« October 2008 | Main | December 2008 »
Here at Holy Hullabaloos: The Blog, we have much to be thankful for on this Thanksgiving Day. Today marks our one month anniversary in the blogosphere, and we are delighted to report that in this first month, we've had over 9,000 page views. Thank you so much for coming, lovely readers, and we hope you will return to read more when we return to write more, which will be next Monday. I mean Memoir Monday!
Happy Thanksgiving.
Well, the November sitting of the Supreme Court has ended, and that means it's time to update the Supreme Court oral argument humor standings. When last we looked at the data, Justice Scalia had jumped out to a substantial lead over Justices Roberts and Breyer. He's solidified that lead with an impressive follow-up performance in November, but before we get to that, I think it's worth singling out the Supreme Court advocates who were able to get a laugh from the gallery this sitting. Four different lawyers performed this feat--something that Justices Alito, Ginsburg, and Thomas were unable to do, despite being present for all of the Court's November arguments. Getting a laugh as a lawyer at the Court is no easy task. These people are focused like crazy on the law, facing the most intimidating bench in the nation, and talking about profoundly unfunny things, so to be able to throw off a quip that actually makes people laugh is pretty impressive.
Two of the four jokers this time around were representatives of the Justice Department--Gregory Katsas, the Assistant AG for the Civil Division, who got a laugh in Negusie v. Mukasey by pointing out that an "extreme position" that Justice Scalia had just mocked was luckily not the one he was advancing before the Court. Solicitor General Gregory Garre (so many Gregories!) got a laugh in the fuck and shit case by referring to the machine that bleeps out dirty words on television as a "bleeping machine." Unwilling to be outjoked by the government, Sidley & Austin super-Supreme Court-lawyer Carter Phillips also got a joke in that case, although it would require several law review article-length posts to explain why what he said about the Administrative Procedure Act was even arguably funny.
Finally, Stanford Law School's Jeffrey Fisher got a laugh in the Confrontation Clause case of Melendez-Diaz v. Massachusetts. Assigning this laugh to Fisher instead of Chief Justice Roberts is, admittedly, controversial. If you look at page 23 of the transcript, the "(laughter)" notation comes directly after Fisher's statement, but it's unclear whether the laughter was really instigated by Justice Roberts' question. The reason I'm giving this laugh to Fisher instead of Roberts is because Fisher is a friend of mine and I really like him and he deserves it.
Before Fisher became a big-time famous Supreme Court litigator (first at Davis Wright Tremaine in Seattle and now at Stanford Law School) who has basically convinced the Court to rewrite a variety of areas of criminal law, all for the better, he was--just like me--a summer associate splitting his summer between Williams & Connolly and Jenner & Block's DC office during the summer of 1996. If it was not clear already that Fisher was going to turn out to be way more successful than me from the fact that he is twice as tall, five times as good looking, and fifteen times more athletic than me, then that summer made it undeniable. I'm not exactly sure of this, but I think Fisher was actually made partner at W&C during that summer. I, on the other hand, was invited and then disinvited to a Fourth of July barbecue at a partner's house, and then mocked incessantly for allegedly bringing a worker's comp claim against the firm for my carpal tunnel syndrome (this was not actually true, though I did go to the ER for the wrist problem). Then at Jenner, I spent all my time writing memos to low level state bureaucrats regarding the authority of banks to sell alternative financial instruments while Fisher, I swear to God, developed an actual Supreme Court practice in six and a half weeks.
The thing about Fisher, though, is that he's one of those rare people who is not only ridiculously smart and sucessful, but also happens to be a terrific, kind, funny, and all around great guy. In a profession where there are a lot of successful people out there to hate and envy, it's good to know that some people truly deserve their fame and success. Fisher's one of them. Plus, I think his hair might be slightly thinning, so that's pretty sweet.
Oh yeah, the Supreme Court humor update. Here are the running totals, with November's results in parentheses:
Scalia 25 (11)
Roberts 15 (6)
Breyer 10 (4)
Souter 7 (4)
Kennedy 5 (2)
Stevens 3 (2)
Alito 2 (0)
Ginsburg 0 (0)
Thomas 0 (0)
Regular readers of Holy Hullabaloos: The Blog will know that we here are doing our part to help President-elect Obama and his hard-working transition team by occasionally recommending potential nominees to high political posts. In our first two recommendations, we endorsed Randy Moss (the lawyer, not the football player) for the Supreme Court and Sarah Vowell for the National Archivist. Today we are simply tickled pink to announce our third endorsement: Tennessee Tuxedo for Director of the National Black and White Zoo.
Ok, so this endorsement is a little more dicey than our other two, we realize. For one thing, there is no National Black and White Zoo. Really, though, who would deny that there should be one? Who wouldn't welcome with open arms a sanctuary where wide-eyed visitors, young and old alike, can come gaze at all the weird animals that are both black and white--penguins, pandas, zebras, killer whales, skunks, dalmations, and the like. We have previously, in another fora, explained this concept at some length, and we don't feel like the idea needs any further justification here.
Assuming that President Obama does establish a National Black and White Zoo, it seems beyond dispute that Tennessee Tuxedo would make an ideal director for the institution. As anyone who has studied animated programs from the early 1960s will tell you, Tennessee Tuxedo was created in direct response to then FCC-Chairman Newton Minow's complaint that "television is a wasteland." Together with his dimwitted pal Chumley (a Walrus), Tuxedo worked tirelessly to improve conditions at the Megalopolis Zoo, which was run at that time by a George Bush like executive named Stanley Livingston, who consistently and thoughtlessly foiled the duo's good hearted attempts to make life more liveable for ordinary zoo inhabitants like Baldy the Bald Eagle and Yak the Yak, among others.
When faced with a difficult zoo-improvement-related situation requiring advanced scientific or practical knowledge (like how to start a newspaper to spread information and ideas throughout the zoo community), Tennessee and Chumley would inevitably seek out help from their scientist friend Phineas J. Whoopee, who would explain the relevant concept using his three-dimensional blackboard, which is an instrument that I myself would really like to have in the classroom. Tennessee and Chumley would try to implement Dr. Whoopee's suggestions, but they would always find their dreams squashed by the cruel and insensitive Mr. Livingston (i.e., "Republicans").
With his love of science and endless efforts to improve living conditions for the most needy among us, Tennessee Tuxedo would be a stellar choice for Director of the heretofore-nonexistent Black and White Zoo.
(it's true that Get Smart's Don Adams, who voiced Tennessee Tuxedo in the original series, is dead, but maybe Steve Carrell, who played Adams's character in the movie adaptation of Get Smart, could fill in? An administration with both Sarah Vowell and Steve Carell? That would be sweet!)
I've been writing fiction of one type or another since I was a kid. For the most part, up until a few years ago, it was terrible. I once "wrote" a "novel" called Arrivederci, Loser (named after a piece of hate mail my wife got from an ex-friend) which was so bad it makes me weep just thinking about it. It's hard to say what it was about. Suffice to mention that one of the plot lines involved a walking, talking blueberry muffin who had escaped from Pastry Land. There are a few excerpts from it on the "errata" page of my website if you want to cry a little.
For whatever reason--mostly because I started reading a lot of short stories I would guess--a few years ago I found a voice that, in my opinion anyway, is pretty decent. I would say that I've published about twenty stories in various online and print journals. There's a list of them, with links to the online ones and sound files of me reading some of the print ones, on my website if you're interested.
My most recent story, and the one I'm most proud of, is called "The Adventures of Ed Tuttle, Associate Justice," which was published in issue six of a great and very cool journal called Barrelhouse. I've always thought that being a Justice on the Supreme Court would be the best job in the world--not just because the job itself is so fascinating and involves so much power, but also because you can remain basically anonymous, which means that you can go about doing all the things in life that regular people do when you're not in the office.
Want to volunteer to play with kitties down at the animal shelter? Go ahead. Take part in high level Stratego tournament play? Knock yourself out. Go to a rave and dance like a fiend all night? Why not? I remember when I was clerking for Justice Ginsburg, she would occasionally take us all out for some event and even though she is very distinctive looking (I wonder why her glasses never caught on as a major fashion trend?), people wouldn't generally recognize her if she wasn't right near the Court (when she was walking around the Court, people did often recognize her, and she was incredibly gracious in saying hello, posing for pictures, etc.) The Ed Tuttle story explores the possibilities of this anonymity. It is about a Justice who has recently lost his wife and takes off for an extended summer vacation in Jackson Hole to escape from his life in Washington. While he's in Wyoming, he learns how to fly fish, rediscovers his sexuality, and realizes that it's still possible to be humiliated even when you've got life tenure.
If you're interested, you can buy a copy of the journal here . In addition to my story, there's a lot of great stuff in the issue--an interview with Bill Wyman, ex-bassist for the Rolling Stones--on his "land fishing" hobby, some art and stories about roller derby, and lots of excellent poetry and fiction, including my favorite, Joel Winbrot's "The Consequences of Sudden and Complete Oxygen Deprivation for the Actuary in Apartment 253 on the Morning a Pharmaceutical Sales Representative Missed Her Important Flight to LAX." There's a little review of the issue at NewPages.com, which is a great place to go to learn about what's happening in the lit journals. I'm giddily delighted that the reviewer singled out Ed Tuttle for some praise, saying that "Wexler succeeds in two difficult tasks: humanizing a member of the land’s highest court and earning laughs and empathy on the same page." Thank you, kind reviewer!
(and if there are any editors out there who'd like to see my short story collection "Objection! Stories About Lawyers and Non-Lawyers," my agent would love to hear from you.)
Last Sunday, President-elect Obama resigned his seat in the U.S. Senate. This was not particularly noteworthy. It's pretty much unthinkable as a practical matter that a President could also remain a Senator. But have you ever wondered whether it would be legal for a sitting President to remain a Senator? Why wouldn't it be?
With Holy Hullabaloos pretty much in the bag (I just finished going through copyedits, yay!), I've started work on a new book, which I'm tentatively calling The Odd Clauses: Twelve Parts of the Constitution You May Not Know About But Should, which is something I've wanted to write for a long time. The idea is to pick 12 (or maybe it'll end up some other number, but in any event, it will be about 12) of the weird clauses in the Constitution and explain them in plain language with memorable examples, a smattering of humor, and maybe some paintings of turtles. One of the clauses I'm going to take up is called the "Incompatibility Clause" of Article I, Section 6 of the Constitution. This clause says that "no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office." The framers of the Constitution put this clause in there presumably to avoid the situation, common in England, of the chief executive (the King there; the President here) bribing legislators (Members of Parliament there; Members of Congress here) to support his legislative programs by promising plum executive offices for those who played along.
I think most constitutional scholars would say that the Incompatibility Clause prohibits a sitting President from also serving as a Senator at the same time. They would say that the clause prohibits any person from simultaneously holding a position in both the executive and legislative branches. Not everyone thinks this, though. In a provocative recent article, Seth Barrett Tillman, who is a law clerk in Pennsylvania but has also written a slew of articles on constitutional law, argues that the President is not really an "officer" under the Incompatibility Clause and therefore could theoretically keep his or her Senate seat. It's a spirited argument, and although I agree with Steve Calabresi's counterargument that ultimately it's probably not the best interpretation of the Constitution, I do like to think about how bizarre it would be for someone to actually try and do both jobs at once. Maybe Obama should have considered it. Sure, someone would have sued, and maybe the Supreme Court would have to resolve the question, but if Obama had possessed the foresight to nominate himself to the Supreme Court (clearly allowed by the Constitution), perhaps he could rule in his own favor.
In today's concluding segment on the Pleasant Grove v. Summum case, I want to talk briefly about a collateral hullabaloo--a spinoff hullabaloo, if you will--that is both mentioned and in fact taking place on Howard Friedman's terrific Religion Clause blog, which I have previously touted as the best law and religion blog in cyberspace.
Friedman reports that the Monday before oral arguments were held in the case, a lawyer named Robert Ritter, who is the President of the Jefferson Madison Center for Religious Liberty and an author of an amicus brief in the Summum case, sent a letter to the Chief Justice, asking him to delay oral arguments "until such time as the Court publicly discloses . . . that a literal translation of the Hebrew on the tablet that Moses is holding on the Court's South Wall Frieze is opposite of the Ten Commandments. . . ." According to Ritter's comments following Friedman's posting, the architect of the frieze, Adolph A. Weinman, was "doing an anti-Semitic artistic spoof" by placing Moses's beard over some of the Hebrew letters on the tablet, such that the actual translations of the words displayed are "Thou Shall Commit Murder!" "Thou Shall Commit Adultery!" and "Steal!" rather than their opposites. Ritter wants the Supreme Court to acknowledge this literal translation as a "first step leading to federal judges faithfully upholding the Establishment Clause and remove the Fraternal Order of Eagles' Ten Commandments tombstones from government property in cities across the U.S. . . ."
The Supreme Court did not delay oral arguments in the case to make the requested disclosure, unsurprisingly, but the debate over the Ten Commandments has continued to rage over in the blog comments. Ritter originally accused the American Center for Law and Justice, counsel for the town of Pleasant Grove, of failing to disclose the literal translation of the Moses freize in some unrelated case taking place in Washington state. Ritter later apologized after Frank Manion of ACLJ pointed out that his organization had nothing to do with the Washington case and that Ritter should retract his "scurrilous" accusation (note to self: use the word "scurrilous" more).
Ritter did nonetheless accuse ACLJ of "spewing out" misleading statements about the relationship between the Ten Commandments and U.S. law generally in documents like the ACLJ's friend of the court brief in Van Orden, which is the Supreme Court decision upholding the Ten Commandments monument on the Texas Capitol grounds in Austin. In response, Manion quipped sarcastically: "As for our amicus brief in Van Orden, the portion you quote was penned by the brief's co-author, the late Harold Berman, Emeritus Professor of Law at Harvard Law School--a well known center for the spewing of Christian revisionist nonsense. The brief itself was cited in the dissenting opinion of Justice John Paul Stevens--that well known spokesman for the Religious Right."
Do you see why I think this area of law is so great?
With the Obama transition team working non-stop to get ready for the new administration to take over Washington in mid-January, we here at Holy Hullabaloos are trying to do our part to help by suggesting possible appointments to top government posts. We recently endorsed Randy Moss (the lawyer, not the wide receiver) for a high judicial post, and today we are proud to announce our second endorsement: Sarah Vowell for National Archivist.
Vowell is the author of five books, a contributing editor for This American Life on NPR, and the voice of teenage superhero Violet Parr in The Incredibles. She's a brilliant writer--quirky, funny, insightful, a bit morbid, and also quirky. Did I mention quirky? She also digs history. Her most recent book is called The Wordy Shipmates, about John Winthrop and the Puritans, and her masterpiece, in my view, is her previous book, Assassination Vacation, which recounts her road trip to places having anything to do with the assassination of the three U.S. Presidents who were both assassinated and not John F. Kennedy. As I've previously explained, it was while reading Assassination Vacation that I suddenly hit upon the idea for my book Holy Hullabaloos: A Road Trip to the Battlegrounds of the Church-State War. In fact, the whole time I was writing it, I took inspiration from Vowell's writing while at the same time trying not to write as though I was her, which of course I'm not even close to being. This is a hard thing about being a writer. We're moved to write in large part because of the models we draw inspiration from, but we still have to find our own way as we write in the shadow of these models. Anyway...
Vowell would probably not want to be the Archivist of the United States (who knows?), but I think she'd make a great one. She's the first to say that she's not a trained historian (I highly recommend reading this interview she did on Identity Theory to learn more about her and her views on history, writing history, learning history, etc.) but there's nothing in the relevant statute which requires that the President choose someone with a formal training in history (and if there were, it would be an unconstitutional infringement on the President's Article II appointment power, but that's another story). I think she'd make the Archives a much cooler place. I can just hear the teenagers all over our great country clamoring for their parents to take them to the National Archives for their summer vacation. "But mom, I don't want to go to Disney Land again; I want to go see the interactive Garfield assassination role playing exhibit at the National Archives! Pleeeeeease!"
Yesterday I posted about the legal issue in Pleasant Grove v. Summum, the one case concerning religion that the Supreme Court is considering this year. Today I want to say just a few things about the Summum religion itself. From looking at the religion's website, it would appear that the Summum believe in a lot of different things, from pyramids to nectars to meditation to achieving a certain level of what you might call divine knowledge. In her piece on the case in Slate, Dahlia Lithwick claims that her favorite aphorism of the Summum is that "everything vibrates." I agree that, as aphorisms go, that is a pretty cool aphorism, although I'm not sure I agree with Lithwick when she says that "Whoever wrote that had yet to meet Justice Clarence Thomas, who spends the morning, as he does every morning of oral argument,in perfect, motionless repose." When I was clerking at the DC Circuit in 1997, I happened upon an unattended office in the courthouse which contained a really big weird chair that had, among other things, a "Vibrate" on/off switch. I later learned that the office I had been scrounging around in had previously been Clarence Thomas's office during the short period that he worked on the Court of Appeals. Maybe Lithwick is wrong and the Summum are right. Maybe everything does vibrate.
I'm pretty sure that what I like best about the Summum is that they believe in mummification and will mummify you for somewhere around $67,000 (that's a minimum amount; your mummification may vary). I spend a lot of time thinking about my death. As I've written elsewhere, I even like to play a game called "Deathbed" with my wife, where I pretend to be on my deathbed and tell my wife how much I love her and how glad I was to get to spend most of my life with her (my wife hates this game). Since I'm an atheist and believe that after you die you become just one more lump of dirt in this meaningless universe, thinking about my death does not really make me happy. To spice things up, I often wonder about what I could do to make my death more interesting, at least to think about in the thirty (fifteen? three?) years that I have left to live. One thing I've thought about a lot is cryogenics, but the idea of waking up in the year 3010 as a frozen head usually doesn't do much for me. But what about becoming a mummy? How weird! So weird that it just about might make dying worthwhile.
Well, the Summum claim that, for a pretty huge fee which I nonetheless think I could cover through my life insurance (sorry, honey--maybe you should have played "Deathbed" with me more often), they will bathe me and carefully prepare me, immerse me in some sort of something or other with specialized fluid, cover me with lanolin, wrap me with gauze, seal me into an "impermeable protective cocoon," and finish me off with "fiberglass wrappings." I can then choose to be buried in an artistic bronze capsule which I guess is like a sarcophagus, or I can choose instead a full stainless steel burial casket, so long as the cemetery at which I'm buried is not located in some really cold place, or if it is located in a cold place, I'm buried deep enough to resist freezing. Because if I'm going to choose mummification over cryogenics, I don't want to screw it up and end up frozen anyway.
