief argues that if

"the 51 day technical requirement" prohibits Democrats from replacing Torricelli on the ballot, it would "deprive [the Democratic party] of the fundamental right of ballot access as contemplated by our election laws and as envisioned by our two party political system, and would further deprive a political party of fielding a candidate at the general election."

Senate Majority Leader Tom Daschle, D-S.D., said that by objecting to Torricelli's request, Republicans were "denying the people of New Jersey a choice" in the election.

On the contrary, it would be allowing the Democrats a second choice, since the first one didn't work out so well for them. The Dems are like a pouting consumer who bought a risky campaign product with a short warranty. The warranty expired, the defective campaign product disintegrated after the warranty expired, and now the disappointed Dems are asking the courts to save them from the consequences of their own mistake by letting them return to the store, long after business hours, and choose a shiny new (or perhaps old and used but still serviceable) campaign product.

Democrats say decades of state court decisions put voters' rights above filing deadlines and other technical guidelines.

Attorney General David Samson argued in papers filed with the court Tuesday that the justices have the power to relax the deadline to withdraw and allow Democrats to post another candidate. Samson, who was appointed to his job by McGreevey, said election laws have long been interpreted liberally to allow voters every opportunity.

I know this may appear unlikely, but what if a court with a Democratic-appointed majority were to conclude that a statute means what it says, that a clear deadline is not merely an "administrative convenience" (as the attorney for the NJ Dems put it)?

So, let's say Torricelli's name remains on the ballot, with the Dems building their campaign around the argument that a vote for Torricelli is really a vote for Lautenberg.

But what if Torricelli wins and then doesn't step aside? He hates Lautenberg so much he would no doubt be tempted to claim that his name was on the ballot and he was elected. Recall that his self-congratulatory resignation statement said only that he was choosing not to run. He did not add the customary Sherman-esque follow-up: "and if elected I will not serve." Would the Dem lawyers go back to court and claim that he wasn't "really" elected? Would a Senate controlled by Democrats refuse to seat him? One controlled by Republicans?

This could get good before it's over. But let's say the NJ Supremes vote the way they're told, Lautenberg's name is on the ballot, and he wins. Maybe there's a silver lining even in that cloud: the Democrats could no longer harp on the 2000 election being handed to Bush by the Court.

I may have missed it, but I've seen surprisingly little discussion, pro or con, of the NJ Dems mounting a write-in campaign for Lautenberg. True, there has been at least one recommendation:

"Bill Clinton is suggesting Bruce Springsteen," the Hotline's Craig Crawford told a stunned John Batchelor and Paul Alexander on their nightly WABC Radio broadcast.

"Bill Clinton is pushing New Jersey native Bruce Springsteen," he repeated, adding, "particularly if they have to do a write-in ballot."

There have been a few other references. One of Forrester's lawyers suggested a write-in campaign to the Dems. And another:

Vincent Panvini, a lobbyist for the Sheet Metal Workers' International Association, a major Democratic donor, said he believed Lautenberg is popular enough with organized labor and other crucial voting blocs to win the seat even if Democrats have to start a write-in campaign for him

The NJ Dem leadership, in short, had and has it within its own power to provide a "choice" to NJ voters on November 5 without asking a court to ignore statutes and grant them special favors. But Democrats feel more at home in courts these days.

"Don't Feel Badly For Me" - ... was the extinguished Torch's request in his maudlin resignation speech.

O.K. That's easy. In addition to his documented difficulty in distinguising right from wrong, the Senator also can't tell the difference between adjectives and adverbs. He performed badly in office, but his speech was a bad performance.

Actually, his resignation makes me feel quite happily.

Has the New York Times Come to its Senses? - No. On first reading the NYT's editorial this morning on the Torricelli affair it appears the editors have discovered the virtues of competition. "The guiding principle," they write, "should be the voters' basic right to a genuine election." But that appearance is misleading. What the Times really wants is for the courts to step in and protect some of the voters -- the Democrats who made the bad choice of selecting Torricelli as their nominee -- from the consequences of their decision. More precious to the Times than competition is protecting people from the unwanted results of competition.

There are, the Times acknowledges, some petty obstacles, like statutes, that stand in the way of doing what should be done, but apparently only pea-brained Republicans worry about little things like that, for "legal wrangling" should not undermine the right of New Jersey voters to "a competitive race."

Now that the Times has discovered, just in the nick of time, a shiny new previously unknown right -- to "a competitive race -- it will be entertaining to observe their comments on the other races this fall, inasmuch as roughly 90% of the voters live in House districts that are by no stretch of the imagination competitive. Are their rights being violated? Is gerrymandering illegal? Inquiring minds want to know.

Dave Kopel makes a powerful case on NRO that New Jersey law will not allow replacing Torricelli's name on the ballot. The Democrats obviously know this, and thus Governor McGreevey intends to ask the state supreme court to make an exception in this case because of "unusual circumstances."

If the state supreme court complies with the Democrats' request, would not the Republicans (the McGreevied party?) be in a position similar to that of the Bush campaign in Florida after the last election, when it successfully requested the federal courts, ultimately the U.S. Supreme Court, to intervene in order to reign in a runaway state court that was intent on ignoring state election law?