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November 30, 2005

CAP Smear?

n March of 1984, the magazine of the Concerned Alumni of Princeton ("CAP") published an article that identified a female Princeton freshman by name and divulged information about her sex life.

Controversy about the article in CAP's magazine drew national attention, garnering two separate articles in the New York Times.

One hopes that this notorious and well-publicized incident was not among the reasons for which Sam Alito bragged about being a CAP member a year later when he applied for a job as a Deputy Assistant Attorney General.

Posted by Eric at 11:12 AM | Comments (3)

Women at Princeton: "The Fad of the Moment"

ere is an article from the New York Times on March 3, 1974, that describes the organization called "Concerned Alumni of Princeton" ("CAP") that conservative alumni founded in the fall of 1972.

CAP is in the news because Supreme Court nominee (and my old boss) Sam Alito bragged about being a member of the organization in his 1985 application to be one of Attorney General Ed Meese's top assistants.

"Co-education [of men and women] has ruined the mystique and the camaraderies that used to exist," said CAP's executive director at the time. "Princeton has now given in to the fad of the moment, and I think it's going to prove to be a very unfortunate thing."

Alito graduated from Princeton in the spring of 1972, just before CAP was organized.

Posted by Eric at 10:55 AM | Comments (1)

Maybe It Was "Pray Like A Pirate" Day?

f you're anything like me, you often find yourself lost in a little thought experiment: "If students at Bob Jones University lost a hand like Captain Cook," you ask yourself--or at least I do--"what would they want in its place?"

Well, here's the answer.

Posted by Eric at 7:21 AM | Comments (10)

November 29, 2005

Å Fïrst

hïs is reälly cøøl. Før the first time, I håve been linked by ä Swedish bløgger.

Posted by Eric at 6:48 PM | Comments (3)

There's Nothing New under the Sun.

ou may recall reading here that the German government recently rolled out a media campaign called "Du bist Deutschland" ("You are Germany") designed to inspire Germans to shake off the doldrums and again reach for greatness. (Oh, dear.)

The general idea of the campaign is to encourage today's Germans to link themselves with prominent, inspiring, high-achieving Germans of the past and present.

I cried foul when I saw that the campaign was using Albert Einstein, a German Jew who fled the approaching Holocaust. Apparently I was not the only one: this German poster carries Einstein's picture, changes the "Du bist Deutschland" slogan to "Nie wieder Deutschland" ("Never Again Germany"), and carries this lengthy quote from Einstein himself in 1944: "By a deliberate plan, the Germans struck millions of civilians so that they could take their place. They would do it again if they could. The handful of good apples among all the bad do not change a thing. The Germans are responsible as a people for these mass murders and must be punished as a people for them if there is justice in the world."

Now we learn that the "Du bist Deutschland" campaign didn't start in 2005. It started seventy years ago. Consider this 1935 photo from a German archive, which is making the rounds of the German blogosphere:

Es gibt nichts Neues unter der Sonne.

UPDATE: Several commenters from Germany have pointed out that the "Du bist Deutschland" campaign is not government created, but privately sponsored. Moreover, an outcry about the campaign in the German blogosphere is generating scornful responses from the German mainstream media, which are said to have a stake in the advertising campaign itself. Interesting.

Posted by Eric at 8:25 AM | Comments (5) | TrackBack

November 28, 2005

Sam Alito and CAP: Disturbing.

ny Princeton alumni out there who can either confirm or refute this pretty devastating characterization of Concerned Alumni of Princeton, a group in which Sam Alito proudly claimed membership?

Posted by Eric at 7:39 PM | Comments (7)

Just Two Days Left to Name My New Book.

emember: the entry deadline for the IsThatLegal "Name My Book" contest is this Wednesday, November 30, at 5:00 p.m. Eastern! You could win a $20 gift certificate to Barnes & Noble!

Posted by Eric at 1:41 PM | Comments (1)

Famous Kids.

had the good fortune to be in my car in the New York area on Saturday morning, which allowed me to listen to the excellent public radio show Studio 360. This week's show was about how the artist children of super-famous artists cope with their parents' fame. Roseanne Cash was the main guest. Interspersed with her interview were segments on Frieda Hughes, the poet daughter of Sylvia Plath and Ted Hughes, and Ziggy, Damian, KyMani, Julian, and Stephen Marley, the musician sons of Bob Marley.

One of the best shows I've heard on the radio in a while. Check it out.

Posted by Eric at 12:04 PM | Comments (1)

November 26, 2005

The Persistence of Caricature: Stoic, Forgetting Japanese Americans and Voluble, Obsessive Jews in the L.A. Times

wish I could recommend to you this lengthy article from the LA Times magazine in which a Jewish journalist author muses about the differences between his Japanese American wife's family's (and, by extension, all Japanese American families') effacing of their history and his own Jewish family's (and, by extension, all American Jewish families') obsessing over their history, but I can't. For both categories of families--Japanese American and Jewish--the author makes the classic mistakes of generalizing from too small a data pool, and of embracing rather than challenging cultural stereotypes.

There are plenty of Japanese Americans with crystalline memories of their wartime experiences, and plenty of Jews who recite and remember almost nothing. There were and are (contrary to the author's assertions in the piece) great Japanese American novelists (and other artists) who have chronicled and interpreted the internment experience, and there are a number of organizations "reminding us of internment."

Most disturbingly of all, the author writes:

As I thought about that conversation in the days that followed, I decided that I might have been looking at George and Nancy in the wrong way all along. Perhaps it wasn't that their long, self-imposed silence had somehow obscured their sacrifice; perhaps their truest sacrifice was the silence itself. After all, there had been those in the camps who rose up in revolt, just as there had been Japanese American draftees who refused to fight and litigants who challenged the internment. But George and Nancy had never condoned the airing of such grievances; if anything, they resented it. In the end, they wanted the same things for their children that all Americans want—a sense of belonging. Could they really have provided that and demanded justice at the same time? Perhaps it wasn't shame that swallowed their narrative. Perhaps they bore their burdens silently so their children wouldn't have to.

Set to one side the fact that this silence-as-sacrifice trope is a sixty-year-old resurrection of the same racial views that led so many in the government confidently to heap suffering on Japanese Americans, expecting that they would absorb it in the name of proving their Americanism. What exactly does this passage say about those (and there were many) who did resist internment in one way or another, and their relationships with their children? Did the author talk to any of them--my friend Karen Korematsu-Haigh, to take just one example--and ask them whether their "sense of belonging" in America was compromised by the example of protest their parents set? I suspect not.

I say something rather different about the supposedly silent suffering of Japanese Americans in the Afterword of my book Free to Die for their Country, which, like this recent article, is about the hundreds of young Japanese American men who resisted the draft in World War II. I comment on the message of silent endurance that is embodied in the Japanese American internment monument that stand a few blocks from the Capitol Building in Washington, DC:

"There is much here to celebrate. But there is also something sad, even tragic. What, ultimately, does this monument say to its visitors, the countless American tourists who wander through it? It teaches the lessons of the tanka poet: Bear the sting of injustice for future generations. Endure the unendurable, and you will be rewarded. Assimilate through silent suffering. Gaman suru. Perhaps this is part of what has led white America to look upon Japanese Americans as a 'model minority': when the nation punished them with its racism, they endured it.

"The Nisei draft resisters did not simply endure it, and in large and small ways, they have paid the price of their heresy ever since. There will never be a monument to the Japanese American draft resisters of World War II in our nation's capital, or for that matter, anywhere else. Yet these young men were patriots; in their willingness to risk the condemnation of their community, they showed courage. They were the nails that stuck up. True to the prediction of their Japanese forebears, they got hammered. Perhaps now, fifty-five years later, we can begin to hear in that hammering the construction of a truly American identity."

Posted by Eric at 8:06 AM | Comments (5)

November 23, 2005

"Judgments Judged and Wrongs Remembered"

'm thrilled to announce the online publication of "Judgments Judged and Wrongs Remembered: Examining the Japanese American Civil Liberties Cases on Their Sixtieth Anniversary," a symposium issue of the interdisciplinary journal Law & Contemporary Problems. My Foreword, which briefly introduces each of the twelve articles, is here. And the dedication of the issue to the memory of Fred Korematsu is here.

Each of the articles is available online in full-text, and also in pdf format. You'll find lots of provocative reading if you're interested in the Japanese American internment of World War II and its relevance to current debates on antiterrorism policyand racial profiling.

Posted by Eric at 9:09 PM | Comments (2)

November 22, 2005

Announcing the IsThatLegal "Name My Book" Contest!

said I suck at coming up with book titles, right?

This creates an opportunity for you, dear reader.

It's the IsThatLegal Name-My-Book Contest!

I will award a $20 Barnes & Noble gift certificate to the person who, before 5:00 p.m. Eastern on Wednesday, November 30, 2005, submits what is, in my sole estimation, the best proposed title for my new book.

All you need to do is download and read this very short draft introductory chapter and then leave a comment here with your proposed title. Be sure to leave your email address too. On Friday, December 2, 2005, I'll announce the winner and send along the gift certificate via email (unless the below-stated condition of pervasive suckiness obtains).

If the winning proposal actually ends up as the book's real title (that is, if neither I nor the book's publisher ends up coming up with anything better), I'll acknowledge the winner in the book's "acknowledgements" section too. On the other hand, if I think all of the submitted proposals suck about as badly as anything I could come up with on my own, then nobody gets a damn thing.

Offer void where prohibited. Tax, title, license, dealer fees, and optional equipment extra. Special Low APR financing available on approved credit. Any dispute arising under this offer shall be governed by laws that I make up. Past performance is not a guide to future performance and no representation or warranty is made as to future performance of any of the investments mentioned on the Site.

UPDATE: Out for a bike ride, where I seem to do my best thinking, I came up with a passable idea. I'll put it below the fold so that those of you who wish to enter the contest won't be tainted by my ideas unless you want to be.

FURTHER UPDATE: I'll be traveling much of the rest of the day (Tuesday), and won't be able to screen comments until late tonight. So if you post a suggestion and it doesn't appear; don't despair. I'll post 'em late tonight.

FURTHEST UPDATE: Back online, I find dozens of incredible suggestions. Some of them leave me speechless. Some of them make me laugh. Just amazing. Thanks to everyone who has submitted a suggestion ... and keep 'em coming!

Spy Hunting and Bean Counting: The Government and Japanese American Loyalty in World War II (posted 1:15 p.m., 11/22/05)

Check back here in this space for other ideas that occur to me from now until the end of the contest.

Posted by Eric at 12:28 AM | Comments (253) | TrackBack

November 21, 2005

How About "Loyalty Oafs: Bumbling Bureaucrats and Japanese American Loyalty, 1942-1945?" ... Nah.

've spent much of the last year researching and writing a new book, and am very nearly finished. I am now at the stage I detest: thinking of a title.

My first book, which was about Japanese American internees who resisted the military draft, was called "Free to Die for their Country"--a title I really love. Naturally, I had nothing to do with it. Somebody at the University of Chicago Press came up with it.

Back in high school and college, I always avoided the dilemma of serious and appropriate titles for my English papers by coming up with dumb puns. (I recall, for example, a paper I wrote in sophomore year of college about somebody-or-other's rather scathing critique of "Jude the Obscure;" I called the paper "No Laurels for Hardy.")

Somehow that sort of thing just won't do at this stage in life, however.

The book is about the government bureaucracies in World War II that ruled on the loyalty or disloyalty of 40,000 individual U.S. citizens of Japanese ancestry.

Suggestions are most welcome.

Posted by Eric at 7:06 PM | Comments (10)

Michelle Malkin's Denial.

ichelle Malkin (at around 4:50 of the linked segment), responding to the very tough question from her interviewer, "What has made these unhinged liberals so unhinged?": "I'm sick of people attacking me as some sort of a sock puppet that can't type my own words or write my own columns or come up with my own ideas or do my own investigative work."

(Note, incidentally, that every significant idea in Malkin's 2004 book "In Defense of Internment" first appeared in David Lowman's book "MAGIC: The Untold Story of U.S. Intelligence and the Evacuation of Japanese Residents from the West Coast during WW II (Athena Publishing, 2000)" and Keith Robar's "Intelligence, Internment & Relocation: Roosevelt's Executive Order 9066: How Top Secret "MAGIC" Intelligence Led to Evacuation" (Kikar Publications, 2000). Note further that Malkin hired a professional researcher, Thomas Culbert of Aviation Information Research Corporation, to do archival research for her internment book; she thanks him in the book's acknowledgements section for "going above and byond the call of duty in locating documents, photographs, and other useful information." And note finally that she has publicly thanked a number of other people for sharing their internment-related research with her.)

UPDATE: Essential reading on the subject from David Neiwert.

Posted by Eric at 10:20 AM | Comments (2)

November 18, 2005

Good Talk Radio: Malkin on Greensboro's WZTK-FM

just heard Michelle Malkin interviewed on the Brad & Britt Show on WZTK-FM in Greensboro, North Carolina.

Malkin was plugging her new book and making its argument that America's liberals are crazy, violent, and unhinged. Brad Krantz, one of the show's hosts, was having none of it. I think this is the first time I've ever heard a radio talk show host really take her on.

Brad also asked her whether there's anything to all of the chatter out there on the internet that her husband writes some of the material that's published under her name. She denied this categorically, calling the suggestion "comical."

UPDATE: Malkin blogs about this interview exchange here. One correction. She says this: "During one of countless book-related radio interviews this week, a liberal radio host insultingly asked me whether I write my own column." On the radio show, when Brad Krantz asked her what she thought of the story swirling around the web that her husband writes some of her material, she responded with enthusiasm, and said that she was "glad" he had asked the question.

FURTHER UPDATE: In the comments below, Brad Krantz of WZTK-FM responds to Malkin:

I would argue that the use of the word "liberal" has become an ad hominem attack on anyone who is not a card-carrying (oops, another slur) conservative (whatever that means, these days). Sadly, Mrs. Malkin believes she has some sort of right to never be made the slightest bit uncomfortable when she goes on talkradio... that the hosts are there to lob softballs about the topic of her book and let her vent. If you heard the segment (I'll get it up on our website, fmtalk1011.com by tomorrow.... it was not 1/10th as confrontational or ugly as when a Hannity or O'Reilly badgers, berates, and interrupts a guest. It's just that the rules of engagement apparently are different with the central-casting conservatives who never are supposed to challenged on their central point that overshadows all others: Conservatives Good... Liberals Evil.

Malkin barely bristled when I politely asked her about the rumors floating around the net... I did not personally accuse her of not writing her own material. She handled it with class, I thought at the time. To then see her explode playing the victimhood card in print two days later is sad... especially when she's promoted her book by reading the vile, racist hatemail she's received over the years, gleefully using it to "prove" her point that nearly all liberals feel vicious, racial hate for her.

Anyone who's listened to our show knows we whack Dems as well as Repubs. Ask Mike Easley, Gov. of NC. Or John Edwards, who refuses to come on the show because he thinks I'm a flaming righty who'll sandbag him.

STILL FURTHER UPDATE: Ed Cone has a partial clip of Malkin's appearance on the Brad and Britt show.

Posted by Eric at 9:58 AM | Comments (28)

But What If She Really Is a Bitch?

he owner of a tavern in Lingle, Wyoming, has been charged with violating the town's obscenity ordinance for calling her place "The Bitch's Corner Bar."

Posted by Eric at 9:20 AM | Comments (6)

November 17, 2005

Verily I Say Unto Thee: Pack Thou Heat.

ver at Volokh, David Kopel continues to line up the historical figures who oppose gun control. Last week it was the six million Jewish victims of the Nazis; this week it's Martin Luther.

Who's next?

UPDATE: Well, that was quick. It's Rudyard Kipling.

Posted by Eric at 8:26 PM | Comments (17)

How Does Sam Alito's Application Stack Up?

t appears that Sam Alito's (and the Administration's) explanation of the political and jurisprudential views in his 1985 job application will be ... that it was a job application. He was seeking an ideological job, we are told, and reported his views and positions accordingly.

I, for one, would like to see the job applications that others have tendered for that position, in both Republican and Democrat administrations, in order to get a sense for how ideological and partisan people typically are in responding to the question and in presenting themselves. I think that would give us some useful information about how to consider Sam Alito's self-presentation.

It may be that FOIA would bar the disclosure of other people's applications. Perhaps a reader knows the answer to that question.

Posted by Eric at 3:41 PM | Comments (2)

"Soon We'll Say Goodbye/Then We'll Work Until We Die"

y twenty-fifth high school reunion is a week from tomorrow.

I'm getting ready by listening to the superb song "Prom Theme" by Fountains of Wayne. A pitch-perfect rendition of (somebody else's) memories of high school.

An excerpt from the lyrics:

Here we are at last
The moment soon will pass
We'll go our separate ways
We'll vanish in the haze
We'll never be the same
We'll forget each other's names
We'll grow old and lose our hair
It's all downhill from there

But tonight we'll reach for the stars
We'll rent expensive cars
And dream our dreams
Of a perfect night
And we'll sing our prom theme

The music is reminiscent of an over-produced "Let It Be"-era McCartney ballad. Exquisite.

Posted by Eric at 9:43 AM | Comments (2)

November 16, 2005

Yale Law Schul

than Leib reports that during his time at Yale Law School, he found the place very Jewish, and "was sensitized to the way this annoyed and alienated some of [his] fellow students." He asks for comments from other YLS alumni.

It was, I think, impossible to be at the law school in the mid-1980s and not notice the large number of Jewish faculty members. Abe Goldstein, Joseph Goldstein, Robert Burt, Owen Fiss, Bob Cover, Paul Gewirtz, Perry Dane, Guido Calabresi, Micheal Graetz, Tony Kronman (I think; isn't he?); Harold Koh. (OK, just kidding about that last one).

By the same token, I don't remember thinking that there was a disproportionate percentage of Jews among my fellow students. Couldn't have been more than 65 percent. (OK, kidding about that too. In honesty, I meant what I said before the punchline: I was actually struck by how small the percentage of Jews was in my class, not how large.)

Did the large number of Jewish faculty members make Yale Law School "feel" Jewish to me? Decidedly not. In fact, something close to the opposite was true. It was Yale, for God's sake. Surrounded by all of that Collegiate Gothic architecture, the flying buttresses, the stained-glass windows, the wood-paneled halls, the portraits of serious-looking long-dead patricians, the law school seemed utterly un-Jewish to me. It felt to me--and I'm not saying this just for effect--that in some small way all of the Jews on the faculty didn't really belong there, that they'd sort of snuck in and were running the place until the real faculty got back.

As for Ethan's report that his non-Jewish classmates were "annoyed" by Yale Law School's "Jewishess," I'd be very interested to hear how they communicated that, and whether they reported being similarly "annoyed" by the non-Jewishness of the rest of the world around them.

Posted by Eric at 4:37 PM | Comments (5)

That's A Relief.

ig news: Deal Reached on Managing the Internet

I'm glad that's settled. Now let's get to work on cold fusion and cat-herding!

Posted by Eric at 10:20 AM

November 15, 2005

The Carnival of the Past

t's ... History Carnival XX! Lots and lots of good reading and good links.

Posted by Eric at 4:35 PM

Unhinged -- Right Here!!

had no idea that this blog figured in Michelle Malkin's new "book." But it does, a little. Details here.

Dave Neiwert's worth a read as always, too.

Posted by Eric at 4:26 PM

November 14, 2005

"I Personally Believe..."

his, spotted just now at Atrios, strikes me as a major development:

Judge Samuel A. Alito Jr., President Bush's Supreme Court nominee, wrote that "the Constitution does not protect a right to an abortion" in a 1985 document obtained by The Washington Times.

"I personally believe very strongly" in this legal position, Mr. Alito wrote on his application to become deputy assistant to Attorney General Edwin I. Meese III.

Posted by Eric at 11:22 AM | Comments (7)

Blue Morning, Blue Day, Won't You See Things My Way?

've been meaning to recommend a new blog to readers from, or interested in, North Carolina and its politics: BlueNC.com. It's a group of left-of-center bloggers who write (mostly) about North Carolina stories from a left perspective. Good writing, good coverage. Check 'em out.

(Thanks to Foreigner for inspiring the title to this post.)

Posted by Eric at 8:19 AM

November 12, 2005

Now This Just Stinks.

ccording to this story, the U.S. Army took 25 Japanese American soldiers in World War II and used them as bait for attack dogs, to train the dogs to respond to the "Japanese smell":

"Hawaii soldiers like Nosaka and Ono were shipped to jungle areas in Mississippi, where the dogs would chase them. With padded clothing for protection, they were also told to wear pieces of meat around their neck so the dogs would lunge at their throat."

Posted by Eric at 6:28 PM | Comments (5)

November 11, 2005

Legal History: It Can Be Very Interesting!

s I said last night, I'm in Cincinnati at the annual meeting of the American Society for Legal History.

This is my first step back into the world of academic conferences after what I like to call "the Great Vancouver Massacre of 2002." That was when I traveled across the continent to the Law & Society Association's annual meeting to lead a session I'd organized about three recent books on the Japanese American internment (including my own), and one person attended the session.

(I know, I know, it's stupid to post embarrassing stuff like this. I figure that if I use the blog for self-promotion, I need to balance it with occasional self-ridicule.)

The morning's panels were excellent. I heard a really interesting paper about the roles that women played in English probate cases in late 17th-century England, a riveting account of the post-Vichy trials of collaborationist judges in France, a beautifully written and very engaging paper about the battle against compulsory school vaccination laws in the early 20th century, and a fascinating account of WWI conscientious objectors.

My talk is this afternoon, and it's about the bureaucracy that was created in 1943 to adjudicate, on a case-by-case basis, the loyalty or disloyalty of 40,000 American citizens of Japanese ancestry.

Posted by Eric at 8:04 AM | Comments (3)

November 10, 2005

In Wyoming, When You're Jewish, I Guess It's News.

omebody please explain to me the relevance to this story of the fact that the anti-war speaker in question's mother is Jewish.

Posted by Eric at 11:02 PM | Comments (6)

A Puzzle: The Economics of Hotel Wireless.

'm in Cincinnati for the annual meeting of the American Society of Legal Historians. The conference hotel is a fairly swank place, the Hilton Netherland Plaza.

My deep, probing thought for the evening: why is it that when I stay at, say, a Comfort Inn, for like $79 a night, I get free wireless, but when I stay at one of these fancy-pants hotels, for like $129 a night, they charge me $10 for 24 hours of access via what seems to be a 6-inch-long ethernet cable?

Posted by Eric at 10:23 PM | Comments (10)

They Were "Out."

don't know a ton about the history of baseball, but this story about baseball at a Japanese American relocation center during WWII struck me as interesting.

Posted by Eric at 10:18 PM | Comments (1)

The Art of Commemorating

ally Greene has a post up this morning about public memorial art, occasioned by discussions about a newly unveiled piece on the UNC campus commemorating the slaves whose labors built the early university.

Posted by Eric at 8:13 AM | Comments (1)

November 9, 2005

The Martyred Six Million Call To Us: "Oppose Restricitive Gun Laws!"

avid Kopel commemorates the 67th anniversary of Kristallnacht by getting to the nub of the problem: Jews didn't have guns to defend themselves against the Nazis.

That must be right. The Jews in the Warsaw ghetto had guns, and look how well that went!

Posted by Eric at 3:20 PM | Comments (8)

November 8, 2005

Priorities

ord surfaces of a secret, global, extra-legal U.S. prison system, and the Republican congressional leadership snaps into action, ordering an investigation ...

... into how word surfaced.

Posted by Eric at 11:16 PM | Comments (6)

A Question for Jerry Kilgore.

oes this mean that Virginia voters support Adolf Hitler?

Posted by Eric at 10:49 PM | Comments (2)

November 4, 2005

Fantasy? Or Nightmare?

add 345 points to Team UNC. Go Tarheels!

Posted by Eric at 3:33 PM | Comments (6)

"Tojo Determined To Strike In Hawaii?"

or the last several days I was in the DC area doing archival research at both the downtown and College Park branches of the National Archives for two current writing projects. God, are these exhausting trips. Exhilirating, in a pathetically geeky sort of way. But exhausting.

I'm not knowledgeable enough about the military history of the Pearl Harbor attack to know whether a document that I found is news to anyone who actually knows about Pearl Harbor, but it was certainly news to me.

Now, I do know that the "treacherous sneak attack" was a surprise only in location; a good 10 days before 12/7/41, American military around the world were notified that negotiations were going nowhere, war with Japan was imminent, hostilities might erupt anywhere at any moment, and--most importantly--that President Roosevelt very much wanted to Japan to strike the first blow.

But what I didn't know was that Stanley Washburn, apparantly an old friend of Admiral Frank Knox's, wrote to Knox on November 29, 1941, predicting that the Japanese would attack at Pearl Harbor.

Here's the heading of the letter:

And here's the money paragraph. (It's the last line; you can skip the stuff about all "brown" men being spies at heart):

"Prepared for that contingency?" Not so much, actually.

Are there any Pearl Harbor experts out there among the readership of this blog? Is this letter common knowledge? Iisn't this letter at least the WWII equivalent of "Bin Laden Determined To Strike In U.S."?

UPDATE: Lots more information here.

Posted by Eric at 10:54 AM | Comments (17)

November 3, 2005

Pray Ball!

his morning I saw this AP story about a group of Muslim men who were detained and questioned during a pro football game at Giants Stadium because they were praying near an air duct on a night when ex-President GW Bush was present.

My initial thought was to blog the story from this angle: "Some people are going to scream about this incident as a civil rights outrage, but what would they have had law enforcement do? Ex-President Bush was in the stadium along with 80,000 other people; they drew attention to themselves by praying in a group--something that people don't usually do at football games;** they were near a structurally important air duct; law enforcement approached them while this was going on and briefly checked it out; and that was the end of it."

But something about the story nagged at me: the cops did not allow the praying Muslims to return to their own seats, but reseated them in a different part of the stadium, sat nearby and watched them in the new seats, and then walked them to their cars at game's end. This struck me as inconsistent with the "just doing their jobs" angle from which I was seeing the story.

So I read the much fuller account of the incident in the Newark Star-Ledger. And there's more to it than the AP story reports.

The Muslim men were not approached by law enforcement while praying near the air duct. They prayed there briefly early in the first quarter (one of five daily prayers required by their faith) and then went to their seats. They sat there without incident through the rest of the first half, and through halftime. It was not until the beginning of the third quarter that the group of thirteen cops approached them and took them away, to the jeers of surrounding fans. They were then questioned for around a half hour, and the questions went beyond an investigation of what they'd been doing by the air duct in the first quarter. The cops asked them "about their faith, how often they pray, what mosque they attend," and then whether "they knew 'the Sheik,' a reference to Sheik Omar Abdul Rahman, the blind Egyptian cleric convicted for his role in the 1993 World Trade Center bombing." They were not physically searched.

They asked to be returned to their seats, to show those who'd been jeering at their removal that they had every right to be there. The cops refused, though; they insisted on reseating them elsewhere in the stadium and in watching them during the few minutes of the fourth quarter that remained once they'd been resettled. Then they walked the men to their cars.

On balance, with a fuller sense of the facts, I still don't find the behavior of law enforcement to be outrageous, but I'm more troubled than I was upon reading the AP story. Is there anything that these men could have said or done to dispel the suspicion that descended on them solely because of their appearance and religion? Once they cops had finished questioning them for a half hour--about much more than just what they were doing during the first quarter--the cops should have been in a position to make a judgment about whether they were or were not suspicious. Obviously, though, the cops remained suspicious, even after the lengthy questioning. What was left to ground their suspicion, other than how the men looked? Why could they not be trusted to return to their own seats? If they were going to be watched, why couldn't they be watched in their own seats, rather than new ones? Why the escort out of the stadium at game's end?

I know, I know; GW Bush was in the stadium. It was an "abundance of caution." I get it. But it's worth noting that this "abundance of caution"--which produced a lengthy detention, some pretty intrusive questioning, and jeers from neighboring spectators, was grounded on ... nothing. Surely at some point in the interaction the cops were in a position to figure out that there was nothing there--other than the fact that the men were Muslims. Yet they kept at it.

**As I typed this, I realized that it's not at all uncommon for people to pray at football games. Players do it, and school districts litigate Establishment Clause cases so that whole stadiums full of people can do it. What was uncommon here was that the men were engaging in Muslim prayer.

Posted by Eric at 6:52 AM | Comments (6)

"Unhinged" Upended

ssential reading: David Neiwert turns his sharp attention to Michelle Malkin's newest project, and by the time he's finished, there is a smoking hole in the ground where the project once was. Check it out.

Posted by Eric at 6:26 AM | Comments (9)

November 1, 2005

Will Sam Alito Respect Earlier Opinions With Which He Disagrees?

eople trying to figure out how respectful Sam Alito will be as a Supreme Court justice to prior Supreme Court decisions (can you say "Roe v. Wade?" I knew you could.) will want to take a very close look at two decisions of the U.S. Court of Appeals for the Third Circuit: ACLU v. Schundler (1997) and ACLU v. Schundler (1999). The second of them, which Alito wrote for a divided Third Circuit panel, suggests a judge who is quite eager to brush aside earlier opinions with which he disagrees.

Both opinions grew out of the same case, an effort by the ACLU to block Jersey City from placing a creche and a menorah, along with some seasonal decorations, in front of City Hall. The ACLU's claim was that the display violated the First Amendment's Establishment Clause.

Jersey City argued in federal district (that is, trial) court that the display complied with the Constitution (as interpreted in a number of Supreme Court decisions) because the sleigh and the Santa Claus and the Frosty the Snowman and the Kwanzaa ribbons that it added to the creche and the menorah "demystified" thtose two religious symbols--that is, drained them of their religious meaning.

In the first of the two Third Circuit opinions, a panel of three judges (Nygaard (Reagan appointee), Lewis (GHW Bush appointee) and McKee (Clinton appointee)) held that the district court erred in its "demystification" analysis, spelled out the correct analysis, stated that it did not see the supposedly secular additions to the display as stripping the display of its message endorsing religion, and remanded the case to the district court to apply the correct analysis.

The district court did just this, following the Third Circuit's instructions.

Jersey City again appealed. This second time, the case came before a mostly different panel: Judge Nygaard (Reagan appointee) was on it again, but now he was joined by Judges Rendell (Clinton appointee) and Alito (GHW Bush appointee).

Over a strong dissent by Judge Nygaard, Judge Alito upheld the display. Although the earlier panel had been quite clear in saying that Frosty and the sleigh and the Kwanzaa ribbons did not defeat the display's message of religious endorsement, Judge Alito characterized that as "dictum" in the earlier opinion (that is, legally non-binding commentary, rather than legally binding precedent), and concluded that the supposedly secular doo-dads in the display actually did make the display satisfy the First Amendment.

Judge Nygaard was, to use a piece of appellate technical jargon, "pissed." "This constitutional about-face in the same case," he said, "troubles me greatly, strikes to the core of the legitimacy of our jurisprudence, and exposes us to well-earned criticism for inconsistency and for giving insufficient respect to an earlier instruction by the Court." Judge Nygaard was of the view that only the Third Circuit en banc (that is, all of its members together, as opposed to just a panel of three) could set aside an earlier panel's opinion like this.

As a technical matter, Judge Alito may have been right that the first panel phrased its analysis in a way that turned its sharp condemnation of the Jersey City display into dictum. The condemnation was, however, so clear (and unanimous) that surely Judge Alito could have chosen to honor it, or pressed for en banc consideration of the case, rather than just pushing it aside and replacing it with his own vision of the right outcome under the Establishment Clause.

If Senators are interested in understanding how Sam Alito thinks about how much deference a court's earlier pronouncements deserve, they should question him closely about what it was that led him to choose to abandon the clearly expressed, unanimous view of an earlier panel in the same case, rather than honoring it or seeking the ruling of the entire Third Circuit sitting en banc.

Posted by Eric at 11:55 PM | Comments (10)