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16.Sept.2014 Permanent URL to this day's entry

Fever pitch Permalink to this item

Hard to believe they can keep this up, let alone ramp it up from now until election day, but I suppose it's possible. Emails are cheap, and the Romney for President Inc. email generator might be bottomless. The Dems are at it too, of course, and both sides can experiment with positive and negative approaches. We're winning! We're losing! They're going to beat us! We're going to beat them! "[W]ith the support of President Obama and Harry Reid, the Democrats are fundraising at a historic pace."

And the NRSC's only chance to compete is if supporters like me step up- and now. There's also the oddly specific pitch. RfPI suggests a donation of $37.63 today, after noting I'm a "High Value" supporter (talk about your bold-faced lie!) with the "Record Number" 1234567, which would make me one lucky ducky.

It's game over people, Democrats win! (You wouldn't doubt the NRSC, would you?)

15.Sept.2014 Permanent URL to this day's entry

Left Behind Permalink to this item

That's the subject of one of today's fundraising emails on the Republican channel I get, sent by the undead "Romney for President Inc." but says "paid for by NRSC," which is the National Republican Senatorial Committee, I think. Not authorized by any candidate or candidate's committee, and is not an endorsement by Mitt Romney. Claim is I "signed up as a member of Mitt Romney's online community on 7/14/2012 0:00," but that doesn't seem likely, really. Midnight? (What time zone?) Bastille Day? (Checking... and judging by my blog entry that day, I'm thinking huh uh.)

The email starts with a breezy "Hey- where are you?" and claims I'm "missing out" even though I'm not, hardly. (I'm missing out on sending money to the NRSC or MittFor?) "Don't be left behind. Don't miss out. Make sure you're a part of history."

By sending money, is that how history is made?

11.Sept.2014 Permanent URL to this day's entry

Correction Permalink to this item

One of the strangely memorable lines in a favorite Firesign Theater album of my younger days was George Leroy Tirebiter's campaign slogan: "You can believe me, because I'm always right, and I never lie." In my mind's eye, Tirebiter looks an awful lot like Richard B. "Dick" Cheney, for some reason.

Cheney was back in the news this week commenting on the the mess in the middle east, and beating his war drum to keep the Republicans from going all squishy and isolationist. The New York Times reported that

"Mr. Cheney’s brief talk during a closed-door meeting of the House Republican conference was mostly about the need for Republicans to push to maintain a strong military, but he also argued that his party needed to stop the establishment of a terrorist state in the Middle East.

"He did not discuss the fact that many ISIS leaders were former Iraqi military officers who were imprisoned by American troops, nor did he dwell on the sectarian divisions and bloodletting since the 2003 American invasion. The crux of his argument, in fact, centered not on Mr. Obama, but on the isolationist voices on the rise in his party ahead of the 2016 presidential campaign, Republican lawmakers said."

That's maybe not as interesting as the fact that the Times accidentally left off the "Vice" in Dick's title on their first try:

Correction: September 9, 2014
An earlier version of a summary with this article misstated the former title of Dick Cheney. He was vice president, not president.

X marks the spot Permalink to this item

Now that we're in the Space Age, we can talk about space weather as well as the old-fashioned kind. Social media is abuzz with the latest weather headed our way, one of those big old Coronal Mass Ejections from our favorite nuclear reactor. Given the earth's diameter (12,742 km) and our orbit (152 million km), our planet blocks about half a billionth of the view of the sun. Which is to say most of what shoots out of it goes off in other directions. But as we watch our star, night and day, every so often something flashes right dead center, which means here's looking at you, kid.

image from NASA's Solar Dynamics Observatory

The good news, I see, is that at least one fellow who ought to know, Tom Berger, the director of the Space Weather Prediction Center in Boulder, Colorado says "We're not scared of this one." Even though we're close to the peak of the sun's 11-year cycle, it's been a quiet cycle in our hometowns, and we've seen much bigger stuff. As recently as February. Maybe we'll have some nice aurorae?

That brief article tells us this latest shot is an X1.6, and compared to what: X4.9 in February, X28 biggest we've measured (11 years ago), and X40 (estimated) biggest we know anything about. That's as in peak flux in watts per square meter of 100-800 picometer X-rays out here at one astronomical unit from Sol central.

If you've got some time for the download, yesterday's time-lapse from the Solar Dynamics Observatory is pretty exciting. The flare lights up in the middle middle, serpentine before it pegs the imaging system.

10.Sept.2014 Permanent URL to this day's entry

Liberal labyrinth Permalink to this item

When called upon to characterize my political views once upon a time, under oath, I used the shorthand that "I'm a liberal." The prosecutor excused me from jury duty, even though the accused was demonstrably guilty and I would have certainly returned that verdict from the facts that were presented in evidence.

I was reminded of my declaration by the Rev. Elizabeth Green's column last month, responding to the "joke" that "liberalism is a mental illness." Her conclusion was a worthy exhortation:

"Thank all the powers that be - within, among and beyond us - that there is much love practiced in the world. Day-to-day, embracing, courageous, approaching-of-others love. Practiced by liberals, conservatives, middle-of-the-roaders, and people who won't be labeled. Thank all the powers that be for the many people, of any and all spiritual or political paths, who walk the high road, who speak and act toward others as they would have others speak and act toward them.

"May we go forth and do likewise."

That's about as succinct a rebuttal to casual labeling and sloppy thinking as is needed, even if it can't address the deeper issue of the deliberate use of language to create pejorative associations with one's opposition. A topic for a larger essay, someday.

When I went to pin down the date of my declaration, I found that it was before the salad days of the web (let alone blogs), and probably before "liberal" had been promoted to the point of being an epithet and helping George W. Bush move into the White House. The fellow who I first saw in an orange jumpsuit in that courtroom was there because he'd robbed two Jehovah's Witnesses' Kingdom Halls (on the same day, no less) at gunpoint. By the time the jury prospects were let in, he was shackeled to the courtroom floor, after "dismissing" his court-appointed lawyer with a good punch.

But we didn't know any of that at the time. In spite of him being well-known to at least one of the two congregations, and armed robbery in two churches being enough for some good coverage in the local news, and a very long list of eye witnesses to the crimes, we were pretty much all usefully ignorant. My dismissal wasn't for "cause," but rather a peremptory challenge after I seemed too much a bleeding heart, based on a caricature of a question ("how would you characterize your political views?") and my three and a half word answer.

The web record of events has caught up with the case: you can read Leagle's summary of the facts of February 18, 1993, and some of the subsequent legal wranglings Mr. Hyde has attempted, and then you can fast-forward a decade to still more, and on it goes, to 2011, at least. He's got some time on his hands to work the legal system, if nothing else.

9.9.2014 Permanent URL to this day's entry

You have not said the word "sloppy hack" in our conversation Permalink to this item

The exerpts of the interview of Obama by NBC News' Chuck Todd that we saw on last night's Newshour just had the President talking. I thought the images of Todd listening intently were kind of odd, but I figured whatever he'd had to say wasn't the point, right? Confirmation, of a sort from an intemperate post on Daily Kos. Eight-plus minutes in to the interview, Todd said to the President, "you have not said the word, "Syria" so far in our conversation." Look at that spot in NBC's transcript, ever so slightly highlighted by me:


"...We're going to have to train the military there more capably. We've got to do more effective diplomatic work to eliminate the the schism between Sunni and Shia that has been fueling so much of the violence in Syria, in Iraq. And so we put together a plan that is compatible with the kind of work that we're doing now."


You've not said the word, "Syria," so far in our conversation. Obviously, if you're going to defeat ISIS, you have used very much stronger language. It's gone through the week during your trip to Wales. You got to go to Syria in some form or another.

The mention in the second-to-last sentence before Todd said "you haven't" was the fourth time the President mentioned Syria specifically.

If it looks sketchy, it probably is Permalink to this item

That's a line that jumped out at me from a newsletter article about "data security procedures to implement immediately." Item #5:

Surf Smarter – again, it is THE YEAR 2014, learn from the frequent digital mistakes of the past decade. Be wary of email attachments and links, don’t download anything from an unknown source, and if it looks sketchy – it probably is.

Thanks to the longevity of my domain name and useful and/or interesting stuff I've posted over the last 14 years, I've had a variety of requests to provide links to other sites, almost all of which are transparently bogus, but some of which approach subtlety. It took me several tries to land on a shared term of art, but "spamdexing" seems to be it, and today's subcategory is link spam, "links between pages that are present for reasons other than merit."

Cat photos never get old

The number one reason other than merit is to pump up search results and sell stuff, eh? I should be flattered (there's almost always some flattery involved) that is deemed authorative enough to be valuable for promotion. But if I take the bait... there goes the neighborhood, and my good name goes down the drain. Tricking me would be such a minor achievement, and fleeting, besides.

Email today, purporting to be, and apparently actually from someone who is a "Media Specialist" at the Charlotte, Tennessee public library. She says she's "been using [my] page with information on copyrights and trademarks ( for our 'Intellectual Property' LibGuides."

"The library volunteers and myself have been looking for some additional references to include...we came across this guide on cyberspace laws:"

and a link to a supposedly "comprehensive legal guide to cyberspace law." She didn't see it listed with "my resources," would I mind including it? Since my index of "useful stuff of various sorts" has but a single link on the topic she refers to, a deep link into the National Paralegal College's online course about Patents, Trademarks & Copyrights (copyrighted 2006-2014, so they are keeping it up), this is passing strange. Before closing with "blessings" (she opened with "Happy Tuesday"), she writes:

"I'd like to show our volunteers their extra work is paying off. Let me know if you add it - I meet with them tomorrow!"

Looking at this reference work I'm asked to add, I see it's on the site of a criminal defense law firm in the L.A. area, and they've pulled together 3 dozen links from universities (mostly), governments and other organizations under a half dozen subtopics. The subtopic introductions are non-value-added blathering boilerplate, and formatted with the right margin justified. (Hint: that doesn't look "tidy" to me, it just looks stupid, because it's harder to read with the variable word spacing.) The three dozen links are not introduced or summarized in any way, just given by title. (I sampled a couple, and they seem relevant, but of variable depth and quality. I'm guessing "comprehensive" is a synonym for "we found a lot of stuff!")

Very shortly after loading the page, a pop-over enticement to chat with somebody helpful required my attention, and sure why not? "Joan" responded to me in a perfunctory, administrative (or perhaps robotic) way, eventually obtaining my name, location, and email address, but not the phone number she wanted. (I said "I'm not prepared to take a phone call, sorry.") I saved the transcript which isn't all that interesting beyond the opening call and response:

I got a curious link-fishing request to reference one of your pages, from, apparently the public library in Charlotte, TN. Do you have some sort of marketing arrangement? This is very strange.

We may be able to help you. May I know who am I speaking with?

And so on. (They may not be able to help me, too. Her job was just to identify the topic and get my contact info.)

If I were in the law firm, I wouldn't reply to that inquiry, I'd just ignore it. We'll see. For the volunteers at the Charlotte Library, let me suggest vetting those three dozen links on your own (and whatever) and come up with your own recommendations for worthwhile references on whatever topics are of interest to your library's clientele.

8.Sept.2014 Permanent URL to this day's entry

For the children Permalink to this item

Haven't ever dropped in on a Circuit Court proceeding before but a timely link to the Ninth today gave me a ticket to hear the oral arguments for Idaho's appeal of Latta v. Otter to a three judge panel. Private attorney Monte Stewart did all the talking for the defense, and did his best to resist withering questions from Judge Berzon regarding a case that the state has been steadily losing so far.

The plaintiff's lawyer was greeted with gentle softballs, and left with more time than she expected to deliver a summary.

The nut of the defense's argument today is that we have to send the right messages so that fathers take care of their children, and if the children of same-sex couple suffer in order to protect the future children of Idaho, well, we're sorry about that. We need to wave a stick around to keep people in line. And Mr. Stewart thinks "Idaho's crystal balls" are better than the Ninth Circuit courts' because the people voted on not letting people get gay married. In his time reserved for answering the plaintiff's argument, he waved a poster with a photo of a good old nuclear family in the air to support his position. It was a campaign poster from the 2006 constitutional amendment that gave Idaho "the most sweeping and draconian same-sex marriage ban of any state in the 9th circuit."

Judge Berzon had asked him whether there was some legislative reference to this child protective purpose that is the only argument they have left to stand on, and he thought he might be able to find something and turn it in later.

Stewart appears to be getting a nice two-for-one deal on his legal fees, arguing for Nevada's ban (on behalf of "Coalition for Protection of Marriage" rather than Nevada, since that state declined to defend its ban after it was thrown out by a court).

At the very end of the argument in the Idaho case, Stewart was speculating about what Justice Kennedy thinks, before Judge Reinhardt interrupted him to say "I think you're going to have an opportunity to find out what Justice Kennedy really thinks" to the amusement of all assembled.

Count Idaho as a sure-fire loser at the Ninth Circuit.

Here's background from Betsy Russell for the Sunday Spokesman-Review.

Tired excuses for chipseal blundering Permalink to this item

The local roads in Boise and surrounding municipalities are maintained by the Ada County Highway District, to which they and county gave a life of its own, and sometimes regret that decision. There's not likely any going back though; the roads need maintaining, and the cities and county would be hard-pressed to do it for themselves, let alone coordinated among the jurisdictions.

There are roughly the same number of people who are interested in and have something to say about the roads as the weather, and ACHD pubishes some give-and-take in its "Road Wizard" feature in local papers and on its website. It's informative, usually, entertaining, sometimes, and on the subject of the unpleasant rocky road flavor of the decade, annoying. A couple of weeks ago, they published and responded to a good question from "KCB", "do bike lanes need to be chipsealed?" S/he'd noticed an example where the shoulder (on Idaho highway 21, not in ACHD's care) wasn't, and gosh it's nice.

The short answer was that they might do it the right way, but slurry seal (with sand instead of rocks) isn't as immediately driveable, and to avoid the inconvenience, they settled on reduced rock size. And of course, the gospel of chipseal:

"Like main travel lanes, bike lane pavement benefits from a covering to seal in oil and protect it from the elements. Without that, bike lanes would deteriorate faster than the rest of the chipsealed road, which would present its own kind of rough ride."

Except... the wear and tear from cars and trucks is orders of magnitude greater in traffic lanes than on the road less traveled, and streets inevitably get jolly smooth out in the middle while they're still a rough ride on the edges, cracking as they go. The "seal" is pretty much gone in a year or two even as the chips carry on. KCB gave it another try in the September 7 issue, shorter = "horrible and bumpy." The dunce-capped RW responded with an appeal to authority ("Salt Lake City also reports," excuse me?) and a promise of continuing unpleasantness: "I’d expect the road to be chipsealed within the next few years." As in... rest assured, it's going to stay horrible and bumpy, kids.

Here's what I launched in RW's direction this morning:

I wasn't going to bother responding to the recent Road Wizard letter and response regarding chipseal on road shoulders, but seeing another reader's comment, and RW's non-responsiveness, I'm moved to add my voice, again, to a discussion that's been going on for almost the whole 40 years I've been in Idaho.

If the RW would get out its car and get some fresh air and exercise, it would experience first-hand just how annoying it is to ride a bike on rough roads, and could likewise see many instances where the car-traveled roadway is worn smooth while the bike-traveled shoulder remains "like new" in its coarse texture EVEN AS both portions of the roadway deteriorate. The "seal" is long gone before the chips are. I use the height and proliferation of weeds coming through the cracks as a rough measure. Or are you calling that "landscaping" now?

IT'S NOT NECESSARY, no matter how many times and how patronizingly you insist that it is. You COULD maintain our roadways for both durability and ridability, but you don't, because you don't really care, do you? You don't ride your bike on it.

Annotated detail of Ustick Rd E of Cole, Sept. 2014

7.Sept.2014 Permanent URL to this day's entry

The gift that keeps on giving Permalink to this item

More political mail sourced from "Romney for President Inc." which might also be known as Zombie PAC, or else this is somebody's idea of a sick joke? Anyway, the singularly unappealing angle of "Your chance" for the subject, a guarantee that whatever lure they have to offer is fake, some tiny fraction of a percent chance at... well.

"Have you ever wondered what it would be like to have lunch with Senator Marco Rubio?"

I'm guessing that even among the true believers on the Romney for President Inc. list, there are precious few who have, in fact, wondered about such a thing. But let's say I had, and I were interested. The link bait says "Just contribute $5 or more for your chance to win." Never mind the lunch, "one free overnight trip to Washington, D.C, where your flight, hotel, and ground transportation costs will all be covered" does sound sort of fun; I could just skip out on the lunch and go to one of the many interesting Smithsonian museums. What are the odds? They "depend on the number of eligible entries received." And below the "contribute" and "donate" links and the big blue button this fine print:

NO PURCHASE NECESSARY TO ENTER OR WIN A PRIZE. ... Making a contribution does not increase your chances of winning.

And so on. But sorry, not even that interested.

4.Sept.2012 Permanent URL to this day's entry

RUN, HIDE, FIGHT! Permalink to this item

That's the title of a presentation Officer Will Reimers of the Boise Police Department is scheduled to give to the Morris Hill Neighborhood Association next Monday. The subhead on the poster is "Surviving An Active Shooter." Are You Ready? Refreshments! "Protector" Gargoyle door prize.

"Bring your neighborhood-related crime prevention questions and come prepared to learn all sorts of valuable information to help protect you and your loved ones."

Not sufficiently motivated? Maybe reading some neighborhood crime statistics or checking stats and maps will get you going.

Speaking of education, and accountability Permalink to this item

One of the best teachers I know recommended her friends spend some time reading Marc Tucker's report, published by the National Center on Education and the Economy that he founded, Fixing Our National Accountability System. The four-page executive summary gives a good flavor of it, as does Joe Nocera's op-ed introduction that summarized the central idea.

The technology business is not as obsessed with "American exceptionalism" as the political class; ideas from anywhere are evaluated independently of their sources. "We've always done it this way" is a sure sign of trouble, and the idea that an in-house solution to a problem is inherently superior is justifiably treated as stupid, if not laughable. In spite of the jumbling together of technology (and business) and education these days, what's been known as the "not invented here" syndrome is alive and well in our education system, however. Nocera:

"Not long after founding the NCEE, Tucker began taking a close look at countries and cities that were re-engineering successfully. What he came away with were two insights. First was a profound appreciation for the fact that most of the countries with the best educational results used the same set of techniques to get there. And, second, that the American reform methods were used nowhere else in the world. “No other country believes that you can get to a high quality educational system simply by instituting an accountability system,” he says. “We are entirely on the wrong track.” His cri de coeur has been that Americans should look to what works, instead of clinging to what doesn’t."

The assembly-line mentality, treating teachers as if they were interchangeable parts that need to be procured as cheaply as possible (and then cost-reduced once they're put in place), while measuring "quality" with clockwork standardized testing isn't working, and isn't likely to work. From the executive summary:

"The test-based accountability system now universally mandated in the United States—a system that reflects in every way the blue-collar conception of teaching as an occupation—has had ten years to prove itself. The result is very low teacher morale, plummeting applications to schools of education, the need to recruit too many of our teachers from the lowest levels of high school graduates, a testing regime that has narrowed the curriculum for millions of students to a handful of subjects and a very low level of aspiration. There is no evidence that it is contributing anything to improved student performance, much less the improved performance of the very low-income and minority students for which it was in the first instance created."

Tucker's proposal is to use instead "a system in which teachers’ main line of accountability would be not to their supervisor but to other highly motivated teachers."

"Instead of testing all of our students every year with low-level, cheap tests, our students would take high stakes tests only three times in their whole school career. These tests would be much higher quality tests, testing much more of the kinds of skills and knowledge now demanded for careers that are satisfying and pay well. And these high quality tests would cover the whole core curriculum, so subjects like history, literature, science, social studies, music and the arts would not be slighted."

It's not what we experienced in school, and it's not what we're used to. So... what?

"[S]everal variations on the plan that is now proposed have succeeded, on a national, provincial or state scale, in most of the world’s top performing jurisdictions. Perhaps it is time to give up on a plan that, according to theory, should have succeeded, but did not, in favor of a plan that has been shown to work, not once, in one place, but many times, in many places."

Are. You. Kidding. Me? Permalink to this item

The Republican candidate for Superintendent of Public Instruction here in Idaho apparently copied chunks of her website from the Democratic candidate. Clark Corbin reported the story for Idaho Education News. Democrat Jana Jones' comment:

“I find that amazing. All I can say is, no, I wasn’t aware of that and that’s unbelievable. I don’t know what you’re supposed to say to that.”

On the plus side, it shows that Ybarra's campaign at least knows where to look for good ideas to copy.

Update: IEN updated their original post at that same URL, with a link to Sherri Ybarra's response to the effect that she takes responsibility even though someone else's mistakes were made, and her opponent using the p-word and the i-word. "Integrity matters." And competence should matter too, eh? Ybarra's campaign has been a disturbing sequence of errors, however sincerely she's concerned about the future of Idaho's children.

3.Sept.2014 Permanent URL to this day's entry

Just the facts, ma'am Permalink to this item

There was kind of a dust-up in the legislature last term about allowing guns on Idaho's college campuses, because if only we have more good guys with guns, there'll be more good in the world, and besides the Second Amendment won the day. See what you can make of this shaken, not stirred and very dry account from the Idaho State Journal, PPD release update on accidental shooting at ISU. An employee. With ample permission. A handgun. In the employee's pants pocket. Accidentally discharged. Injured in the foot. The good news is that it was "small caliber."

"The weapon, bullet casing and bullet were recovered at the scene."

The Boise School Board Permalink to this item

The datelined yesterday but updated today story about our local election yesterday says that voter turnout was "the best for such a race since '96," but not to be confused with "good": just 6.3% of registered voters cared enough to cast a ballot. Sure, it's "just" the school board, and at an inconvenient date after a holiday weekend, but not even one out of 15?! (Regardless of the storied history dating to 1881, and yes it was there before Labor Day, it might be worth reconsidering, don't you think?)

The people who did vote sent an unequivocal message, however: keep the two incumbents (with 40 and 33% of the vote in a five-way race) and bring in former Democratic state Representative Brian Cronin (with better than a four to one margin).

Let's just say there is some non-alignment between politics in Idaho and its capital city.

Revisionism Permalink to this item

Aug. 2014 photo near the Boise River

Two pieces under that category, juxtaposed by chance in today's amble through the NYT: a review of Bettina Stangneth's book, “Eichmann Before Jerusalem: The Unexamined Life of a Mass Murderer,” and James Grossman's take on "The New History Wars."

First up, it turns out that contrary to the conclusion in Hannah Arendt's memorable pairing, Eichmann's evil was not the banality of a "bloodless, nearly mindless bureaucrat" who "never realized what he was doing," but rather that of an enthusiastic true believer. From an interest in "the nature of lies," and attention to the detail in what's been made public (not yet including "the full 3,400-page file on Eichmann held by the German intelligence service, the BND," still classified), Stangneth unearthed the enormity of genocidal Nazi leaders.

Secondly, a member of the Texas State Board of Education up in figurative arms over the College Board "promoting among our students a disdain for American principles and a lack of knowledge of major American achievements," or, as the Republican National Committee puts it, giving “a radically revisionist view” that “emphasizes negative aspects of our nation’s history.”

If you've been ignoring something, is it "emphasizing" to stop air-brushing it out of existence? Or are we supposed to imagine that the Republican National Committee is capable of providing a politically correct version? James Grossman:

"Navigating the tension between patriotic inspiration and historical thinking, between respectful veneration and critical engagement, is an especially difficult task, made even more complicated by a marked shift in the very composition of “we the people.” This fall, whites will constitute a minority of public-school students in the United States. “Our” past is now more diverse than we once thought, whether we like it or not."

It's not that the past is a moving target, but we and our understanding of it are. That's more complicated than just swearing by King James' Bible, for example, but a necessary precursor to mental health.

"This essential process of reconsideration and re-evaluation takes place in all disciplines; imagine a diagnosis from a physician who does not read “revisionist” medical research."

Labor Day Permanent URL to this day's entry

The land of make-believe Permalink to this item

For some reason that did not make any news account I saw, but presumably involving status- and fund-raising, Associate Justice Antonin Scalia visited Boise recently to help southern Idahoans celebrate the apparently successful adjudication of water rights on the vast and essential Snake River basin. There were plenty of knowledgeable parties on hand (not pictured) to talk about the necessity, the technical details the Native American reserved water right settlements, and basin-wide issues. Scalia lent the proceedings three cheers for private property rights and congratulations on keeping almost all the issues out of the Supreme Court, where the waters could only have been muddied.

Randy Stapilus' estimate of how we managed to distill success out of such a complicated sea was that it boiled down to "trust, cooperation, and luck," with a fair part of that luck being getting five good judges "in the order [we] needed them." If he's right, our experience may not translate to help for any other state's problems, no matter how fervently visiting Californians examine the record for useful ideas.

The SRBA wrap-up and dinner party is not the end of the story of fighting over water by any means, it just marks the end of one (very) large chapter. Water quality issues remain significantly unresolved as Richard Manning's reporting in the High Country News last month made clear. The role the Environmental Protection Agency will play in monitoring or encouraging improvements is contentious to say the least, so much so that Congress is imagining it needs to pass a law about what constitutes "science." (Perhaps the EPA will respond by defining what of Congress' output constitutes "toxic waste"; Administrator Gina McCarthy gave it a shot, of sorts back in April.)

The connection between these disparate dots is Adam Liptak's "sidebar" describing the Supreme Court's pulling "facts" out of its briefs, when said briefs support an argument they'd like to make. Scalia's self-satisfied mug adorns the story, for his criticism that as an appellate court, they shouldn't even be talking about facts that weren't originally in evidence. It wouldn't be the first time a strict legal argument swims against the flow of common sense, but both are subject to the tide of confirmation bias. And meta-confirmation bias:

"In the Hobby Lobby case, Justice Samuel A. Alito Jr. pushed back against the recent trend, refusing to consider “an intensely empirical argument” in an amicus brief. “We do not generally entertain arguments that were not raised below and are not advanced in this court by any party,” he wrote."

Which would be nice if it were so, but it is not so. College of William and Mary law professor Allison Orr Larsen, quoted in a colleague's blog post:

"This descriptive statement by Justice Alito about Supreme Court practice is simply incorrect. As I have documented before, independent judicial research – research beyond the records and outside of the party briefs – is very common at the Supreme Court. See Larsen, Confronting Supreme Court Fact Finding, 98 Va Law Rev 1255 (2012). In fact, Justice Alito himself was actually called out by Justice Scalia for his 'considerable independent research' on violent video games when the Court found such games protected by the First Amendment a few terms ago. Nor have the Justices been shy about citing 'intensely empirical' amicus briefs or even their own independently-discovered empirical studies in the past on subjects as varied as economics, medicine, psychology, and even terrorism-funding practices. In short, they do it all the time."

Note the citation, since "blog posts" are one of the sources deprecated here, along with "emails or nothing at all." Professor Larsen has another journal article coming on the subject: The Trouble with Amicus Facts. Shorter:

"[A]nyone can claim to be a factual expert. With the Internet, factual information is easily found and cheaply manufactured. ... The result is that the Court is inundated with eleventh-hour, untested, advocacy-motivated claims of factual expertise. And the Justices are listening."


Tom von Alten
ISSN 1534-0007