Dysfunction, Unction, No Compunction

Further proof, as if any were needed, that the U.S. Senate is simply not doing its job

Sen. Richard Burr (R-N.C.) avoided question after question on Tuesday about why he's blocking a long-stalled judicial nominee who he previously recommended to President Barack Obama.

Burr said in July 2009 that Jennifer May-Parker had "the requisite qualifications to serve with distinction" as a nominee for the U.S. District Court for the Eastern District of North Carolina. Obama submitted her nomination to the Senate in June 2013, but she hasn’t moved since because Burr is withholding his "blue slip" to the Senate Judiciary Committee. The blue slip process is a courtesy, not a rule, honored in the committee that allows a home-state senator to advance or block a nominee. Fellow North Carolina Sen. Kay Hagan (D) has already submitted her blue slip.

HuffPost caught up with Burr in the Capitol and asked him why he's holding up May-Parker, who, if confirmed, would fill the longest-standing district court vacancy in the country. The North Carolina judicial seat has been empty since 2005.

***

An administration official who requested anonymity to speak candidly said the White House is just as perplexed as anyone about why Burr is unilaterally blocking his own nominee.

One thing that's a little unusual in May-Parker's case is that four years passed between the time that Burr recommended her and when the White House sent her nomination to the Senate. A source familiar with her nomination process, who also requested anonymity, said that administration officials and North Carolina senators spent those years going back and forth to find nominees on whom they could all agree. The White House finally vetted May-Parker and agreed to nominate her, expecting Burr's support. The GOP senator has been blocking her ever since.

What is the nihilistic gamesmanship nonsense? The President accepts a Republican Senator's suggestion for a nominee to the District Court within his state, only for the Senator to then block her nomination? It's right out of Lewis Carroll. Or, perhaps, I should say, Groucho Marx:



See why i went on a political sabbatical? And why I'm going back on one again?

Let's Hear it for the Man with the Gun!

Remember when Hawkeye Pierce was cool? A hero who disdained guns, looking on them as a confession of failure of imagination and of intellect. An attitude shared by the Doctor, in Doctor Who, by the way, whose occasional use of them generally indicates desperate measures indeed being called for.





And they are not alone in this attitude.

But in America, I'm afraid, we love our guns.

So much so that rather than regulate them, and instill a culture of same gun use, we are training our children to hide from mad gunmen like we were trained to cower against nuclear blasts:

For students across the country, lockdowns have become a fixture of the school day, the duck-and-cover drills for a generation growing up in the shadow of Columbine High School in Colorado and Sandy Hook Elementary School in Connecticut. Kindergartners learn to hide quietly behind bookshelves. Teachers warn high school students that the glow of their cellphones could make them targets. And parents get regular text messages from school officials alerting them to lockdowns.

School administrators across the country have worked with police departments in recent years to create detailed plans to secure their schools, an effort that was redoubled after the December 2012 shootings in Newtown, Conn. At the whiff of a threat, teachers are now instructed to snap off the lights, lock their doors and usher their students into corners and closets. School officials call the police. Students huddle in their classrooms for minutes or hours, texting one another, playing cards and board games, or just waiting until they get the all clear.

“They kept saying, ‘Lock your doors and keep everyone away from the windows,’ ” said Rebecca Grossman, a 10th grader at Watertown High School, outside Boston, where students have been forced to “shelter in place” three times this school year, a less serious version of a full lockdown.

Isn't that just bloody marvelous?

Now let me point a few things out, about our current toxic love affair with the gun.

First, I am not talking about gun owners who use them for hunting, or even recreational competition. I'm talking about people who are political activists, trying to force guns into every facet of American life, like the Open Carry Movement:

Some two dozen men and women from the gun rights group Open Carry Texas, armed with rifles and shotguns, sat outside a Dallas-area restaurant earlier this month while four women—members of Moms Demand Action for Gun Sense in America, a small gun control advocacy organization—ate lunch inside at the Blue Mesa Grill. The group posed for photos in the strip mall parking lot, brandishing their weapons and the American flag. After 15 minutes, they packed up their protest and headed to Hooters.

“It was very unsettling. It was very disturbing,” one of the moms explained two days later in a televised interview. The groups’ founder, Shannon Watts, said patrons were “terrified by what appeared to be an armed ambush.” The hashtag #gunbullies was born.

The incident is the latest headline-grabbing showdown involving open carry activists, who want the unconcealed carrying of firearms to be as normal as holding a cell phone. In groups armed with rifles and Gadsden flags, they’ve demonstrated at the site of President Kennedy’s assassination. They walk alone through state capitol buildings, and Home Depots, baiting police officers and frightening workers and ordinary citizens.

I'm also talking about the NRA which responded to the Sandy Hook shooting by calling for "a good guy with a gun" as the answer to "a bad guy with a gun. (That the argument had previously been made by Uncle Duke might have slowed down a less fanatical organization, but not the NRA.)

Second, the same judicial decision that found an individual right to keep and bear arms also found that the right was not absolute:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.26

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148–149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271–272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N. C. 381, 383–384 (1824); O’Neill v. State, 16Ala. 65, 67 (1849); English v. State, 35Tex. 473, 476 (1871); State v. Lanier, 71 N. C. 288, 289 (1874).

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment ’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

(District of Columbia v. Heller, per Scalia, J.)

And yet, any effort to apply these permissible regulations of guns, whether on the state or federal level, leads to swift retribution.

This even though, according to research published this year in the Law Enforcement Bulletin, conducted by two scholars employed by the Advanced Law Enforcement Rapid Response Training Center, in examining what the authors call "Active Shooter Events" from 1999-2013:

The dotted trendline shows a definite increase over the past 12 years. In fact, the number of events drastically increased following 2008. The rate at which these events occurred went from approximately 1 every other month between 2000 and 2008 (5 per year) to more than 1 per month between 2009 and 2012 (almost 16 per year). The authors’ tracking also indicates that this increased rate has continued into 2013—more specifically, there were 15 events. While it is possible that this increase is an artifact of the search strategy (perhaps, archiving of the news reports has improved in recent years), the authors believe that the observed rise represents a real increase in the number of events in recent years. Figure 2 shows the number of people shot and the number of people killed for each year. Here again the trend line shows a definite increase.

(To be fair, the authors call for, among other recommendations the sort of civilian training the necessity of which I am deploring.)

In short, the norming of guns and gun violence into every facet of society continues. It's like the mocking lyric from Aspects of Love: "Everybody loves a hero! Let's hear it for the man with the gun!"



Who am I to protest, after all?

Megan McArdle is, in Fact, Wrong About Everything

Congratulations to Jonathan Chait for demonstrating that this reliable axiom still holds true:



Yup, Chait's right; it's just what she titled her 2009 column. But she didn't really mean it, did she? Well, yeah:

Basically, for me, it all boils down to public choice theory. Once we've got a comprehensive national health care plan, what are the government's incentives? I think they're bad, for the same reason the TSA is bad. I'm afraid that instead of Security Theater, we'll get Health Care Theater, where the government goes to elaborate lengths to convince us that we're getting the best possible health care, without actually providing it.

***
So in the absence of a robust private US market, my assumption is that the government will focus on the apparent at the expense of the hard-to-measure. Innovation benefits future constituents who aren't voting now. Producing it is very expensive. On the other hand, cutting costs pleases voters this instant.

***
The other major reason that I am against national health care is the increasing license it gives elites to wrap their claws around every aspect of everyone's life. Look at the uptick in stories on obesity in the context of health care reform. Fat people are a problem! They're killing themselves, and our budget! We must stop them! And what if people won't do it voluntarily? Because let's face it, so far, they won't.

McArdle, in short, feels that Chait has defamed her by attributing to her views that she has publicly espoused in a column under her own byline.

Awesome. She wins the "Billy" for January:

The Senate is in Session Even When It Isn't

The transcript of the oral argument in NLRB v. Canning, in which the legitimacy of recess appointments made while the Senate is in pro forma sessions, at which no business is done, is not encouraging for the Obama Administration's position. Or, indeed, for future presidents, as well as the legitimacy of a century of governmental practice. From The Times:

Much of the argument concerned how to reconcile the text of the Constitution with more than a century of tradition.

Solicitor General Donald B. Verrilli Jr., representing the Obama administration, said presidents of both parties have made many appointments in breaks during sessions of Congress. He warned the justices not to “repudiate the constitutional legitimacy of thousands of appointments by presidents going back to George Washington.”

Justice Antonin Scalia responded by indicating that the text of the Constitution was more important than contrary practice.

He added that the practical consequences of a ruling against the administration’s position were unlikely to be significant. “You don’t really think we’re going to go back and rip out every decision made,” Justice Scalia told Mr. Verrilli.

Ah, Scalia. The practice cannot be used to illuminate the intent and the meaning of the text--clarifying the ambiguity between formally declared recesses and recesses in fact but not in name (that would be unprincipled, d'you see!), but the illegitimate decisions made by illegitimate appointees (because they were appointed consistent with the practice all the way back to Washington, and that tells us nothing since Congress can be summoned on a dime now), why, those must stand, because any other outcome would be impractical.

And, yes, we are talking about allowing the Senate to eliminate recess appointments without eliminating actual recesses:

But Justice Ginsburg said that position has far-reaching implications. “Your argument would destroy the recess clause,” she said. “Under your argument, it is totally within the hands of the Senate to abolish any and all recess appointments.”

Mr. Francisco said that was indeed the implication of his position. “The recess appointment power is a contingent one,” he said. “It arises only when the Senate chooses to trigger it by ending its session and beginning its recess. So the Senate always has the power to prevent recess appointments.”

What's interesting is that the Court seems to have a broad consensus on this issue, with Justice Kagan describing the Clause as a "historic relic" and Justice Breyer finding no historical evidence that the owed existed to allow the President to break a logjam. So the Senate can be in perpetual session--even when nobody's home.

Theater of Cruelty

Amanda Hess' essay Why Women Aren't Welcome on the Internet has justly received a great deal of attention, even from unlikely sources. (Imagine me posting a link to Douthat without snark!) A careful blend of statistical analysis, personal experiences--Hess's own and those of other female bloggers--she builds a strong case that the treatment women undergo has the effect of silencing all too many female voices.

Hess then suggests a civil rights response:

Federal civil rights law can punish “force or threat[s] of force” that interfere with a person’s employment on the basis of race, religion, or national origin. That protection, though, doesn’t currently extend to threats targeted at a person’s gender. However, other parts of the Civil Rights Act frame workplace sexual harassment as discriminatory, and requires employers to implement policies to both prevent and remedy discrimination in the office. And Title IX of the Education Amendments of 1972 puts the onus on educational institutions to take action against discrimination toward women. Because Internet harassment affects the employment and educational opportunities of women, laws could conceivably be amended to allow women to bring claims against individuals.

But it’s hard to get there from here. As Citron notes, the Internet is not a school or a workplace, but a vast and diffuse universe that often lacks any clear locus of accountability. Even if online threats are considered a civil rights violation, who would we sue? Anonymous tweeters lack the institutional affiliation to make monetary claims worthwhile. And there is the mobbing problem: One person can send just one horrible tweet, but then many others may pile on. A single vicious tweet may not clear the hurdle of discriminatory harassment (or repetitive abuse). And while a mob of individuals each lobbing a few attacks clearly looks and feels like harassment, there is no organized group to take legal action against. Bringing separate claims against individual abusers would be laborious, expensive, and unlikely to reap financial benefits. At the same time, amending the Communications Decency Act to put the onus on Internet platforms to police themselves could have a serious chilling effect on all types of speech, discriminatory or otherwise.

Citron admits that passing new civil rights legislation that applies to a new venue—the Internet—is a potentially Sisyphean task. But she says that by expanding existing civil rights laws to recognize the gendered nature of Internet threats, lawmakers could put more pressure on law enforcement agencies to take those crimes seriously. “We have the tools already,” Citron says. “Do we use them? Not really.” Prosecuting online threats as bias-motivated crimes would mean that offenders would face stronger penalties, law enforcement agencies would be better incentivized to investigate these higher-level crimes—and hopefully, the Internet’s legions of anonymous abusers would begin to see the downside of mouthing off.

Now, this has the potential to raise all kinds of First Amendment problems, as even Hess and the legal scholars she cites acknowledge, and, depending on the breadth of the definition such a law could implicate the some of the concerns I expressed years ago about the MacKinnon-Dworkin anti-pornography civil rights law.

But as Hess and the legal scholars upon whose work she draws suggest, the analogy to workplace discrimination provide a template that seeks to limit the reach of the law to protect the free exchange of ideas, while protecting the right of women to participate in equal terms online. The limitation of the hostile work environment doctrine to speech that constitutes a verbal act--that is, not the expression of ideas, but the functional equivalent of an act, seeks to respect the boundaries drawn by the First Amendment. Any law that tries to regulate online speech will have to be especially carefully drawn to respect that demarcation. And I am especially concerned by a criminal law approach, especially in view of the very lack of internet savvy-ness of many law enforcement agencies detailed by Hess. Still, Hess has made a strong case that the alternative--doing nothing--will perpetuate a greater degree of censorship, and an especially invidious kind: silence by intimidation.

Time, Time, What Has Become of Me?

Proof that Brooklyn truly is a borough where anything can happen, the above picture was taken by my esteemed fencing coach.

But no, I haven't been traveling.

So, it's been a little sparse around here in terms of posting, no? Apologies all around;2014 is shaping up to be a year of much change, which will, inevitably, give my much to write about here, but which is still in the planning stage.

Up first, Phineas at Bay is just about finished, and I anticipate publishing this year. There will be a lot more about that in the weeks ahead, as the launch date is fixed, and then approaches. In fact, my online presence will probably focus much more on the book around that time, and hopefully those who come for theological matters, law and gratuitous Who-age may find their patience tested. I hope you stay; we're in a legal/political silly season now, but more interesting things will soon come, and I hope to have some things to share in all those areas.

(Photo by Judy Cummins)

In the Bleak Midwinter

So here's the thing about clinical pastoral training--it's stark. Moments of heartbreak mixed in with stretches of tedium, and every now and again a moment of inspiration--wait; that's too Hallmarky. A moment when God grabs you by the scruff of the neck, and shakes the complacency out. That's a little closer.

A moment where, for example, a patient who is slowly running out of options, told me that she was not worrying about dying--that she figured that, when it came, there would not be too much for her to do, so she would let it go.

That rings true to me, and shows a kind of courage I only hope I have when my own time comes.

The courage I see every day I go astonishes me.

It's the sort of thing that makes the bleak midwinter less bleak--a gentle, practical response to the Great Fear--and one that cuts that great fear down to size.

So what has this got to do with Holst's setting of Christina Rossetti's poem? I'm not sure; but recently, when I needed an image of the simple light of goodness flickering without expiring, despite the dark, that's what came to mind. No great vaunting claims; no supernal word spinning. Simple words, simply sung, with conviction and truth.

A gentle, pragmatic acceptance that we can do only that which we can do, in the face of the great mysteries and experiences of life, and trust that the result will be a worthwhile thread in the great tapestry.

A Happy Epiphany, one and all.