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June 30, 2007

Fifty! Nifty!

don't usually blog about personal stuff, but this seems noteworthy. Fifty years ago today, on June 30, 1957, my parents, Joan and Jim Muller, were married. They're still going strong.

Happy Anniversary, Mom and Dad! I love you!

Posted by Eric at 11:54 AM

June 28, 2007

In Seattle, Diversity Isn't A Black-And-White Issue

n today's school-assignment cases, Justice Kennedy's opinion controls, as he was the 5th vote to overturn the Seattle and Louisville school assignment plans, and the reasoning in his concurrence is narrower than that of the Chief's plurality opinion.

As to the Seattle plan, the key paragraph in Kennedy's concurrence, it seems to me, is this one:

This seems exactly right to me, and it has since last fall when I first closely examined the cases for a seminar I was teaching. A very significant percentage of the enrollment in Seattle's high schools is neither white nor black. (Think about it: Seattle is a major city on the Pacific Rim; lots of folks in the Seattle schools are of Asian ancestry.) So it is very hard for me to take seriously the claim that the Seattle school district was seeking to achieve genuine "diversity" by making school assignment decisions with a "white/non-white" system of categorizing students.

This graph of the demographics of the Seattle School District makes the point quite clear:

Under Seattle's plan, a school that was 40% white and 60% Asian would be just as "diverse" as a school that was 40% white and 60% African-American. That's nonsense.

It appears that what Seattle was really after was not "diversity," but ensuring that no school would be excessively non-white. Perhaps there is a case to be made that compelling benefits flow from having adequate numbers of white students in all of a district's schools (as distinguished from the benefits that flow from true "diversity.") But I don't think the school district made that case -- and in any event, I'm pretty skeptical of the claim.

(By the way, comments on my blog are broken at the moment. I'm working on it. If you have something to say, though, you can always drop me a line: isthatlegal at bellsouth, with a "dot net" on the end.)

Posted by Eric at 11:18 AM

June 27, 2007

Supreme Court Spoiler!

he Supreme Court's ruling in tomorrow's blockbuster school assignment decision has been leaked to me.

It's below the fold. An IsThatLegal exclusive.

Hufflepuffs to be bussed to Slytherin.

Posted by Eric at 11:57 PM

June 26, 2007

Taming the Wild West

hile in Cody, Wyoming, last weekend, I spent some time at the Buffalo Bill Historical Center, a marvelous museum of ... well, just about everything. It is five museums in one: a museum of Native American cultures, a museum of the natural history of the greater Yellowstone area, a museum preserving the history of Buffalo Bill Cody's western shows, a museum of firearms, and a museum of the art of the American West.

The piece that really captivated me was a very large painting by Irving R. Bacon entitled "The Conquest of the Prairie."

The Conquest of the Prairie

Painted in 1908, the large canvas depicts Buffalo Bill Cody as a guide on horseback bringing "modern life" to the West.

The Conquest of the Prairie - detail

A somewhat dazed-looking group of American Indians look on as buffalo run from an oncoming line of covered wagons. In the middle distance, a train belches smoke as it crosses a bridge westward.

The Conquest of the Prairie - detail

Far in the distance, over Buffalo Bill's shoulder, an urban skyline breaks the horizon.

Buffalo Bill and the looming city

Buffalo Bill so loved the painting that he bought it from the artist and displayed it in his Irma Hotel in Cody, Wyoming. To him, and I suppose to his hotel guests, the painting celebrated "progress."

The Conquest of the Prairie - detail

To my eye, and I suspect to many modern eyes, the painting is just unfathomably sad.

Posted by Eric at 9:56 PM

Blog Malfunction

ou may have noticed that the images atop this blog -- its title, and the picture of my dog that's normally atop the right column -- have disappeared. I am at a loss to know why. I've fiddled with things and can't get the images to reappear. If there's a kind soul out there who might be willing to help me diagnose the problem, I'd sure appreciate it. Drop me a line at isthatlegal - at - bellsouth dot net.

UPDATE: Made some repairs; things look OK again. Thanks, Sue!

Posted by Eric at 10:42 AM

June 23, 2007

Heart Mountain Wyoming Foundation Unveils Two Important Plaques

t 10:30 a.m. today (Mountain Time), the Heart Mountain, Wyoming Foundation unveils two plaques. One reflects Heart Mountain's designation as a National Historic Landmark -- an important step along the way to our creation of an Interpretive Learning Center at the site of the WWII camp.


The other plaque commemorates former U.S. Congressman and Transportation Secretary Norman Mineta's incarceration at Heart Mountain from 1942 to 1943 as well as his extraordinary record of public service.


I'll be at the ceremony. Maybe I'll post some photos later.


The ceremony was a smash -- moving in its memory of the past, and inspiring in its commitment to the future. Here are a few photos. Better ones, taken by the Heart Mountain, Wyoming Foundation's expert photographer (and former internee) Bacon Sakatani, will be available soon.

Three Featured Speakers

Here are our three featured speakers: Wyoming Governor Dave Freudenthal (left), former Transportation Secretary (and Heart Mountain internee) Norman Mineta (middle), and former Wyoming Senator Alan Simpson.

Governor Freudenthal

Governor Dave Freudenthal emphasized that the internment of Japanese Americans at Heart Mountain involved injustice not just by the federal government, but also by the State of Wyoming.

Secretary Mineta

Former Congressman and Transportation Secretary Norman Mineta spoke movingly about some of the people in his life who had inspired him to leadership even in times of adversity.

Mike Snyder

Mike Snyder, the Director of the National Park Service's Intermountain Region, unveiled a plaque designating the site of the Heart Mountain Relocation Center as a National Historic Landmark. He spoke very movingly about his own family background and the importance of preserving sites like Heart Mountain that reflect the triumph of the human spirit over adversity, and that serve as reminders of the importance of civil liberties during times of peril.

Senator Simpson

Former Senator Alan Simpson succeeded in getting the big crowd laughing -- and thinking about how his lifelong friendship with Norman Mineta, formed behind barbed wire at the Heart Mountain Relocation Center, should inspire us to prevent future injustices.

Simpson and Mineta

Two old Boy Scouts embrace in the shadow of Heart Mountain.

Posted by Eric at 10:52 AM

The Most Powerful Man In The World

alvin Coolidge, America's 30th President, is reputed to have said, "I suppose I am the most powerful man in the world, but great power doesn't mean much except great limitations."

George W. Bush is living those limitations on presidential power in Iraq.

But the Office of the Vice President, and current office holder Dick Cheney, apparently suffers no such limitations.

It turns out that every VP in our history was mistaken in thinking that he was a powerless afterthought.

Thanks to Cheney and his chief advisor, David Addington, we now learn that the Founders constructed a constitution in which the Vice President, not the President, was in fact the most powerful man in the world.

Why? Because a VP is both of the executive branch and legislative branch. Sort of like a mythological centaur.

What's even better is that the VP, a constitutional officer in both Art. II and Art. I, suffers none of the limitations of a president.

Just look at the Constitution, and Article II in particular. It's full of pesky categories listing a president's powers.

But the VP suffers no such indignity. A VP is, well, like Superman -- with powers and abilities, we have now learned, far beyond those of mortal men.

Posted by shertaugh at 10:05 AM | Comments (2)

June 22, 2007

Heart Mountain Sunrise

am in Cody, Wyoming, for a meeting of the Board of Directors of the Heart Mountain, Wyoming Foundation.

I got up early this morning to shoot some photos at sunrise at the site of the Heart Mountain Relocation Center. A few turned out nicely enough to share with you here.


This is the boiler room of the old camp hospital complex silhouetted against the rising sun.


Same building but from the opposite direction, with Heart Mountain in the background. The sun is now up; the light is an incredible salmon color.


Barbed wire at the site, with Heart Mountain behind. This is undoubtedly not original camp fencing; it appears to be from more recent fencing that either the Bureau of Reclamation or local landowners put up.

Posted by Eric at 10:07 AM | Comments (2)

June 20, 2007

Kiva.org: Lend an Online Hand

o you know about Kiva.org?

It is an online service that allows you to make a microloan to a small business of your choice in a developing country.

Right now, in my portfolio, I've got $100 out to Rafiga Najafova's clothing store in Baku, Azerbaijan, and $50 out to Fatima Doré's food production business in Ndjamena, Chad.

(This, by the way, is what I do with most of the the paltry advertising revenue I generate on this blog.)

Go over to Kiva.org and click around. If you've got a bit of money collecting dust in a paypal account or something, why not spread the wealth a little?

Posted by Eric at 8:35 AM | Comments (6)

June 19, 2007

New Heart Mountain Website!

'm very pleased to announce www.heartmountain.net, a newly redesigned website of the Heart Mountain, Wyoming Foundation, on whose Board of Directors I serve. It's my first foray into web design! I think I'll be keeping my day job ... but it's definitely serviceable.

This is an exciting time for the Heart Mountain Wyoming Foundation, whose mission is to educate the public about the story of the Heart Mountain Relocation Center for Japanese Americans in World War II. With the successful installation of a comprehensive Walking Tour of the site, we are now launching our campaign to build a state-of-the-art Interpretive Learning Center on our land at the site.

Did you know that former U.S. Secretary of Transportation (and U.S. Congressman) Norman Mineta and former U.S. Senator Alan Simpson (WY) met and became friends as twelve-year-old Boy Scouts at a Jamboree behind the barbed wire of the Heart Mountain Relocation Center, where Mineta's family was incarcerated? Click here to read a letter from Mineta and Simpson about their support for our planned Interpretive Learning Center.

Posted by Eric at 12:29 PM | Comments (1)

Ajami's Views on the Hamas/Fatah Split

am not enough of a student of the Israeli-Palestinian Conflict Commentocracy to know exactly where Fouad Ajami stands. But I found his op/ed in this morning's NYTimes to be a sobering and somehow (I don't quite understand why) satisfying read:
Arab poets used to write reverential verse in praise of the boys of the stones and the suicide bombers. Now the poetry has subsided, replaced by a silent recognition of the malady that afflicts the Palestinians. Except among the most bigoted and willful of Arabs, there is growing acknowledgment of the depth of the Palestinian crisis. And aside from a handful of the most romantic of Israelis, there is a recognition in that society, as well, of the malignancy of the national movement a stone’s throw away.

The mainstream in Israel had made its way to a broad acceptance of Palestinian statehood. In the 1990s, Yitzhak Rabin, the soldier who had led its army into acquisition of the West Bank and Gaza in the Six-Day War of 1967, told his people that it was time to partition the land and to accept Palestinian sovereignty. It was an unsentimental peace, to “get Gaza out of Tel Aviv,” as Mr. Rabin put it, but it was peace nonetheless.

In varying degrees, all of Mr. Rabin’s successors accepted this legacy. There was even a current in Israel possessed of a deep curiosity about the Palestinians, a romance of sorts about their ways and folk culture and their connection to the sacred land. All this is stilled. Palestinian society has now gone where no “peace processors” or romantic poets dare tread.

UPDATE: I read on notoriously unreliable wikipedia that "Ajami has been accused of being a self-hating propagandist who tells those in power what they want to hear, thus helping justify their policies." Perhaps this helps place Ajami's op/ed in context; I don't know.

Posted by Eric at 10:07 AM

Right Now, It's A Shot in the Dark

've been wondering for years whether it'd be possible to predict (rather than just wildly to guess) which antidepressant might have the best chance of success for which patient. It seems like such a sensible idea -- and apparently it's on its way.

Posted by Eric at 8:15 AM | Comments (3)

June 16, 2007

If You're In The Listening Area ...

'll be on the North Carolina Public Radio show "The State of Things" this Monday at noon, talking about my ongoing investigation into the life of my great-uncle Leopold and his murder by the Nazis in Poland.

UPDATE: It looks as though you can stream the show (noon Eastern) through the show's website.

FURTHER UPDATE: I thought the show went great. You can listen to it, if you want, by clicking on the "Listen" button here.

Posted by Eric at 12:43 PM | Comments (4)

Macca Treacle

imee Mann wrote this in the New York Times a couple of weeks ago:
"Paul McCartney's relentless cheerfulness is depressing. The very jauntiness I used to love as a girl feels as if it's covering up a sadder subtext. And what's bleaker than a brave face?"

I had just said nearly the same thing to my old college roommate Tom the day before Mann's op/ed appeared. Back in the day, we were both huge Beatles fans; Tom was a Lennon guy and I was a McCartney guy. Over the years, I've soured on Macca -- not so much because his writing has often been lazy and his music has often sucked, but for the reason that Aimee Mann put her finger on. I have just grown tired of, or perhaps away from, his relentlessly upbeat persona.

The man has been through hell these last few years (and this is just the stuff we know about): He lost Linda; he lost George; his third marriage to Heather Mills fell apart amidst accusations of physical and substance abuse.

Yet on he jaunts. (This article in the New Yorker subtly highlights the compulsiveness of his jauntiness, and especially of his desire to be seen as jaunting.)

The man even thinks of his own funeral as a moment to flee from sadness:

At the end of the end
It's the start of a journey
To a much better place
And this wasn't bad
So a much better place
Would have to be special
No need to be sad

On the day that I die I'd like jokes to be told
And stories of old to be rolled out like carpets
That children have played on
And laid on while listening to stories of old

At the end of the end
It's the start of a journey
To a much better place
And a much better place
Would have to be special
No reason to cry

On the day that I die I'd like bells to be rung
And songs that were sung to be hung out like blankets
That lovers have played on
And laid on while listening to songs that were sung

At the end of the end
It's the start of a journey
To a much better place
And a much better place
Would have to be special
No reason to cry
No need to be sad
At the end of the end.

At a Borders bookstore the other day, I put on the headphones and listened to this tune off McCartney's new album, and a couple of others, for a few moments. Fifteen years ago, I would have snapped up the album without even listening to it first. The other day, I hung up the headphones quickly and put the disc back in the bin.

It makes me sad, but I can no longer even listen to this stuff.

Posted by Eric at 9:26 AM | Comments (5)

June 13, 2007

Calling "Lostingotham"

n author has contacted me, seeking information about something that frequent commenter "Lostingotham" posted to this site some time ago. Lostingotham, if you're reading this, please drop me a line.

Posted by Eric at 11:29 PM | Comments (1)

June 12, 2007

Orin Kerr on the Al Marri Case . . . Eric, Your Thoughts?

rin Kerr, of the Volokh Conspiracy, has posted extensively and eloquently on the 4th Circuit's Al Marri Case the past couple of days. In a word, if I understand him, he offers a sliding Due Process scale for dealing with suspected terrorists seized on American soil.

I'm hoping Eric will weigh in on the debate -- as Marty Lederman of Balkinization did in the comments section to Orin Kerr's first post.

Eric, does Orin's position support the en mass round up of American citizens and lawful resident aliens suspected of aiding the enemy? I'm assuming a loyalty oath isn't enough.

Posted by shertaugh at 8:41 PM | Comments (1)


am taking a prescription medication one of whose side effects is "inappropriate happiness!" Really!

Later I'm going to blog about this really funny multi-vehicle auto accident I just saw!

Posted by Eric at 2:04 PM | Comments (5)

American Inquisition

've just received the jacket art for my new book "American Inquisition: The Hunt for Japanese American Disloyalty in World War II" (University of North Carolina Press, forthcoming October 2007):

I like it!

Posted by Eric at 9:01 AM | Comments (7)

June 7, 2007

The Hypocrisy in William Otis's Argument for a Commutation of Scooter Libby's Sentence

illiam Otis says of Scooter Libby's 30-month sentence:
"This was an unusually harsh sentence for a first offender convicted of a nonviolent and non-drug-related crime. . . . Neither vindication of the rule of law nor any other aspect of the public interest requires that Libby go to prison. He is by no stretch a danger to the community, as 'danger' is commonly understood. He did not commit his crime out of greed or personal malice. Nor is his life one that bespeaks a criminal turn of mind."
Over at Volokh, Jonathan Adler praises Otis's argument. But I think it's garbage -- and surprising garbage, given that it's from the pen of an expert on the federal sentencing guidelines who has argued powerfully against the very sort of freewheeling leniency he now espouses.

The judge sentenced Libby to 30 months -- the lowest sentence from within the range of 30 to 37 months determined by the federal sentencing guidelines. (The judge rejected a guideline calculation that would have produced a range of 15 to 21 months -- more lenient, but a far cry from the out-and-out commutation that Otis contends for.)

In producing those potential ranges, the sentencing guidelines already take into consideration each of the factors Otis cites in support of Libby's escaping jail time.

First offender? Yes, the guidelines take that into account.

Nonviolent offense? Check.

Not drug-related? Yes, it's in there.

Degree of danger? Yup.

Absence of greed or malice? Also.

This is how the guidelines work, as Mr. Otis knows: they take these sorts of factors into account in producing the suggested sentencing ranges. It is only in those cases where some highly unusual factor that the sentencing guidelines do not already take into account is present that offenders ought to do less time than the guidelines suggest.

To be sure, today Mr. Otis is arguing for a discretionary executive commutation of a sentence in order to avoid all prison time, rather than a judicial "downward departure" from the guideline range.

But what a hollow argument from someone who, like me, used to be a federal appellate prosecutor, and who, just 7 years ago, decried sentencing leniency in testimony before a subcommittee of the Senate Judiciary Committee:

"The Guidelines are being increasingly swallowed by downward departures. These departures, both in absolute numbers and as a percentage of all sentences, have increased every year from 1992 through 1999. At the beginning of the 1990s, sentences were imposed within the guidelines range in about four-fifths of the cases; by last year, it was less than two-thirds. The current guidelines compliance rate is, in other words, a little above 60%. That means that, as we speak, we are perilously close to sliding back to the subjective, idiosyncratic and gratuitously lenient sentencing of the old system -- but less honest than the old system, because the public has been led to believe that now we have rules, when increasingly, as a practical matter, we don't....

What are the reasons for the national slide, and why has the Eastern District of Virginia escaped it? The slide began when the Commission whose term recently ended replaced clear guidance about the limited role of departures with more ambivalent language, creating increased wiggle room for judges who wanted to take it. In many jurisdictions they did. Fuzzy language in the Guidelines expanded it into gigantic new loopholes, and downward departures sprang up for novel reasons that ranged from the questionable to the absurd ....

Every downward departure means another criminal back on the street before he would have been had the Guidelines been followed -- back on the street to rob your bank, hijack your car, or sell drugs to your child. Yet, over the last seven years, the Department's efforts to constrain these departures have all but vanished.

Mr. Chairman, even the best of laws is no more effective than its enforcement. The Sentencing Reform Act is in my view -- a view formed through more than 20 years as a federal prosecutor -- among the best of laws, because of the fairness, consistency and visibility it has brought to sentencing, and perhaps even more because of what it has done to depress the crime rate and secure for our citizens their right to live in peace and safety."

Surely it cannot be Mr. Otis's position that no first-offending, non-violent, non-greedy obstructer of justice ought to do jail time. That is certainly not the position of the sentencing guidelines, whose "fairness" and "consistency" Mr. Otis has publicly lauded.

So why exactly should Scooter Libby walk?

Posted by Eric at 11:55 AM | Comments (9)

June 6, 2007

Judge Sarokin Has Some Questions For Patrick Fitzgerald

ou can find them on his blog.

Posted by Eric at 10:04 PM

I'm Guessing The Locals Say "Rufton"

y nomination for "Hardest Town Name To Pronounce In Conversation":

Rutherfordton, North Carolina

Posted by Eric at 4:11 PM | Comments (5)

June 5, 2007

Growing A Nation

am continuing to peruse the papers of Thomas Ruffin, the antebellum Chief Justice of the North Carolina Supreme Court, for a paper I'll be writing later this summer.

I just came across a sweet little letter that reminds us of how agrarian the world of our early political leadership was. It is a letter to Ruffin, then recently retired as a state superior court judge, from James Strudwick Smith, who represented Ruffin's district in the House of Representatives.

Washington City, January 27, 1819

Dear Sir

I have inclosed you six seed of the wild Olive. It is a beautiful evergreen that grows rapidly and to the height of 40 feet and the trunk is in some instances two feet through it has a dark green leaf smooth on the surface with the edges a little serrated.

Mr. [William Harris] Crawford the Secretary of the Treasury presented me about a hundred they grew in his garden in Georgia. He planted the seed about twelve years since and he informed me that the Tree is now about 8 inches through and twenty feet high. The seed must be planted where you wish the Tree to stand as all the evergreens are difficult to transplant. The seed should be planted 2 1/2 or 3 inches deep and in light rich earth the sooner these seeds are planted the better as the season for vegetation is fast approaching.

I am with regard
Your Humb. Servt.

JS Smith

Next time I'm up near Judge Ruffin's old house in Hillsborough, I'll have to look for some old wild olives.

Posted by Eric at 10:41 AM

June 4, 2007

Tanforan, 65 Years Later

heck out these photographs of this past Saturday's reenactment of the so-called "evacuation" of Japanese Americans to the Tanforan Race Track south of San Francisco in the spring of 1942.

It looks to have been a very moving event.

Posted by Eric at 12:43 PM | Comments (2)

June 3, 2007

Pop Quiz

hich of the following states has the highest per capita production of carbon dioxide?

A. New Jersey
B. Delaware
C. Wyoming
D. Michigan

Answer below the fold.

The answer is

C. Wyoming

Posted by Eric at 8:24 PM | Comments (1)

A Sign of Hope

his past Saturday, I sat during Shabbat services next to my daughter during the Bat Mitzvah of a very close friend's own 13 year-old daughter (who, as the services unfolded, proved herself to be every bit and more the woman she now is under Jewish law).

My daughter looked behind the bima (the area where the rabbi stands and from where the Torah, the first five Books of the Bible, is read every week in front of the Congregation). On the wall facing the Congregation was a giant Menorah, a 7-branched candelabrum. My daughter asked me what the Menorah means. According to the Torah, God commanded Moses to fashion one out of gold after revealing to him His vision of what a menorah should look like. [Numbers 8:4.] I said to my little girl that I think the Menorah is a sign of hope.

As God would have it on this day, my daughter and I, along with my wife and son and the rest of the Congregation, watched and listened -- with this wall-sized Menorah as a perfect backdrop -- to this remarkable young woman standing on the bima give life to the hopeful symbol behind her.

That beautiful, brilliant young woman on the bima was reading the very Torah portion in which God revealed his vision to Moses. The Bat Mitzvah chanted God's words with the voice of a songbird. And she has the countenance of an angel.

As we watched the Bat Mitzvah confidently connect with the Congregation, I couldn't help but think that there really is reason to hope for our future. This is a very special young person we saw. L'dor v'dor.

Moz'l Tov, Eric.

Posted by shertaugh at 6:28 PM | Comments (4)

"The Young Hillary Clinton" -- And That Matters Because?

n today's Washington Post, Carl Bernstein -- of Woodward & Bernstein breaking Watergate fame -- has a piece on Hillary Clinton, entitled "Portrait of the Candidate as a Young Climber".

Bernstein's opinion piece actually covers the arc of her life from college to the present.

But the title to Bernstein's piece raised a question for me. Why should it matter what Hillary Clinton said or did in college or law school or even as an employee of the House Judiciary Committee as it investigated Nixon?

I ask because Ronald Reagan was a dyed-in-the-wool Democrat before joining the GOP after becoming president of the Screen Actors Guild (when, it is rumored, he was bought off by Lew Wasserman -- the Hollywood ubber-agent and founder of MCA in a deal that guaranteed a lucrative stream of royalties for the studios at the expense of the actors' interests whom Reagan purported to represent).

No one was a greater flipper than the Gipper.

I suppose one could (and will) argue that Reagan's conversion -- and I'll assume it was heartfelt, rumors aside -- became a powerful metaphor for the wrongheadedness of the Democrat[ ] party's policies. So why question his past when he himself was saying, "gee, what was I thinking (before the payoff) [oops]."

Clinton, on the other hand, apparently left the Republican party for the Democrat[ ] party. So, because she's not disavowed her post-GOP past, she must always be held to answer for it. Were she to move (or return?) to the Republican fold, I doubt she'd get the reception Reagan did. Even her relatively robust views of executive power get no quarter from the GOP.

In any case, while I certainly think it's important to know whether, for example, a person seeking the presidency has run every company he's ever managed into the ground (like Geo. W. Bush did, for example). I also believe that what a person did or said during the same chronological period preceding Reagan's ascension to president of SAG should barely merit a footnote -- unless the candidate touts it.

I believe that to be true for Clinton as much as Guiliani (wife #1 of 3), McCain (bad student who made up for it by being a party animal), and Romney (pro-choice, right?).

Posted by shertaugh at 5:15 PM | Comments (1)