ABA Survey: Large Numbers of Americans Are Clueless

Well, not really. They say,

A majority of the survey respondents agreed with statements that "judicial activism" has reached the crisis stage, and that judges who ignore voters’ values should be impeached. Nearly half agreed with a congressman who said judges are "arrogant, out-of-control and unaccountable."

Does that mean that half of Americans are condemning as "activist" those judges who are slavishly following the law and Constitution instead of the values of voters?

A Plea In the Works, or Delay Tactics?

Over at Volokh, Orin Kerr tentatively disagrees with Norm Pattis on the DeLay indictment.

It seems more likely to me that DeLay knew the indictment was coming one way or another, and he figured that he was better off politically if he could put off the indictment for as long as possible.

A comment back at Crime and Federalism suggests something similar, that the statute of limitations may have been waived "in order to gain more time to try to convince the prosecutor not to file charges". But if you read the indictment (PDF Format), you find the following:

* The statute of limitations is three years;
* The date of the alleged offense was September 13, 2002;
* The time stamp on the indictment is September 28, 2005.

Did DeLay really waive the statute of limitations to buy himself a whopping two weeks? Let's take a look at what Tom DeLay has to say about the status of the prosecution as of two weeks ago:

Despite his longstanding animosity toward me and the abusive investigation that animosity has, unfortunately, rendered, as recently as two weeks ago, Mr. Earle himself publicly admitted I had never been a focus or target of his inquiry.

That statement appears to leave open three possibilities:

1. Tom DeLay is engaged in flagrant misrepresentation - that is, he was in active negotiations with Mr. Earle and very much knew himself to be a target of the inquiry, even as Earle suggested otherwise in public;

2. Tom DeLay was approached within the past two weeks with news of a pending indictment on more serious charges and, despite the expiration of the statute of limitations on the conspiracy charge, cut the deal Norm suggests; or

3. Tom DeLay was approached within the past two weeks with news of a pending indictment on more serious charges, cut a deal with the prosecutor to waive the already-expired limitations period on the conspiracy charge in order to buy time to try to avoid indictment, and the prosecutor immediately sought an indictment for conspiracy.

If we were in fact seeing scenario #3, I would expect DeLay to be complaining bitterly about the prosecutor's actual treachery, rather than whinging about what seems to be imagined treachery. Also, the indictment reflects that two alleged co-conspirators (James Walter Ellis and John Dominick Colyandro) were indicted on September 13, 2005, raising the possibility that one or both have agreed to testify against DeLay.

Thus, assuming that DeLay is telling the truth in his public statement, the stronger theory appears to be the one advanced by Norm Pattis.

With Sources Like These....

So Judy Miller has been freed to testify by her source, I. Lewis Libby, Vice President Dick Cheney's chief of staff.

The publisher of The Times, Arthur Sulzberger Jr., said in a statement that the newspaper supported Ms. Miller's decision, just as it had backed her refusal to testify.

"Judy has been unwavering in her commitment to protect the confidentiality of her source," Mr. Sulzberger said. "We are very pleased that she has finally received a direct and uncoerced waiver, both by phone and in writing, releasing her from any claim of confidentiality and enabling her to testify."

So why didn't Scooter give Miller the green light a long time ago, to save her from jail in the first place? What's so special about the "new and improved" waiver which gives Miller certainty that it is uncoerced (this time)?

Mr. Libby wrote to Ms. Miller in mid-September saying he believed that her lawyers understood during discussions last year that his waiver was voluntary.

It took a star reporter for the New York Times a full year (and a couple of months in jail) to find out that one of her highly placed sources had released her to disclose his identity? The New York Times may claim that it provides all the news that's fit to print, but... tell me I'm wrong, that it's leaving out some key details.

Delay to Plead Guilty?

Norm Pattis says yes.

Church & State

A year or so ago I read an editorial out of Europe, suggesting that American churches should be grateful for the barrier between church and state, observing that in a continent without such barriers (and even with official state churches) the culture of dependency of the church upon the state was associated with much lower levels of church attendance, contributions by parishioners, and religious belief as compared to the United States. As the Bush Administration continues its course of paying church groups to perform charitable works, both prospectively through "faith based initiatives" or retroactively following disaster relief efforts, we may have the opportunity to see if the same holds true in this country. (Why "dig deep" for the collection tray, after all, when the government is paying for the church's good works?)

The Importance of Marriage

In today's Washington Post, William Rasberry instructs us of a growing disconnect between marriage and motherhood for poor mothers.

Unlike earlier generations, they don't look to marriage to give their children "a name" or for economic stability; they see it as a crowning achievement -- something to look forward to after they have their children, decent jobs and a house of their own. To marry earlier, they insist, is to leave themselves prey to the controlling and abusive men who are available to them in their inner-city Philadelphia and Camden, N.J., neighborhoods.

Meanwhile, Maggie Gallagher has produced an analysis of recent research on family structure and delinquency that concludes that -- after controlling for race, income and education -- boys who grow up without fathers are several times more likely to end up in jail. Earlier studies, says Gallagher, who is president of the Institute for Marriage and Public Policy, show that children raised outside marriage are more prone to poverty, substance abuse, school failure, delinquency and adult crime.

Wait a second... I thought Maggie Gallagher was a staunch opponent of marriage. Oops - I guess that's only gay marriage.

Seriously, though, Gallagher is an ideologue who rails against gay marriage, single parent households and abortion rights, with a consistent subtext that there should be a diminishment of the wall between church and state. She is sufficiently reliable in her opinion that she was commissioned by the Bush Administration to write brochures on the subject of marriage, but sufficiently unreliable in her candor that she "forgot" to tell her readership of the arrangement when subsequently editorializing in favor of Bush Administration policies. You don't need to be told which positions Maggie holds or what conclusions her organization advances - if it didn't support her position, she wouldn't be talking about it.

The description reminded me of a rather unpersuasive interview I heard on NPR a few weeks ago, with author Peggy Drexler. While Drexler was asserting that her recent book, "Raising Boys Without Men", was intended only to show that single mothers and gay couples didn't have to fret about the absence of a male presence in their household, her arguments have widely been viewed as anti-male. She argued in effect that most of the supposedly deleterious effects of single parent households are tied to other factors, and that single mothers who lived in decent neighborhoods with stable incomes were producing sons who fared no worse, and sometimes better, than those from "traditional" families.

What I found unpersuasive about this was her methodology (interviews with the boys and their mothers over a period of years), which seemed designed to screen out both opposing viewpoints and unstable families (which are likely to drop out of a longitudinal study). She frequently referred to her findings as following a scientific methodology, but never used the magical words "peer reviewed" in relation to her more controversial findings. Which is not to say that there aren't many single parent households and gay households raising fine children, or "traditional" households which aren't - it's just to say that she seemed to be letting her ideology drive her research and her conclusions. Which I guess makes her Maggie Gallagher's counterpart, save for the fact that Drexler at least performs research.

So I was not particularly suprprised when I Googled Gallagher's organization the "Institute for Marriage and Public Policy" and found that the report mentioned in the Raspberry column was apparently prepared to rebut Drexler:

Can Married Parents Reduce Crime? 9/21/05
Maggie Gallagher, president of the Institute for Marriage and Public Policy says, "Results like these are a reality check for people such as Peggy Drexler ("Raising Boys Without Men") who argue that it is only poverty, and not father absence, that hurts children. Boys are hardwired to grow into men. But they are not hardwired to grow into good family men. That’s a job for mothers and fathers working together."

Well, there's a scientific assertion.... You can download the report (in PDF format) from Gallagher's site.

The report isn't actually a study - it's a survey of studies. And it doesn't actually conclude that "after controlling for race, income and education ... boys who grow up without fathers are several times more likely to end up in jail" - it states, "recent research strongly suggests both that young adults and teens raised in single-parent homes are more likely to commit crimes, and that communities with high rates of family fragmentation (especially unwed childbearing) suffer higher crime rates as a result". Raspberry should have checked his source.

Lest you believe that Gallagher's advocacy for government intervention in the family is premised in her concern for poverty, her writings will quickly set you straight:

We expect our governments, local, state and federal, to respond to our citizens' needs, all of them, even those too poor or too stupid to get out of the way of a Category 5 hurricane.

Given Gallagher's position that it is a matter for contempt and derision to suggest that government should help the poor, her advocacy for government policies relating to marriage can safely be presumed to be about something other than a concern for poverty.

Protecting My Bandwidth

After a recent computer problem, I unplugged my cable modem and router for a few hours to completely reset them. (Well, that was more time than necessary, but since I left the house....) After I got things back up and running, I started to experience a periodic error message about an IP conflict. So I rebooted my wife's computer, which seemed to solve the problem. Except....

Tonight, I saw the same message, but this time my wife's computer was off. Hm. My computer obviously isn't conflicting with its own IP number.... Oops - I forgot to password protect the wireless connection after I reset the router. I set a new password, and voila - no more errors.

I guess one of my neighbors will be investing in their own Internet connection sometime soon.

Giving Customers What They (Don't) Want

Recent changes over at the New York Times, specifically their moving editorials into a "for pay" category while adding additional services for paying readers, reminds me of a place I used to work. They had two subscription products, one of which ("Product A") was popular and lucrative, the second of which (("Product B") was a big money loser. They got the brilliant idea of eliminating both products and replacing them with a single new product - giving buyers less of "Product A" at a lower price, and throwing in "Product B" for free. But the customers weren't thrilled, pointing out that had they wanted "Product B" they would have signed up for it in the first place. After about four years, the combined product was changed to offer all of both the original products; but at a lower price than the organization had been able to charge for Product A alone before making the changes.

Let's just say, I'm not convinced that the best way to convince customers to pay for a product they want is to add features that the customers haven't previously used or requested. If the editorials themselves aren't expected entice people to sign up for Times Select, perhaps the pricing model (or subscription model) should be reconsidered.

As they say, time will tell.

Unconstitutional Sentences

Mike's recent Crime and Federalism post, mentioned below, about trial taxes also opines that plea bargaining is unconstitutional. This reminded me of a sentencing practice I used to encounter from time to time in a particular county. Specifically, the defendants were told at the time of the plea hearing that if they paid restitution in full at sentencing, they would get a lesser sentence than if they did not. I asked some lawyers in that county about the practice, and they indicated that they knew they had a valid constitutional objection, but that the trial court judges had already rejected the constitutional argument, and that their clients somehow always managed to come up with the money so they never had the opportunity to appeal the issue. Eventually, though, a defendant was unable to pay, and the Court of Appeals held that a defendant's ability to pay must be considered when offering a reduction of a sentence of incarceration in return for up-front payment of restitution.

If you'll excuse the shift in topics.... As much as people complain about the civil justice system, some of the worst systemic defects are found within the criminal justice system. But as a society we largely let them pass below the radar, because they largely work to the disadvantage of the defendant. The wrongly convicted are viewed as exceptional, or as "probably guilty of something else, anyway". Constitutional rights are derided as "loopholes". And, with poor defense funding and often overworked public defenders or underqualified appointed attorneys, "junk science" often rules the day - in favor of the prosecution. (Prosecutors complain of a so-called "CSI Effect", but some of their brethren have contributed to the problem through presentation of junk and overstated science testimony about hair and fiber evidence, bite marks, gunshot residue, footprints, "shaken baby syndrome"....)

The Trial Tax

Over at Crime and Federalism, Mike argues that the tough criminal sentences handed out to white collar offenders constitutes a trial tax.

Now, I have already spoken unsympathetically to those who sympathize with the "poor little rich boys" who just can't help themselves from stealing from the corporate coffers, defauding investors, or obstructing justice and are supposedly "punished enough" by the humiliation of being caught. But I want to be clear about a couple of things: First, everybody's sentence should be fair and proportionate, whether they are convicted by trial or plea. Second, states should do a better job of screening prisoners, such that those who pose no realistic risk of flight or of harm to other prisoners are not housed in medium to maximum security prisons. Third, there should not be a "trial tax" - and courts should work to minimize any appearance of a trial tax. (Particularly where plea bargaining enters the equation, in my humble opinion, rationalizing a "trial tax" on the basis that somebody who pleads guilty shows more "remorse" than somebody who goes to trial doesn't cut it.)

Meanwhile, I wouldn't mind seeing those who advocate for the "poor little rich boys" say a word or two about the effect of the criminal justice system on criminals who breathe less rarified air. You know - the ones who have to mortgage their homes to pay for their lawyers, to bear the public stigmatization of charges, to have their families stressed by the accusation and the burdens of trial, and who certainly don't have a few million dollars in the bank to fall back on even if they are ultimately acquitted. Or, for that matter, those who enter pleas to inappropriate charges, or who are wrongly convicted because they could not afford an adequate defense, investigative help, or necessary expert witnesses.

(Not) Celebrating History

Britain is apparently compiling a list of terrorist events throughout history (acts of violence against people, property, and electronic systems if intended to advance a political, religious or ideological cause or to influence a government, except for those involving Ireland), with the intention of making their celebration a crime. This made me wonder for a moment about Guy Fawkes Day, but then I realized that Britain isn't celebrating the terrorist event. It's a celebration of the arrest, torture and violent execution of the terrorist, which renders it altogether civilized.

Justice Ginsberg Supports Pedophilia?

This post over at the Volokh Conspiracy brings to mind my prior thoughts on gotcha politics.

Sorry, Chief - I Just Don't Buy It

I understand why the town of Gretna and its police chief are trying to redeem themselves in the eyes of the world - what a black eye. The chief of police protested on NPR's All Things Considered,

"I'm very pissed off ... I am, because I've been painted as a racist and this community's good reputation has been blemished because of something that we did because the city of New Orleans was ill-prepared to handle the situation that they had and expected us to evacuate their city without any preparation, without any notice, without any contact ...

"We were not contacted by anybody in the city of New Orleans, police or city officials, prior to, during, or since the storm. No one called us and said, can you handle these people? Can you help?"

I will concede that it would not be an easy task to suddently have to deal with thousands of refugees fleeing a flooded city. I just wasn't aware either that a town had the right to shoot over the heads of civilians in order to prevent lawful entry, nor that the victims of a hurricane and flood deserved refuge only if city officials gave advance warning of their plight. And I just can't buy the chief's logistical arguments that, after one day in which the town shuttled 5,000 evacuees from the bridge to a FEMA site:

"I realized we couldn't continue, manpower-wise, fuel-wise," Lawson said Thursday. Armed Gretna police, helped by local sheriff's deputies and bridge police, turned hundreds of men, women and children back to New Orleans.

Let me get this straight - he was able to amass a force of his own officers, sheriff's deputies and bridge police, maintain a 24 hour watch to prevent any evacuees from crossing the bridge, justify shooting firearms over the heads of civilians, while making no provision to provide for the safety and welfare of those his actions trapped... because it would take too much manpower to keep the buses running? Because, although there was apparently plenty of fuel to carry officers to the bridge, there wasn't enough gas in town to power the buses? Admittedly, there's something more which colors my skepticism:

After someone set the local mall on fire Aug. 31, Gretna Police Chief Arthur S. Lawson Jr. proposed the blockade.

* * *

Sometime on Wednesday, Aug. 31, a fire broke out in the mall, next to the local branch of the sheriff's office, and police chased suspected looters out of the building.

Mayor Harris had had enough. He called the state police.

"I said: 'There will be bloodshed on the west bank if this continues,'" Harris recalled. " 'This is not Gretna. I am not going to give up our community!' "

This, of course, is blamed on evacuees although I have not seen any evidence to support that contention. I could speculate that the Gretna mayor and police assumed that they were evacuees, because they were darker in complection than the majority of town residents; but would that help the chief's case that closing the bridge wasn't a racially motivated decision? And if it is that easy to call the state police for backup to close the bridge, why should we presume it would have been harder for them to request additional drivers and fuel for buses (assuming a shortage actually arose)? I liked this statement as well,

An African-American officer fired at least once in the air to calm the group, Lawson said, but that was when they were still loading evacuees on buses the day after the storm. Lawson said he planned to investigate other allegations, such as excessive force.

Shooting over people's heads to calm them? And why bring up the officer's race?

The NPR piece concluded with a valid question,

"Chief Lawson would like to know without communication, food, water, enough buses and gasoline, how long would it take another American city to reach the limits of its compassion?"

I dunno.... A week?

Google's Copyright Woes

I do find it interesting, as Google is being sued over its Google Print service, how differently online and traditional publishers view copyright - and Google's services. For most online publishers, being included in Google's index is a blessing, bringing both traffic and revenue. It is expected that Google's spiders will attempt to reach any given site, and it is accepted that it is the site owner's responsibility to install a file or line of code which will instruct Google (or any other search engine) not to index its content. It is understood that in the process of indexing content, every major search engine maintains a copy of the code from the page and, again unless instructed otherwise, will display that "cached page" to users of their services.

In the print world, the reaction seems to be anger and fear - how dare Google suggest that copyright owners "opt out" if they don't want Google to maintain a copy of their works on its servers? It will be interesting to see how this pans out - and if as a result of this litigation over printed matter, at the end of the day webmasters will have to expressly invite Google (and other spiders) in before they will be included in search engine results.

Budget Cuts Nobody Would Feel

According to Senator Tom Coburn (R-OK),

The fact is, is we -- I know of $100 billion in cuts that we could make tomorrow that nobody would feel.

If I recall correctly, the Republicans control both houses of Congress and the White House. If in fact there are $100 billion in budget cuts that could be made which "nobody would feel", why weren't they made five years ago?

Private Markets, FEMA and HUD?

With the catastrophe in New Orleans, the Bush Administration has proposed a program which will help poor (former) residents of New Orleans become homeowners on what is presently federal land. But in the short-term, thousands will be herded into temporary housing - trailer parks constructed under the auspices of FEMA, meant (in a paraphrase of an official who was describing the planned parks) to be comfortable enough to live in but not comfortable enough such that people will want to stay.

NPR, a few days ago, aired a program (sorry, I'm not sure which one) which described life in a similar trailer park in Florida. Some of the residents spoke of the difficulty in finding alternative housing. One didn't want to move to a new apartment that wouldn't take her dog. Another couple, despite having employment and having lived rent-free for a year, claimed that they had been unable to raise money for a security deposit and first month's rent. The description of the park made it seem like it fit the description above - not a place anybody would truly want to stay over the long term. But hundreds of people had lived in the park for a full year, with no apparent intention of going anywhere.

This raises some "free market" questions. Since the Bush Administration occasionally pretends that there are free market solutions to just about any problem, and that the market can resolve most issues better than government, why are they so distrustful of the free market when it comes to housing? There are millions of rental units available in the United States, and it may well turn out to be cheaper to negotiate rental contracts with their owners than to build (and ultimately throw away) thousands upon thousands of new "rent free" housing units in temporary trailer parks. And even if it's not, Bush is writing a blank check for post-Katrina clean-up, so why not give private landlords a boost?

Beyond that, there's our nation's public and subsidized housing. If the free markets are the best solution, and home ownership helps lift people out of poverty, why aren't home ownership programs being implemented through HUD? Instead we have what amounts to more permanent versions of the FEMA trailer parks - housing units that, even if well-built, is often permitted to deteriorate to the point where the are comfortable enough to live in but not somewhere you would want to stay over the longer term. (And yet, as with the "temporary" Florida trailer park, people stay for the longer term anyway.)

So how about shifting HUD's focus from rental units to condo units? Give anybody with a job, no matter how mediocre, a subsidy toward the purchase of a condo unit as opposed to a rent subsidy. Convert many public housing projects into condos, put condo boards in charge of them, and have them contract with private companies for maintenance services. Rather than subsidizing section 8 rental housing, subsidize section 8 condo housing. Let the working poor become homeowners. Create a community with a stake in their property, rather than one which falls victim to slumlords and to neighbors who see no downside to trashing the place.

Granted, such a program probably wouldn't work for all people, and there would probably be some catastrophic failures along the way. (I am reminded of an effort in England, some decades ago, to move people out of crumbling houses into newly (but poorly) constructed row houses, with the net effect being the realization that by the time they finished the initial transition the first set of "replacement" houses would, themselves, have to be replaced.) But the status quo is not particularly impressive, so isn't it worth taking a look at a possible market solution? (Or are we only interested in "market solutions" which follow the model of "trickle down economics".)

What Language Do Those Brits Speak, Again?

Google announces "Polyglot pictures":

People all around the world are photo-mad, snapping digital photos everywhere they go. Today people in Australia, Austria, Belgium, Brazil, Canada, China, France, Germany, Hong Kong, India, Italy, Japan, Netherlands, Russia, South Korea, Spain, Switzerland, Taiwan and the UK have a new tool: Google's Picasa photo organizer in their own language.

I know some Canadians are Francophones, and I'm still trying to figure out what "didgeridoo" means, but particularly for the Brits I would have thought that the, um, English language version would have worked for them.

Intention vs. Perception

Context: A search for missing keys.

Overheard:

How about I see yo' keys?

What?

I see yo' keys!

That's not funny.

Like in Harry Potter - accio keys.

Oh... I thought you were saying....

White Collar Crime

In white collar crime legal circles, it is often suggested that white collar criminals are somehow deserving of lesser sentences because of the hardship imposed on their families, or the stigma they must endure from the conviction. When it comes to criminal CEO's, I guess it's harder for the family at the top to give up two or three homes, access to the company jet, and half of their domestic staff, than it is for the family of a blue collar criminal to go on ADC. (And just look at all the sincere contrition in Mike Milken's official biography.)

Here's another one - after a criminal CEO loots a company, diminishes its value for shareholders (perhaps destroying employee retirement accounts in the process), and maybe even puts it out of business... a long prison term is unnecessary because "Their positions of power have been stripped from them and they are unlikely to have the ability or power to ever be a menace to society again." Hm. As were the positions of the cops who tortured Abner Louima.

Oh, but "that's different" because it's assaultive behavior. (And it's different from a Jean Valjean, who will always have the temptation of grocery stores from which to steal.) Well then, one word: Deterrence.

A Schedule of Damages for Malpractice Cases?

One of the stranger reform proposals I occasionally hear emerge from the medical circles is the notion of a "schedule of damages" for medical malpractice cases. This ostensibly would give greater certainty and predictability to jury verdicts in malpractice cases - rather than picking a number based upon the evidence and testimony presented at trial, jurors would be asked to match the plaintiff's injuries to a schedule and award damages accordingly. Or perhaps they would simply be asked to itemize the plaintiff's injuries, and the judge would apply the schedule.

It won't fly.

Why not? Leaving practical issues aside, because it would undo the biggest accomplishment of the medical malpractice insurance companies in their quest for "tort reform" - damages caps. Think about it. Take the worst malpractice injury you can think of - let's say, quadriplegia, or leaving somebody in a persistent vegetative state, or killing somebody, or leaving somebody conscious but completely unable to communicate or interact with the outside world. Under "tort reform" measures in most states, that's worth at most $250,000.00 in non-economic damages. So what's paraplegia worth? $200,000.00? What's a single paralyzed limb, or an amputated limb worth? The loss of vision in both eyes? In one eye? $50,000.00? What if you have a combination of injuries - do you sum the damages, award only the value of the injury deemed most serious under the schedule, or... what? Can you imagine a legislature trying to foist such a schedule on the public?

As caps on non-economic damages have had no apparent effect on insurance rates, perhaps we shouldn't be surprised that doctors are looking for alternatives. And perhaps it would even be true that a schedule of damages would work better for doctors and for victims of malpractice than the present caps. But the insurance companies are not going to give up the fact that if their insured kills or cripples you, your non-economic damages are capped at a level that would be absurdly low if placed on even a modestly fair schedule of damages.

Hating Juries

As much as the Founding Fathers thought juries so central to the cause of justice that they twice specifically recognized the right to a jury trial in the Bill of Rights, it is no secret that many in the modern world hate juries, and never hesitate to pour their scorn upon a jury decision they believe to have been in error. It is claimed that "jurors" with specialized training will be less prone to error.

It is interesting to note, first, that the people who are behind the denunciations of the jury system (with the exception of doctors and their lobbyists) don't seem to have any special training themselves. That is, they tend to be reporters and pundits, often reciting what has been fed to them by "tort reform" lobbyists, and people who have read the articles and columns by those reporters and pundits. (Or law professors who have done the same.) It is worth asking, do those critics of the jury system believe that they, themselves, are suitable jurors for scientific issues?

It is also worth asking, to what degree do those with "specialized training" get it right? Are judges in fact more likely to rule correctly than are jurors? Do juries in which members have "specialized training" (as reflected in voir dire) "get it right" more often than juries without such training? Or are we to just take it on faith that "specialized training", however that happens to be defined, will improve accuracy?

Which in turn raises the question, "What is specialized training"? Does a juror who is hearing a pharmaceutical product liability case have to have high school science classes? A college degree? A college degree with a minor in the physical sciences? A college degree in chemistry? A masters in biochemistry? A Ph.D. in pharmacological sciences? An appointment as a professor of pharmacological sciences? Is this going to be a "hard and fast" standard, with state legislatures defining the minimum qualification for each profession, and each specialty and subspecialty of each profession? Or will this be left to the judge's discretion (in which case we may see appeals suggesting an abuse of discretion by a judge who permitted a juror to serve on the basis of a bachelor's degree in chemistry, but without also requiring that the juror had completed, for example, classes in cellular biology and neurochemistry). Oh yes - and should there be a work experience requirement, or a recency of degree requirement, so we can be sure that the specialized training remains fresh in the juror's mind?

What about the notion that we can take people who don't have the background to serve as jurors, give them specialized training, and transform them into effective finders of fact? This is the notion often advanced in the context of "malpractice reform" - we could specially train judges who would then be better able to decide medical malpractice cases. How long would this specialized training be? And what is it about the fact that somebody has been appointed or elected to be a judge, or happens to hold a law degree, which automatically makes the person more suited for "specialized training" than a juror? I know lawyers and judges who took as few math and science classes as they could possibly take while still qualifying to graduate. And I know many non-lawyers who have astonishing natural aptitude for maths and sciences.

Further, doesn't all this make it fair to ask why lawyers who advocate this type of reform, and who are already able to do so, don't take the time at trial to provide the very education that they lament jurors don't possess? The prosecution in the O.J. Simpson trial, the outcome of which is often raised in relation to "dumb juries", did a horrible job of educating the jury about DNA. I heard Christopher Darden lamenting that the defense had exercised a peremptory challenge to remove "the only potential juror who knew what deoxy... deox... what DNA stood for". (Not an exact quote, but that's the gist of his comment.) If the prosecutor, months after the most important case of his career, still can't choke out the term "deoxyribonucleic acid", whose fault is it that he couldn't impart the science of DNA onto the jury?

Why... obviously it must be the dumb jurors' fault.

Another issue bypassed by the "tort reform" advocates in this debate is the role of the judge as an evidentiary gatekeeper. If the defense lawyers believe the plaintiff's case to be built on "junk science", they should bring the appropriate pretrial motions to keep the "junk science" out of evidence - and their motion will be decided by the judge. If they lose the motion, the judge is effectively declaring the resolution of the scientific issue to be a legitimate question for the jury. So before critics jump down the throats of the jury, as they seem inclined to do with the Vioxx case, at least in my opinion, they should first be explaining either why the defense chose not to pursue a pretrial ruling to exclude the evidence or how the judge erred in denying that motion.

Educational Reform

Hopping on the bandwagon of those who propose, without any further evidence or explanation, that paying teachers more will improve schools, Chris Whittle of Edison Schools Inc. asserts,

If you believe (1) that teacher quality is crucial to the success of our schools and (2) that ultimately we get what we pay for, then let's be clear: We need to double the average teacher's pay in America - and even triple it for our best-performing teachers - if schools are to compete with other fields for the talent they need.

But providing that kind of increase is far from easy. Teachers and their unions must fight for even 5 percent annual raises. Why? Because the taxpayer-crushing scale of K-12 education makes any increase a very big deal.

I didn't notice the identity of the author until after I read this proposal. My initial reaction was, "A school administrator's dream" - think about the fact that school administrators often earn about three or four times the salary of their top-paid teachers. So I can't say that I was surprised to read that the proposal came from a school CEO.

Given that Whittle rules out tax increases to pay these doubled and tripled salaries, noting that they would be incredibly burdensome for the middle classes and politically unpalatable to politicians, what does he propose? Larger class sizes and/or less classroom instruction, coupled with study hall. Or do I misread?

America has about 3 million teachers in its public schools. What if we had a new school design that required only 1.5 million teachers but paid them double current levels? Does that mean class sizes would be doubled? Not necessarily; it's not what I would recommend. But it would be a way to force us to confront this thorny question: Is a class of 30 with a great teacher educationally inferior to a class of 15 with a so-so teacher?

But school designers of the future might choose instead to reduce by half the number of classes students attend, keeping class size static. Under such a plan students might spend just as much time -- or more -- in school, but it would be divided between "conventional classes" and new, independent learning programs (possibly similar to those being used in home-schooling programs today). This would be particularly applicable to middle and high schools.

Okay... he says "independent learning programs", not "study hall", which implies a greater amount of structure as the children learn without the assistance of teachers than a traditional "study hall" environment. But when was the last time you were in a middle school or high school where doubling a class size would mean moving up to thirty student classes? Or where the majority of the school's students, placed in study carrolls in front of self-paced computerized learning modules, would buckle down and do the work?

I'm thinking of the people I know - good students - who took self-paced college classes in math or computer science, where the sessions took place in a lab, tests were computerized, and they could proceed at their own pace over the course of the semester. I can't think of one who worked ahead of schedule. For that matter, I can't think of one who didn't have to cram in a bunch of extra sessions toward the end of the semester in order to complete the program. That type of program may well work in home school settings, where a parent monitors progress, but mom and dad won't be hanging out in Whittle's glorified study halls - either to help children understand the material, or to crack the whip when they fall behind in their studies.

Across the hall at the New York Times, Thomas "The world is flat, flat, flat and buy my book" Friedman describes the type of self-study program that Whittle may have in mind, and (in fairness to his flatness argument) notes that it is emerging from India.

With a team of Indian, British and Chinese math and education specialists, the HeyMath group basically said to itself: If you were a parent anywhere in the world and you noticed that Singapore kids, or Indian kids or Chinese kids, were doing really well in math, wouldn't you like to see the best textbooks, teaching and assessment tools, or the lesson plans that they were using to teach fractions to fourth graders or quadratic equations to 10th graders? And wouldn't it be nice if one company then put all these best practices together with animation tools, and delivered them through the Internet so any teacher in the world could adopt or adapt them to his or her classroom? That's HeyMath.

That model has merit - take a look at what works throughout the world, determine the best educational methods, and provide a mechanism by which they can be employed anywhere in the world. At the same time, trying to automate those teaching methods through software is a bit more complicated, studies of computer software for teaching math concepts suggest that its promise has not yet materialized, and the cost of buying and maintaining the equipment and software used in computerized educational programs can be immense. (An Internet-based program like the one Friedman describes could overcome some of the cost and maintenance issues by reducing the need to keep updating computers to power the latest software (as opposed to a browser) and having the latest software instantly available by virtue of subscription to the remote Application Service Provider.)

If this is the type of system that Whittle has in mind, perhaps he envisions providing schools with the hardware and applications they need on the basis of an annual fee. (And if anything can be learned from Whittle's history, that fee can be reduced by making the kids view ads every time they fire up an educational program... or perhaps by weaving product placements into the software itself. "If you have five cans of Coca Cola, and your friends take three of those cans of Coca Cola, how many friends do you have left?")

Maybe He Doesn't Get Out Much

Commenting on Roe v Wade, Charles Krauthammer huffs,

Set aside for a moment your thoughts on the substance of the ruling. (I happen to be a supporter of legalized abortion.) I'm talking about the continuing damage to the republic: disenfranchising, instantly and without recourse, an enormous part of the American population; preventing, as even Ruth Bader Ginsburg once said, proper political settlement of the issue by the people and their representatives; making us the only nation in the West to have legalized abortion by judicial fiat rather than by the popular will expressed democratically.

Why doesn't the Canadian Supreme Court decision, R. v. Morgentaler, Smoling, and Scott, [1988] 1 S.C.R. 30, 79-80, count?

Krathammer also suggests that when legislators ask about stare decisis, they aren't concerned with the outlawing of racial quotas or the right of the Boy Scouts to exclude gay scout leaders. Curiously, though, he doesn't mention desegregation. Not curiously, really... if he were to put Brown v Board of Education or Loving v Virginia into the mix, he would have to explain why (despite his being a supporter of legalized racial integration) those issues don't properly lie with the state legislatures, consistent with the long-standing practices and precedents they overturned. Or, conversely, he would have to explain why they do.

But then, perhaps Krauthammer is a "cafeteria federalist", and thus doesn't recognize an inconsistency.

Sarcasm

A reader suggested that it might be helpful if I posted sarcastic comments in red, such that they could be easily distinguished from the rest of each post. I went back and edited the entire blog to reflect the distinction, but as it was more expedient the sarcastic comments remain posted in black. Everything else now appears in red.

Judge Roberts Eats Babies!

Well, not really, but he did say that he is a modest judge.

The actual "silly headline" was in the electronic edition of the Washington Post, to the effect that Roberts testified that he opposed judicial activism. And there I was, expecting him to give it a ringing endorsement....

The part where Roberts declined to answer questions about... well, pretty much any important issue, citing the "precedent" that prior candidates for the Supreme Court had declined to do so (in one case, that of Clarence Thomas, in adherence to advice given by Roberts himself) was... weak. The notion that a potential Justice cannot state an opinion on a past case without somehow compromising his ability to decide future cases is ridiculous. If that were the case, any dissenting Justice would have to recuse himself when the same issue came back before the court. It is perfectly reasonable to ask a potential Justice to give a stronger opinion on a major historic case than "It is established precedent" (well, duh).

Perhaps when a nominee pulls the "I can't state my opinion" canard, he should instead be invited to state what he believes are the best arguments on both sides of the issue - with the ability to present strong arguments for both sides being something Roberts himself defines as a hallmark of a good lawyer. Then he can be asked which of his arguments he personally finds more convincing. If he still can't answer, the follow-up question should be whether somebody who is so unable to state an opinion as to the relative strengths and weaknesses of his own arguments is competent to serve as a judge, let alone a Justice of the Supreme Court.

But then, perhaps confirmation hearings are more about giving Senators the chance to look good on camera, than they are about determining if a particular candidate should be confirmed.

... And Then There's Mayor Nagin

If you want to learn how the Mayor of New Orleans fell down on the job, Lies.com provides some detail. I've been wondering about the very real logistical problem described by Nagin's defenders - if he had successfully evacuated the city before the hurricane, where would he have taken the people? But unlike Nagin's defenders, I don't see that as a defense of inaction, but instead am incredulous that no New Orleans administration developed that part of an evacuation plan.

The Federal Response To Hurricane Katrina

I am not sure how I came across this editorial by Jack Kelly, a columnist whose work I don't previously recall reading. I am not sure whether he is being intentionally misleading, or if he simply doesn't grasp the issues. Kelly complains,

It is settled wisdom among journalists that the federal response to the devastation wrought by Hurricane Katrina was unconscionably slow.

* * *

But the conventional wisdom is the opposite of the truth.

Jason van Steenwyk is a Florida Army National Guardsman who has been mobilized six times for hurricane relief. He notes that:

"The federal government pretty much met its standard time lines, but the volume of support provided during the 72-96 hour was unprecedented. The federal response here was faster than Hugo, faster than Andrew, faster than Iniki, faster than Francine and Jeanne."

So the National Guard met its "standard timeline" once deployed? Does that mean that no criticism can be made that the "standard timeline" is inadequate, or that deployment should have occurred at an earlier time? Does that mean that no criticism can be made of other failures - after all, it was not only the National Guard which had a duty to respond to the crisis, and it seems to be beyond quesiton that DHS and FEMA fell down on the job.

Journalists who are long on opinions and short on knowledge have no idea what is involved in moving hundreds of tons of relief supplies into an area the size of England in which power lines are down, telecommunications are out, no gasoline is available, bridges are damaged, roads and airports are covered with debris, and apparently have little interest in finding out.

So they libel as a "national disgrace" the most monumental and successful disaster relief operation in world history.

Fortunately for them, Jack Kelly is here to... well, fail to explain the logistics, or why deployment could not have been more efficient. It is even possible to question all of that without disputing that the Guard did a good job once deployed. But apparently Kelly is here to score rhetorical points, not points of fact. And as if I needed more evidence of that:

Journalists complain that it took a whole week to [accomplish a significant rescue effort]. A former Air Force logistics officer had some words of advice for us in the Fourth Estate on his blog, Moltenthought:

"We do not yet have teleporter or replicator technology like you saw on 'Star Trek' in college between hookah hits and waiting to pick up your worthless communications degree while the grown-ups actually engaged in the recovery effort were studying engineering.

What is more telling? That Kelly sought out Moltenthought's blog as a source, or that he thought that particular stupid insult was so clever and insightful as to merit repetition in a newspaper column?

Kelly concludes,

Exhibit A on the bill of indictment of federal sluggishness is that it took four days before most people were evacuated from the Louisiana Superdome.

The levee broke Tuesday morning. Buses had to be rounded up and driven from Houston to New Orleans across debris-strewn roads. The first ones arrived Wednesday evening. That seems pretty fast to me.

A better question -- which few journalists ask -- is why weren't the roughly 2,000 municipal and school buses in New Orleans utilized to take people out of the city before Katrina struck?

I'm not going to defend the local response in any number of respects. For example, the declaration of the Superdome as a point for people to seek refuge was made without any advance provision for food, water, or sanitation. But last I heard, there were not great lines of people trying to escape the city before the Levees broke - and afterward it was too late. According to Walter Maestri, emergency management chief for Jefferson Parish, the buses were in use up to that point. It may be that the bus effort was too little or too late, but Kelly again doesn't appear interested in the facts.

Here's something that bothers me. Before 9/11, the "big three" emergency scenarios for federal disaster officials were reportedly a terrorist attack on New York City, a major earthquake in Los Angeles, and a hurricane that flooded New Orleans. Spread the blame as you will, but if this is the Best that Bush's Deparment of Homeland Security can do for one of the "big three" some four years after 9/11, there is no conceivable defense of its incompetence. Whether or not state and local officials were doing their jobs, once Bush declared Louisiana a disaster state the federal response should have been kicked into high gear. Just as federal ineptitude doesn't absolve the state and local authorities of their share of responsibility for their own failures, the state and local mistakes and failures do not excuse a botched federal response.

But then, as I have noted before, government officials can be expected to take responsibility for mistakes only when they are certain that they will not be held accountable.

Reforming the FDA

The New England Journal of Medicine offers a perspective on possible reforms to the drug approval process which could make the FDA more effective. (Credit: DB's Medical Rants.)

Haunted Restaurants?

Law.com informs us,

The landlords of an Orlando, Fla., entertainment complex are suing two restaurateurs for refusing to move into a renovating building because they claim it is haunted.

It may be presumptuous of me to say so, but I don't think the defendants have a ghost of a chance in court.

Supreme Court Nominees

Michael Luttig, who recently wrote the opinion upholding the President's right to declare a citizen an "enemy combatant" and subsequently deny that citizen any access to courts or lawyers, is reportedly under consideration for nomination to the Supreme Court. Which, to me, brings to mind questions of constitutional construction. Some constitutional context:

Article I, Section 9, Clause 2: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

Which description of the judicial philosophy behind Padilla fits best: Originalist? Textualist? Activist? (Something-Other-ist?)

Krauthammer Plays The "Blame Game"

Today, Charles Krauthammer tells us who we should blame for the post-hurricane fiasco in New Orleans. I can't argue too much with his essential points, as I've posted similar sentiments here - Blame Bush all you want, but state and local authorities bear responsibility, and the federal disaster management "professionals" who displayed astonishing incompetence bear responsibility and Bush, though bearing responsibility for the appointment of those incompetents (both at DHS and FEMA) and for not kicking them in their butts after their initial fumbles, can appropriately delegate responsibility for this type of disaster. But he loses me with his last two points - blaming Congress for making DHS too bureaucratic? Blaming the American people for not supporting good energy policy?

That last point in fact seems inconsistent with his earlier claims.

This kind of stupidity merits no attention whatsoever, but I'll give it a paragraph. There is no relationship between global warming and the frequency and intensity of Atlantic hurricanes. Period. The problem with the evacuation of New Orleans is not that National Guardsmen in Iraq could not get to New Orleans but that National Guardsmen in Louisiana did not get to New Orleans. As for the Bush tax cuts, administration budget requests for New Orleans flood control during the five Bush years exceed those of the five preceding Clinton years. The notion that the allegedly missing revenue would have been spent wisely by Congress, targeted precisely to the levees of New Orleans, and that the reconstruction would have been completed in time, is a threefold fallacy. The argument ends when you realize that, as The Post noted, "the levees that failed were already completed projects."

(That's a great initial straight line, but I'll resist the temptation.)

It would be more correct to assert that the consensus view of scientists and climatologists is that there is insufficient evidence to suggest that recent Atlantic hurricanes represent anything but part of a climatic cycle. There is a scientific consensus that global warming has not changed Atlantic wind patterns so as to affect Hurricane formation or strength. There are, however, scientists who look at sea surface temperatures, known to contribute to hurricane strength, and suggest that those temperatures are increasing as a result of global warming with a resulting increase in the severity of hurricanes. Time will tell - either the recent pattern will subside and the Krauthammer group will say "I told you so", or the pattern will continue to a point where it becomes statistically impossible to attribute the hurricanes to normal weather cycles, and other hypotheses will take the fore.

It is also reasonable to assume that the proposed projects which might have prevented this type of disaster, even if given the full backing of the Bush Administration, would have been far from completion and probably would not have made any difference.

But how do I reconcile the claim, "There is no relationship between global warming and the frequency and intensity of Atlantic hurricanes" with the blame, "The American people ... have made it impossible for any politician to make any responsible energy policy over the past 30 years"? Once you remove climate change from the equation, what does energy policy have to do with the disaster in New Orleans? (Also, did I overlook Krauthammer's columns where he took on the Bush Administration's energy policy, and its permitting energy interests to effectively write its energy bills? Perhaps he's describing himself as a microcosm of the "American people"?)

And what of his introduction?

In less enlightened times there was no catastrophe independent of human agency. When the plague or some other natural disaster struck, witches were burned, Jews were massacred and all felt better (except the witches and Jews).

A few centuries later, our progressive thinkers have progressed not an inch. No fall of a sparrow on this planet is not attributed to sin and human perfidy. The three current favorites are: (1) global warming, (2) the war in Iraq and (3) tax cuts. Katrina hits and the unholy trinity is immediately invoked to damn sinner-in-chief George W. Bush.

As much fun as Krauthammer has pretending otherwise, the heirs to the "less enlightened times" he describes are not political progressives. They are "religious leaders" like Pat Robertson, who pray for the death of Supreme Court Justices, and blame gays, wiccans, and Planned Parenthood for disasters (natural and man-made). I know Krauthammer is an ideologue, but is he too closely aligned politically with the "religious right" to even notice what its more extreme elements are actually saying about this disaster (or 9/11)?

Where Does David Brooks Live?

I ask, because as I read his call (within the context of the destruction of New Orleans) for breaking up concentrated populations of the urban poor, and integrating them into middle class neighborhoods, I have a mental image of him observing the consequence from the upper stories of a luxury apartment building. It's not that the problems he describes aren't real. It's not that it might not work, particularly for future generations who might otherwise be born into blighted neighborhoods. It's just that he seems to be (again) calling exclusively upon others to shoulder the burdens of his political agenda and proposed social experimentation.

The Weakened Standard, II

Yesterday I observed that William Kristol seems to believe that President Bush is incompetent. His latest editorial suggests that Bush is weak and stupid (or is there another way to read this):

Would any of his aides have the nerve to tell him that as Supreme Court jurists go, Gonzales would be mediocre--and not a solid bet to move the court in a constitutionalist direction? Would any of them have the nerve to explain to the president that a Gonzales nomination would utterly demoralize many of his supporters, who are sticking with him and his party, through troubles in Iraq and screw-ups with Katrina, precisely because they want a few important things out of a Bush presidency--and one of these is a more conservative court? Would any of them tell the president that risking a core item in the conservative agenda for the sake of either friendship, diversity, or short-term political spin, would be substantively wrong, and politically disastrous?

Maybe. And maybe Bush doesn't need all these reminders.

That last sentence seems designed to provide him with some plausible deniability if he is confronted with the obvious implications of his rhetorical questions. But "maybe"? Leaving aside Kristol's assessment of Gonzales, which appears driven by ideology as opposed to evidence, Bush is well aware of what his supporters expect (and demand) for the Supreme Court. With friends like Kristol....

Bush's larger problem is probably not that he will forget to appoint a "conservative", but finding another Roberts - somebody whose philosophies he believes will satisfy both his politically conservative base, while simultaneously satisfying religious "conservatives" who expect his nominees to overturn Roe v Wade, to permit greater state subsidy of religious organizations and a greater role for religion in the public sphere, and to suppress, using Scalia's preferred phrasing, "the so-called homosexual agenda."

Rumor vs. Reality

Taking a look at some sensational rumors and dubious reports of criminal activity after the hurricane, Reason asks, "Did the rumor mill help kill Katrina victims?" (See also this story from the perspective of a stranded hotel guest, which I learned of through freelance researcher Maggie Brazeau.)

For the Record

In a microcosm of a weird debate over "taking charge, over at the Volokh Conspiracy a couple of conspirators can't seem to agree as to whether Rudy Giuliani should have been sent down to New Orleans to supervise disaster relief, or if President Bush should take command. I am not into hero worship - even assuming Giuliani wanted the job, I don't think that sort of appointment would do anything to help. What does Giuliani represent to the people of New Orleans? What does he know of them? The context is very different from New York City, and the skill set demanded is also very different. (If the goal, though, is to overshadow news stories about government ineptitude, such an appointment might work for a couple of days.)

I am also not one to think that Bush should be taking charge. Had Bush done his job, he would in fact have quality people at FEMA and DHS who were responding capably and efficiently to the crisis. But even given Bush's lousy choices for appointments, he is the President of the United States - even on this scale, disaster management is a job he should be delegating.

Presidential involvement in this type of disaster has often revolved around carefully orchestrated visits and photo opportunities - something I have personally found distasteful starting many Presidents ago when I first realized the purpose of the appearances. Oh, perhaps I'm being too cynical - a President's appearance can help rally and inspire the people who have been ravaged by a disaster, as well as those who are engaged in the relief effort. But it is my impression that appearances at disasters have turned into events to help advance a President's public image, followed by generous allotments of federal aid to help secure votes in the next election. (Isn't that the stuff Bush is supposed to be good at? Look at his performance after the 2004 hurricanes in Florida, and the record amounts of federal aid provided (sometimes indiscriminately). So the problem here was... what? Not enough Repubicans left treading water?)

In any event, a lot of responsibility for disaster management should fall on state and local government. The federal government has assumed the role of assisting with large-scale disaster relief - in many cases taking the lead role - and with that assumption of power should come the responsibility of competent performance. But disasters should be managed by professionals in disaster management.

The Weakened Standard

David Ignatius quotes William Kristol:

"Almost every Republican I have spoken with is disappointed" by the administration's response to Katrina, Kristol told The Post's Jim VandeHei. "He is a strong president . . . but he has never really focused on the importance of good execution. I think that is true in many parts of his presidency."

If I may be completely unfair in my translation of that remark:

He is a strong president...

This seems to mean, "I agree with Bush's agenda."

but he has never really focused on the importance of good execution.

This seems to mean, "But he's completely incompetent." A CEO President who can't execute? The head of the Executive Branch of government who can't execute? You can't be more damning than that.

Kristol also previously weighed in on Bush's performance on Iraq while on the Daily Show - "He did drive us into a ditch" - while continuing to insist that Bush should be the guy we let attempt to drive us out. (Surprisingly, we still seem to be in the ditch.) Granted, some might argue that it isn't Bush who has failed so much as the effort to put Kristol's preferred philosophies into practice. But either way, it is high time to stop mincing around the facts, and to acknowledge the extent of the failure.

Say what?

The Washington Post leaves me scratching my head... It's not their fault, though, unless they misstated the position of "other Democrats".

On other matters, Democrats sent mixed messages as party leaders seemed to search for a consensus strategy. Some said Roberts should be held to a higher scrutiny because of the influence of a chief justice. "Look at [Earl] Warren and Rehnquist," said Sen. Charles E. Schumer (D-N.Y.), referring to two long-serving chiefs credited with moving the court to the left and right, respectively.

But other Democrats said the switch of Roberts to replace Rehnquist rather than O'Connor actually made his confirmation less significant because now it would be trading one conservative for another. Unlike Rehnquist, O'Connor was a decisive vote in many cases. "She has been the swing vote on so many of the freedoms" important to Americans, said Sen. Barbara Boxer (D-Calif.).

I wonder how much those "other Democrats" get taken for at three card monte.

Stupid Excuses

According to CNN,

Defending the U.S. government's response to Hurricane Katrina, Homeland Security Secretary Michael Chertoff argued Saturday that government planners did not predict such a disaster ever could occur.

But in fact, government officials, scientists and journalists have warned of such a scenario for years.

Chertoff, fielding questions from reporters, said government officials did not expect both a powerful hurricane and a breach of levees that would flood the city of New Orleans. (See the video on a local paper's prophetic warning -- 3:30 )

"That 'perfect storm' of a combination of catastrophes exceeded the foresight of the planners, and maybe anybody's foresight," Chertoff said.

Leaving aside the apparent abject ignorance of everybody in the Bush Administration over the vulnerability of New Orleans to a hurricane, isn't DHS supposed to be on its toes about possible terrorism? This disaster resulted from the failure of three levees. Weather aside, it never occurred to anybody in the Bush Administration or DHS that in a time of high water, a terrorist might use explosives to damage levees at key locations?

It's a constant stream of confessions of rank incompetence.

Education - One to Watch

The UK is experimenting in some troubled school districts with teaching pupils according to ability, not age. Funny, though - the concerns raised are not about the effects of making kids work below their ability, but of the potential embarrassment to older kids who end up in classes with their younger peers of similar ability.

Surrounding Yourself With "The Best People"

When Bush was elected, many deflected his inexperience by claiming he was excellent at delegating, and would surround himself with competent people. I was reminded of this the other day when I heard Mike Huckabee, governor of Arkansas, use the same line to defend Bush's appointment of Karen Hughes as the envoy in charge of promoting the nation's image in the Islamic world. He responded to questions about her qualification by asserting that she's bright and capable, and would surround herself with good people. And, of course, there's the bang up job Bush has done appointing "good people" to the Civil Rights Division of the Justice Department.

I guess, ultimately, the goal is to appoint lots of people who have no real qualification, but are also skilled delegators... and to hope that the people at the bottom of the organizational chart actually turn out to have sufficient competence to perform the tasks delegated down from the top. Still, I would have appreciated it had Bush made a slight exception, and appointed a qualified person to head FEMA. (But hey - he seems like a smart guy, and I'm sure that he has surrounded himself with....)

Go Ahead - Offend My Sensitivities

CJR Daily addresses self-censorship by the networks in relation to the catastrophe in New Orleans:

"The sanitation was unbelievable. The stench in there ... was unbelievable. Dead people around the walls of the convention center, laying in the middle of the street in their dying chairs where they died, right there on their lawn chair. They were just covered up in their wheelchair, covered up, laying there for dead. Babies, two babies dehydrated and died. I'm telling you, I couldn't take it."

Then followed an extraordinary exchange -- not included in the transcript of the interview on MSNBC's Web site -- well worth noting. Stewart mentioned that many of the images Zumbado had shot of the dead and dying "couldn't" be run on the air. Zumbado added that there was much more footage that he could have shot but did not, precisely because he knew it would never make it on the air.

I think in situations like this the media has an obligation to offend our delicate sentitivities, to motivate the public and our "political leaders" to prevent this type of thing from happening again.