bookofdays

2000

Uh-huh.

As we observe that number, remember also the tenfold more dead civilians.

Some links that fit these reflections:

• I'm late on this, but Maureen Dowd rules in her Miller piece.  Anyone who starts referencing Thackeray, on her  way to slicing Judith Miller to ribbons, demonstrates true class. Read it via Steve Gilliard, if only for the photo.
• It's not enough that they're stressed and getting shot at: now they get to lose it all at the table.
• Eric Schmitt gives the most concise expression to what we're all thinking when Bush/Rice start talking new war: With who?
• Via the Rage Diaries: Data bad! Data confuse government!
• Debra Dickerson's review in Salon of Kayla Williams' book contains this concise, extraordinary passage:

The military is full of diamond-in-the-rough kids like her who might have made a few mistakes but still know that there are uncharted worlds inside them. They know they were destined for a polyester uniform; making a break for the GI's outfit, rather than the burger flipper's -- or, God forbid, the inmate's -- is a daring demand to be taken seriously, to be invested in, to be challenged. To be seen. For poor or lost kids, joining up is an escape attempt, a prison break. Our all-volunteer military remains tenable only because these strivers somehow know that hot marches in the sun and nights spent sleeping in a foxhole will open the door to whatever's buried inside their dreams.

Now that it's Tuesday, I'll wrap up with what's frosted me since Friday  morning -- when I saw George Freeman, a lawyer for the New York Times, on Friday, try  to make Judith Miller's case an integral part of  a lecture on the legal concept of reporter's privilege.the pixie dust Freeman tried to toss in our eyes.

He allowed that Miller's work did not present the best argument for a shield law. "Would I have wanted a different set of facts in this case?" he said, spreading his arms wide. " Of course."

As part of the wider discussion, about how the concept of reporter's privilege involved, we of course discussed the issue of the inclusion of bloggers; having just written the post that appears below, I quoted it to him and suggested blogs were also a "weapon in the defense of liberty." He responded like  lawyer/politician: you'd never get the Senate to support that, he said.

Then Freeman proceeded to give a perfect, party-line defense of Miller. He said that Lewis Libby's original waiver, whose signing was mandatory as a condition of the White House, couldn't  be believed as sincere until the two of them talked -- and that recent events, including the negotiations that led to her release. were a sign that Fitzgerald was becoming "pretty desperate."

He stuck by Miller's story that she had "discovered" her June 2003 notebook just recently; a friend said later that she'd not been able to ask him about reports (by Murray Waas,  and now others) others that Miller only admitted that meeting existed after seeing Secret Service logs that proved she was there.

His politics came clear, and predictable enough, from his opinion of the leak case itself, which mimicked Richard Cohen's = not much of a crime, so he's going to create a conspiracy about a non-crime.  I so wanted to ask him about the Daily News' confirmation of Miller's  "charter membership" in the White House Iraq Group, but I'd used up my question time talking about free speech for blogs.

Now I join the rest of you in waiting to hear how many of the  powerful men, the suns to which Miller's flower turned, are placed under indictment - or whether the administration will decide to raise the flag of secrecy over the whole thing.

and they see only their own shadows

The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. These indeed have been historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in our own history abundantly attest. The press in its connotation comprehends every sort of publication which affords a vehicle of information and opinion.
        -- Justice Charles Evans Hayes, Lovell v. Griffin, 1934

In the height of the Great Depression, someone had an idea about whether  bloggers should be considered journalists. Not that Justice Hayes, born in 1882, would ever have conceived of the Web, let alone a Web log, as he considered whether the First Amendment applied to broadsheets put out in the city of Lovell, California.

I've been watching elite journalists muse soulfully on the question, "Are bloggers journalists?" for what feels like a sickeningly long time, but is probably only since this past February, when the National Press Club convened its first panel on the question in the aftermath of the Jeff Gannon scandal.

John Aravosis, had investigated a fellow named James Guckert, who had been allowed into the White House press corps under the name Jeff Gannon. Aravosis found out, among other things, that Gannon had advertised his services as a male prostitute online and that his news service, Talon News, was funded directly by the Republican Party (rather like those 18th-century news broadsheets Andie Tucher spoke of in that August lecture).

So with worried faces, a panel that included Gannon,  Congress Daily's John Stanton, former Philadelphia Inquirer staffer Ana-Marie Cox, now running an online column, mused soulfully on whether people like Gannon, or even like Cox, should be taken seriously, or seriously marginalized. (Aravosis, whose work exposing Gannon was the kind of digging Sree likes to talk about, wasn't invited onto the panel, though he spoke from the audience.)

The well-paid journalists in the room were worried, perhaps justly, about this blending of fact and opinion, which depending on who you read (just as with print magazines) can be crude or well crafted, thoughtful or not, original or lazy. These conversations seemed, at that point, kind of theoretical.

Not any more, in the wake of a journalism scandal far more explosive than Jeff Gannon and the resulting talk of a federal shield law, including testimony before Congress on the part of the very journalist who's at the center of the scandal. And the Press Club was at it again, on the same day as some of its  members were asking: do bloggers deserve this shield?  And the panel, this time including  Jane Kirtley, a professor of media ethics at the University of Minnesota, and two TV journalists, agreed "probably not." All of it part of "National Free Speech Week, which may define irony, as noted by Roxanne .

Suddenly we're wondering what sort of writer gets First Amendment protection, and of what kind. And that brings me - briefly, I promise - back to the Supreme Court.

burning down the House

Q. Do you have any recollection about anything that he said?
A. Oh, yeah, he said they had been into an argument and he slapped her and she fell and hit her
head and it killed her and he didn’t mean for it to happen.
Q. Was he intoxicated?
A. He was drinking real heavily, yeah.
Q. Was he emotional?
A. Very.
Q. All right. How very is very?
A. Well, he was crying and just all to pieces.
Q. All right. How long had he been there before he told you about this incident?
A. Maybe 10 or 15 minutes, not real long.
Q. Did he say what they were arguing about?
A. He had wanted to go to a dance or something or another and was wanting to go somewhere
else. That is what they got into an argument over.
Q. What did you do when you heard Little Hube say he hit his wife and she died?
A. I freaked out and run him off.
Q. You freaked out?
A. I freaked out and ran him off.
Q. Okay. After the party did you tell anybody about this?
A. Not that night. The next day I went to Union County and tried to talk to some law people
and —
Q. Would they listen to you?
A. Went to Union County to the Sheriff’s Department. I tried to speak to the Sheriff but he was
real busy. He sent me to a deputy. The deputy told me to go upstairs to the courtroom and
talk to this guy. I can’t remember his name. I never did really get to talk to anybody.
Q. Tried to tell them?
A. Yeah.
Q. Did you talk to your mother about it?
A. A little later on there wasn’t a whole lot said about it, but she was the one that took me to the courthouse.
Q. Your mother went with you to the courthouse that day?
A. She drove me. I didn’t have a vehicle.
Q. Did you know Carolyn Muncey?
A. Yes, sir.
Q. Are you aware of whether or not Little Hube had ever abused her or beat on her?
A. She was constantly with black eyes and busted mouth.

Testimony of Kathy Parker, Nashville resident, testifying to a federal district court in Tennessed on behalf of Paul House, who is on death row for Carolyn Muncey's murder.

Is  this a Supreme Court preview, or an episode of CSI?

Well, it's House v. Bell, which turns out to be both.

Not that I've ever seen that show, actually, but I thought I'd be wrestling more with precedents than with blood spatters, missing or planted evidence, semen-stained jeans, or a theory that an entire rape-murder can be committed, in a rural area without a car, inside of 50 minutes. I didn't know that Paul Gregory House, who has been on death row since 1986, has multiple sclerosis -  of the most advanced kind, which may kill him before anyone tries to strap him down for the lethal injection or gas chamber.

It's all about the DNA, of course.
It's all about the revolution in our thinking about the death penalty thanks to the careful work of attorneys, all around the country, who have re-opened investigations that were done sloppily, or ineffectively presented, the first time.

And it's all about politics. Paul Gregory House was 2/3 of the way to exoneration when 8 of 15 appeals court judges declared he was probably innocent and he deserved a new trial. But a year later, when they could have made it official, four of those 8 judges, appointed by Democrats, had been replaced  by George Bush. Their replacements said no, he still hadn't established reasonable doubt - despite DNA evidence, despite eyewitnesses, despite affidavits that shot down, or at least seriously questioned, the forensic evidence offered by the prosecution.

And it's all about the word "no."

Specifically the "no" in the following paragraph from Sandra Day O'Connor:

a petitioner must show that, in light of the new evidence, it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt. The focus on actual innocence means that a district court is not bound by the admissibility rules that would govern at trial, but may consider the probative force of relevant evidence that was either wrongly excluded or unavailable at trial. The district court must make a probabilistic determination about what reasonable, properly instructed jurors would do, and it is presumed that a reasonable juror would consider fairly all of the evidence presented and would conscientiously obey the trial court's instructions requiring proof beyond a reasonable doubt.

Schlup v. Delo, the 1995 Supreme Court opinion quoted above, offered both hope and frustration to defendants with newly discovered evidence, as it instructs judges to imagine themselves that Platonic "reasonable, properly instructed juror."  In its poetry, it's  also proved a Rorschach blot, taken up by  both sides. And to Judge Dan Boggs, a grizzled veteran of the Sixth Circuit, "no reasonable juror" means exactly that: not a single juror. Basically, the Sixth Circuit panel demanded that every single piece of evidence put out by the prosecution be directly refuted  before it could order a new trial.

Is this all too arcane? Should I get back to the blood?

miss run amok

I know, I  know: just shy of two months. But what a day.

I'll start by quoting  the only astrologer I pay attention to, who told me last week:

I'm afraid I had to name you "Underachiever of the Month" for September, Aries. You didn't quite succeed at wrestling your frustrations into submission, though you had the power to do so. You also failed to cash in on much of the great potential you had for smashing injustice, exposing fakery, and toppling the rotting status quo. That's the bad news. The good news is that some of your missed opportunities will become available again in the coming week. Make up for lost time, please.

I've been spinning so hard (and sometimes falling) in my first weeks of actual reporter training (chronicled in the other blog: link to your left) that I've not dared think about writing here. Writing unrelated to one of my 3 deadlines a week? Time not spent either on my beat (Astoria, Queens) or in class or writing any number of quickly generated pieces that will then be torn to shreds, or beginning to dream  my masters' project?

I knew I wanted to come  back here after Friday night, after a screening of Good Night and Good Luck, followed by a panel in which George Clooney, the director, shared the stage with his producer, with Victor Navasky, and a CBS correspondent whose name I don't remember. The key question posed by Nick Lemann, who moderated, was "If we had McCarthy now, what would the  media do?" After the producer and TV girl chirped that the media would of course step up, Nsvasky weighed in.

He noted a line in the film in which Murrrow says to his boss, "Dissent is not disloyalty."  He then said: "In 2001, John Ashcroft named dissent as disloyalty and the media gave him a free ride. Dick Cheney still names dissent as disloyalty, and the media gives him a free ride. George Bush -- " At this point the applause drowned out his completion of the trope.

Clooney, who came next and last, said simply: "What he said. The one with the beard."

A funny line in itself- to use a visual  image as he applauds  Navasky - coming from an auteur of such good looks that  Anthony Lane once called him "human catnip" .

From journalistic heroes like Edward R. Murrow, we now get to move on to someone who soon, I think, will finallyget to cast off the ill-fitting role of journalist.

I mean, of course, Judith Miller, exposed ever so gently today  in the pages of her own newspaper.

I won't bother to try to recapitulate all the critiques and deconstructions by far better bloggers, shooting you over to Jane Hamsher,   Digby and Greg Mitchell at Editor and Publisher.  I actually thought that read carefully, the piece was just as damning as I hoped, and bespeaks a rage that's beginning to boil among people who had to work  alongside Miller.

"She has to be fired!" Cynthia Cotts said to me over lunch today. We'd not got together to talk about Judith Miller (I'm privileged to work with her on my master's project), but Cynthia covered the Times extensively during her six years writing the Press Clips column for the Village Voice, and was full of thoughts. 

We discussed what was, for both of us, one of the most astonishing tidbits in today's long piece (emphasis mine):

In the year after Mr. Engelberg left the paper in 2002, though, Ms. Miller operated with a degree of autonomy rare at The Times.

Douglas Frantz, who succeeded Mr. Engelberg as the investigative editor, said that Ms. Miller once called herself "Miss Run Amok."

"I said, 'What does that mean?' " said Mr. Frantz, who was recently appointed managing editor at The Los Angeles Times. "And she said, 'I can do whatever I want.' "

......

In two interviews, Ms. Miller generally would not discuss her interactions with editors, elaborate on the written account of her grand jury testimony or allow reporters to review her notes.

On July 30, 2003, Mr. Keller became executive editor after his predecessor, Howell Raines, was dismissed after a fabrication scandal involving a young reporter named Jayson Blair.

Within a few weeks, in one of his first personnel moves, Mr. Keller told Ms. Miller that she could no longer cover Iraq and weapons issues. Even so, Mr. Keller said, "she kept kind of drifting on her own back into the national security realm."

Although criticism of Ms. Miller's Iraq coverage mounted, Mr. Keller waited until May 26, 2004, to publish an editors' note that criticized some of the paper's coverage of the run-up to the war.

The note said the paper's articles on unconventional weapons were credulous. It did not name any reporters and said the failures were institutional. Five of the six articles called into question were written or co-written by Ms. Miller.

fear up

Some of the worse that happened that you don't know about, ok. Videos, there are women there. Some of you may have read they were passing letters, communications out to their men. This is at Abu Ghraib which is 30 miles from Baghdad [...]

The women were passing messages saying "Please come and kill me, because of what's happened". Basically what happened is that those women who were arrested with young boys/children in cases that have been recorded. The boys were sodomized with the cameras rolling. The worst about all of them is the soundtrack of the boys shrieking that your government has. They are in total terror it's going to come out.

It's impossible to say to yourself how do we get there? who are we? Who are these people that sent us there?

I'm two weeks past the day I first excerpted this ,from a 2004 speech by Seymour Hersh: two weeks since the guys in power   ignored  the deadline for turning over those images.

What have I  been up to since? Closing out the summer term, on two campuses -- I couldn't have asked for a better group of students, or departments more supportive -- and beginning to prepare for the next step, including starting the previously promised/threatened second blog, Crayons to Chaos. From now on, I'll be posting to both of these  -- though this, below, is likely my last to be quite this huge and discursive. 

Meanwhile, the noise on our favorite subjects has been kind of deafening.

Today alone we have the news that Guantanamo is being downsized, with hundreds of traumatized detainees being shipped home (rendered? it's actually unclear), in what Jeanne points out is a tacit admission that most of them were not the "worst of the worst" as claimed.  And we have the President, from his estate behind the Tumbleweed Curtain, trying to hold on tight to his favorite phrase: " the Global War on Terror. "

Speaking to the august  (??)  American Legislative Exchange Council in Grapevine, Texas,   he stomped on a few graves in order to emphasize it:

"We're at war with an enemy that attacked us on September the 11th, 2001," Mr. Bush said in his address here, to the American Legislative Exchange Council, a group of state legislators. "We're at war against an enemy that, since that day, has continued to kill."

Mr. Bush made a nod to the criticism that "war on terror" was a misleading phrase in the sense that the enemy is not terrorism, but those who used it to achieve their goals. In doing so, he used the word "war," as he did at least 13 other times in his 47-minute speech, most of which was about domestic policy.

Why did he feel the need to do this now?

Because everyone else, from Cheney to  Rumsfeld to various secretaries and under-secretaries, have tried to ditch it. They'd instead fit a longer, klugey-er phrase into their mouths:  “a global struggle against violent extremism.”  Numerous commentators more exalted than I, from George Packer in the New Yorker to Juan Cole to Sidney Blumenthal, have already deconstructed this to great effect, as has Jon Stewart .  Bush, of course, hated it -- perhaps sensing what Packer says so succinctly:

The Administration is admitting that its strategy since September 11th has failed, without really admitting it. The single-minded emphasis on hunting down terrorists has failed (“Hearts and minds are more important than capturing and killing people,” Gregson said). The use of military force as the country’s primary and, at times, only response has failed, and has stretched the Army and the Marines to the breaking point. Unilateralism has failed. “It’s not a military project alone, and the United States cannot do it by itself alone,” Douglas Feith, the Under-Secretary of Defense for Policy and a leading advocate of going it alone with military force, said on his way out the Pentagon door and into private life (good luck, fellas!).

Bush hates hard truths, even when spoken by his own flunkies.

So even when Shrub's resident hawks try to introduce a little reality-based language into their thinking zbout foreign policy, they bow to the master of the big political frame, nonevermind what it does to their efforts to appear sane to the rest of the world. (Fat chance, with Bolton at the U.N., I hear some of you whispering.) No doubt some of this confusion is due to the message-master Rove being a bit preoccupied: the cacophony is a little overwhelming.

But I'm here to say Shrub can have his simplicity. All he needs to do, all they need to do, is -to  just change one consonant. They wouldn't even have to stop minting all the convenient GWOT medals they give folks who serve in both Iraq and Afghanistan, two for the price of one.

Of course, it'd require a little honesty, too.

the legacy of samson

The news this morning of the bombing at Sharm-el-Shaikh  was bracing, if unsurprising in some ways. Still, that resort did feel a refuge during my too-brief time in that part of the world ( I'll post photos if I can later). Fot good solid analysis and a roundup of the commentary, the best come as usual from Billmon.

And today, Monday, Dan of the Christian Science Monitor writes of a "jihadi subculture":

The culture of Islamist suicide bombers is becoming more commonplace, as is the defining of civilians as "enemies."

Even in the wave of Islamist terror attacks that destabilized Egypt for much of the 1990s, suicide bombers weren't used. Now the country has seen two major attacks of this kind in eight months, with the latest death toll now at least 88.

What concerns counterterrorism experts is that tactics that once prompted fierce ideological debates within radical circles -- suicide and attacks on civilians are both classically defined in Islam as sins -- are now more likely to be embraced by young men. A decade or two ago, Muslim males might have been willing to take up a rifle and risk death fighting against the Soviets in the mountains of Afghanistan, but many would have balked at making the ultimate sacrifice or at blowing up civilians in a Moscow train station.

Still, I think it's still not useless to post this excerpt of  my crazy novel. If you ever needed to convince someone that that Islam has been hijacked as firmly as Christianity by its fundamentalists, this might give you a little ammunition.

I still never conceived that a project I've been nurturing for so long would be so fscking timely.

----------------

"While we are bidden to place all our faith and trust in God, the rabbis nevertheless deduce from the language of the Torah itself that we should be active in improving and preserving the health of the body . . .Just as we are prohibited from taking the life of another, we are also prohibited by the Torah from taking our own life, which is God-given, and anyone who commits suicide is deemed a murderer and is not to be buried in a Jewish cemetery."
— Rabbi Eliahu Shalom Ezran,  spiritual leader of Magain David Sephardim Congregation, San Francisco

About suicide, the Holy Qur’an states clearly: ‘Do not kill yourselves, for surely Allah is Compassionate to you’ (Qur’an, 4:29), ‘Do not cast yourselves into destruction by your own hands’ (Qur’an, 2:195) and ‘No soul can die except by God’s permission’ (Qur’an 3:185). An Islamic objection to any form of suicide (rational or irrational) is that the motive which prompts individuals to take their own life is contrary to the divine prerogative over human life….  In theological and philosophical reasoning, suicide has been considered for centuries an unethical act. What is clear is that suicide has remained a religious taboo in the monotheistic faiths of Judaism, Christianity and Islam.

-- G. Hussein Rassool, University of Sao Paulo, Brazil

Jerusalem, of course, one of the few places frequently associated with suicide in the minds of even non-suicides: some will likely think first of headlines about the ill-named “suicide bombers.”
Like the FBI agents who zeroed in on a pair of Muslim teenage girls in New York City and deported them -- in part, for mentioning suicide in an Islamic chat room on the Internet. (They should have hired me as a consultant. Show me, I might have told them, a sixteen-year-old girl who’s not intrigued by suicide and I’ll give you five bucks.)

But I digress: neither of those girls was from anywhere near Jerusalem.

Jerusalem, the tourist brochures assure us, is sacred to three great religions. More  like three branches of a family, drunken cousins in a multi-tiered bloodthirsty dynamic that’s rather Shakespearean, for the number of bodies left on the floor.  Adherents of all three faiths have crossed swords both literally and figuratively for so many generations, some sculpting in white stone the tragedy of Temple Mount, that one can only find ironic that Judaism and Islam share with Christianity (see the Jesus option, above) similar canons 'gainst self-slaughter. They also share the same mirror-image flirtation with martyrdom – and  a not-quite-death-defying obsession with Jerusalem.

The two were paired, Jerusalem and suicide, almost from the beginning, especially in early Jewish writing – the Old Testament, the early Talmud, and those sexy and violent books excluded from the canon as apocrypha – especially the 5 books of Maccabees, some of which I’ll save for the next  guidebook (Special Edition: Masada.)

Of the five suicides in the Old Testament, the first to take place in Jerusalem is also among the most spectacular: Samson, who pulls down the walls of the First Temple, to die together with the same Philistines whose victory had led to the suicide of Saul. Judges 18:30 sings: the dead which he slew at his death were more than they which he slew in his life. Get that? He died so that the Philistines would die too, even if his temple would be destroyed with him, centuries before Islam was born --  millennia before its good name would be smeared with an epidemic of suicide-homicides.

SCOTUS seat: the godfather rewards

Speaking of  cut-rate Cosa Nostra operations (see end of previous post), the new SCOTUS nom fits breathtakingly into the pattern. Digby (as usual) is on the trail:

In case anyone is wondering if Roberts really is a partisan hack or not, Jeffrey Toobin's book "Too Close To Call" sheds some light on that subject:

The president's first two nominations to the United States Court of Appeals for the District of Columbia curcuit --- generally regarded as the stepping-stone to the Supreme Court --- went to Miguel Estrada and John G Roberts Jr., who had played important behind-the scenes roles in the Florida litigation.

"Some day, and that day may never come, I will call upon you to do a service for me. But, until that day, accept this justice..."

And just when I thought I could get away with a completely civilian post, I learn this: Roberts was one of the D.C. Circuit judges denying any rights on the part of Guantanamo detainees -- even when they're citizens.  The implications may dwarf even Roe in urgency.

I'm otherwise a grading machine today, so I can't spend much time expressing my exasperation at usually-reasonable folk like Jeralyn at TalkLeft  that he seems "confirmable" and that they plan to "wait and see." Let alone the chorus of the so-called liberal media useful links from  Brian at  SCOTUSblog and here from  Jessica at Feministing). Lindsay has a much better directive for Dems and advocates alike.

Or, to import another succinct and important declaration:

                I call bullshit

...On the argument that John Roberts isn’t anti-choice cause he was “just a being a lawyer” when he said Roe should be overturned.

How about the fact that his wife is the former Executive Vice President of Feminists for Life?

And how comfortable are you with a nominee who has the support of Operation Rescue?

looking for (a) justice

As I started writing a different post, the news came over the radio: a Supreme  Court retirement. But not Rehnquist, which would have been bad enough, since any vacancy allows for one of the Top Neocon Suspects to be put through. But no, it's the worst. It's Sandra Day  -- the swing vote.

God knows I've held enough against her -- not least her role in Bush v. Gore, when she's described by Vanity Fair as "overheard expressing her dismay [on Election Night] over Gore's apparent victory":

"This is terrible," she exclaimed. She explained to another partygoer that Gore's reported victory in Florida meant that the election was "over," since Gore had already carried two other swing states, Michigan and Illinois.

Moments later, with an air of obvious disgust, she rose to get a plate of food, leaving it to her husband to explain her somewhat uncharacteristic outburst. John O'Connor said his wife was upset because they wanted to retire to Arizona, and a Gore win meant they'd have to wait another four years. O'Connor, the former Republican majority leader of the Arizona State Senate and a 1981 Ronald Reagan appointee, did not want a Democrat to name her successor. Two witnesses described this extraordinary scene to Newsweek. Responding through a spokesman at the high court, O'Connor had no comment.

(Thanks to Digby for the extended quotation.) O'Connor was viewed as  "emotionally fixated on stopping a recount" -- because she  knew she would want to retire! Still, in the years since she said that she's been an important bulwark in stemming the damage from Bush v. Gore.

Her vote has been crucial in so many of the SCOTUS rulings we've counted on in this administration: protecting choice in Planned Parenthood v. Casey, decriminalizing private sex acts between consenting adults in Lawrence v, Texas,  recognizing the basic civil rights of Guantanamo detainees in Rasul v. Bush. SCOTUSblog, which is worth checking every five minutes right about now, notes a few:

These are among the cases in which Justice O'Connor's has been the decisive vote or opinion, and in which a more conservative Justice might well vote to overrule the governing precedent. (Post in progress. Please suggest additional cases.)

Note: Because most Justices consider stare decisis a more serious obstacle in cases of statutory construction, those cases (e.g., the Davis and Jackson Title IX decisions) might be more secure, even if Justice O'Connor's replacement would not have agreed with her as a matter of first impression.

McCreary County v. ACLU (2005) -- Ten Commandments displays

Jackson v. Birmingham Board of Educ. (2005) -- Title IX Liability for Retaliation

Rompilla v. Beard (2005) -- standard of reasonable competence required on the part of defense counsel by the Sixth Amendment

Johanns v. Livestock Marketing (2005) -- assessments for government speech

Smith v. Massachusetts (2005) -- double jeopardy

Small v. United States (2005) - felon firearm possession ban doesn't cover foreign convictions

Tennessee v. Lane (2004) -- Congress's Section 5 power

McConnell v. FEC (2003) -- campaign finance

Grutter v. Bollinger (2003) -- affirmative action

Mitchell v. Helms -- direct aid to religious schools

Stenberg v. Carhart (2000) -- "partial-birth abortion" ban

Davis v. Monroe County Board of Educ. (1999) -- recognizing school district liability under Title IX for student-on-student sexual harrassment

Schenck v. Pro-Choice Network (1997) -- injunctions against abortion-clinic protestors   

Morse v. Republican Party (1996)

Zadvydas v. Davis

Brentwood -- state action

Hunt v. Cromartie -- race-based redistricting

Rogers v. Tennessee -- "judicial" ex post facto

(UPDATE: For those with a subscription or willing to sit through a quick Absolut ad, Salon has a list with more detail, as well as an article that explores possible scenarios -- quoting Jonathan Turley, a constitutional law professor at George Washington University Law School, as saying "It's going to be a long, hot summer." And one reads with a grimace references Noah Goldberg's thoughtful piece on the front page of the Times Magazine, "God's Country?", which speaks explicitly of the "O'Connor compromise" on church-state issues.)

And as Nina Totenberg just said on NPR. at 75 she's been "at the top of her game intellectually." But her husband is desperately ill, and she's making the kind of decision women who are responsible for their families do.

Speculation about her replacement already includes Alberto Gonzales, about whom I feel I have written as much as I can stand (here's my final stand on the eve of his confirmation hearings), seen by some nervous folks as ethnically appropriate and adequately vague on abortion. The thought of someone who cut his teeth trampling the constitutional rights of Texas' death row, going on to solicit opinions that could provide legal cover for torture becoming a Justice makes me physically ill.

Though in checking referrers just now, after the first time I threw up my response, I found someone searching for "Supreme Court" and "Royce Lamberth." Now that's an intriguing prospect, given that Lamberth has been the judge demanding justice for the plaintiffs in Cobell v. Norton.

Bush just issued a quick list of vague concepts about a replacement and shot out a demand for "a fair vote."  If there was a need for the mother of all filibusters, any set of "extraordinary circumstances," this is it.

The post I was going to write was about Maher Arar, who wants the U.S. officials who kidnapped him and shipped him to Syria to be subject to Canadian criminal charges. The extradition battle alone will dominate the headlines, or should.

Meanwhile, Arar's suit against Gonzales and John Ashcroft may ultimately come to the Supremes this year; so may the ultimate constitutional challenge to the so-called Defense of Marriage Act  and various challenges to the Patriot Act.

SCOTUSBlog gives this useful list of upcoming cases:

No. 04-623, Oregon v. Ashcroft – assisted suicide
No. 04-1084, Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal – religious use of drugs
No. 04-1152, Rumsfeld v. FAIR – military recruiting on campus and gay rights
No. 04-1144, Ayotte v. Planned Parenthood – abortion parental consent
No. 04-1244, Scheidler v. NOW – abortion protests

Given that last, and O'Connor's outstanding role in Casey, NARAL has plunged into the fray, and MoveON has a new ad (quicktime link) that focuses on Schiavo (which seems odd to  me). The games have begun, indeed -- or rather, La commedia riprendere.

I'll let Arar have the last word for now:  his question applies to so many of the questions that the Senators looking at the new justice need to keep in mind.

"Are there any controls on these people?" he asked, referring to authorities. "Is this the way to fight
terrorism -- by abolishing due process, by abolishing justice?"

but I can't spell the word surprize

We were definitrely overdue for a blog thing -- rhis one courtesy of the BBC! Thanks to Liz, who is far cooler than I, though her resuts showed her as a fellow word geek. Proof: she's spending the summer in my other home town, San Francisco. Go take the quiz and let me know how it came out?

You are a Linguistic Thinker
		Linguistic thinkers: Tend to think in words, and like to use language to express complex ideas. Are sensitive to the sounds and rhythms of words as well as their meanings.
Like linguistic thinkers, Leonardo made meticulous descriptions in his journals. He also made an effort to learn Latin - a foreign language		Other Linguistic Thinkers include William Shakespeare, Sylvia Plath, Anne Frank Careers which suit Linguistic thinkers include Journalist, Librarian, Salesperson, Proof-reader, Translator, Poet, Lyricist

How would other people score?  Can you imagine friends or family members who might think differently to you?

the snow globe of liberty

Fighting tears, she fell silent, staring at the shelf of souvenirs her family had sent back over the years: a big apple, a snow globe of the twin towers, a Statue of Liberty.

That's the last line of Nina Bernstein's follow-up piece on Tashnuba Hayder, one of the two girls I first wrote about in April, when I first learned they'd been detained on suspicion of being suicide bombers. She's since been deported to Bangladesh, where her mother begged to bring her for a "voluntary departure," rather than suffer her daughter's continued detention in a juvenile facility:

With no money for a home, Tashnuba and her mother, baby brother and little sister, Tamana, were to share an aunt's bed at her grandmother's apartment, now occupied by nine people.

For Tashnuba and Tamana, an American citizen who speaks only English, more education may be unaffordable, her mother said. Even Tashnuba's piety was challenged. Veiling is taboo among her relatives, and few Dhaka mosques allow women.

While ending with this heartbreaking portrait of a girl whose anger at the U.S. doesn't prevent her from wanting desperately to see her beloved New York again, Bernstein first, finally, lays out the story of how the FBI actually came to focus on her -- and it's not so terribly far from what I speculated back then.