Quantum Meruit

As much information as you deserve

Month: May, 2011

Back to the Future as Undeniably ’80s

From Kottke.org, “Back to the Future as period piece.” Postulating that Back to the Future is a movie about the 1980s, not the 1950s.

What I think is more interesting is the sharp, sharp contrast between 1955 and 1985 (“nobody has two TVs,” “a portable television studio,” etc.). But if Back to the Future were made today, Marty McFly would travel thirty years into the past — to 1981. Consider the contrast between the world of 1955 and the world of 1985. There isn’t such a contrast between the world of 1981 and the world of 2001. Except, perhaps, for the prevalence of computers and the ubiquity of the Internet, things are more or less the same. We recognize cars, TVs, radios, etc. Even computers weren’t unheard of in 1981.

I wonder what that says about American progress after World War II and American progress during the Reagan era.

Even so, when Marty told 1955 Doc Brown that Ronald Reagan was the president, Doc Brown was shocked. “Ronald Reagan? The actor?!” But I think the Doc Brown of 1981 would be just as surprised to find out that Arnold Schwarzenegger was the governor of California. (“Arnold Schwarzenegger? From Hercules in New York?!”)

Chamber of Commerce Shows True, Hypocritical Face

You’d think that the U.S. Chamber of Commerce — the lobbying organization that represents the interests of the nation’s largest corporations (and not the interests, by the way, of small businesses) — would be in favor of the Arizona law that imposed state sanctions on employers who knowingly hired illegal immigrants.

Curiously, you’d be wrong. In Chamber of Commerce v. Whiting, the U.S. Chamber of Commerce argued that federal law should preempt Arizona’s law. The court agreed, but that’s not the most interesting part.

A Chamber of Commerce True Believer might ask, “Why would the Chamber be on the side of less restriction on employing illegal immigrants? Doesn’t it want American jobs to be reserved for Americans?”

Turns out the answer is “absolutely not.” It’s to the advantage of large corporations for there to be lax laws regarding the employment of illegal immigrants. That way, large, multibillion-dollar corporations — which are, after all, the Chamber’s constituency — can get incredibly cheap immigrant labor, reducing their overhead and boosting their profits. Immigrants can be paid below minimum wage (because what are they going to do? Complain to a labor board?) and intimidated into not joining unions (which is actually explicitly illegal).

So, actually, the Chamber’s position on this issue makes sense.

Apple v. Lodsys: A View to a Sale

So they’ve got competing theories. Lodsys believes that Apple is sub-licensing Lodsys’ patents to app developers. That would be a no-no unless the license agreement permitted it; otherwise, the developers would need to pay Lodsys (which is what Lodsys insists). Apple believes that it is selling app developers technology which contains Lodsys patents (e.g., the iOS APIs, the App Store, etc.). Under the latter theory, the developers wouldn’t be responsible for paying Lodsys: it’s already been paid.

When you buy that iPod, you don’t have to pay to license the MP3 compression codecs from the Fraunhofer Institute. Apple has already paid them. While you’re ostensibly reimbursing Apple for the price of the license (which is built into the price of the iPod), the relationship between the licensor and the licensee ended after Apple paid for the license. So when you sell your iPod to someone else, that other person doesn’t need to pay the Fraunhofer Institute, either.

The licensor only gets paid once.

The world of software-as-a-service makes everything all the murkier: when I buy a copy of Windows 7, what am I buying? It seems like I’m buying a CD containing some code, with all the rights and privileges that go along with owning something. Microsoft sees it differently: they’re not selling anything; they’re licensing the technology to me. The difference is that, in the latter case, Microsoft can purport to impose all sorts of restrictions on how I can use the software (e.g., no reverse-engineering).

Back in Old Timey Times, when we dealt with “goods,” purchasing a good necessarily used it up. Buy a hammer from the store, and that’s one less hammer available for sale. An object’s inability to exist in more than one place at the same time was a licensing scheme imposed by quantum mechanics.

Not so with software: when I download Windows 7 from Microsoft, that doesn’t decrease the world’s supply of Windows 7, requiring Microsoft to manufacture another Windows 7 to take its place. And so, companies have developed novel ways of making information behave like stuff. In the process, this quandry has increased the world’s supply of yachts for lawyers.

Supreme Court Stands Up for Inmates

When it comes to crime and punishment, Justice Anthony Kennedy leans to the left. Justice Kennedy authored Lawrence v. Texas, which struck down a Texas law prohibiting homosexual sodomy. Justice Kennedy again comes through, casting the tie-breaking vote in favor of reasonable living conditions for prisoners in Brown v. Plata (re-captioned following Jerry Brown’s election to the governorship; lower-court rulings will refer to the case as Schwarzenegger v. Plata).

The facts are these: California’s state prison system is so overcrowded that living conditions are violating the Eighth Amendment’s prohibition on “cruel and unusual punishment.” At the time of the trial, Kennedy notes, California’s prisons are housing almost double their design capacity, and have been for 11 years. In two separate cases that were consolidated, a U.S. District Court ordered the State of California to release prisoners until the prison system held 137.5% of its design capacity, citing overcrowding as the primary cause of the unconstitutional conditions. The Ninth Circuit Court of Appeals affirmed.

Prison overcrowding thus leads to the impermissible “cruel and unusual” conditions: inadequate treatment for prisoners who need mental health care, prisoners living in squalor, and inadequate treatment for prisoners with physical health problems:

A prisoner with severe abdominal pain died after a 5-week delay in referral to a specialist; a prisoner with “constant and extreme” chest pain died after an 8-hour delay in evaluation by a doctor; and a prisoner died of testicular cancer after a “failure of MDs to work up for cancer in a young man with 17 months of testicular pain.”

What is at issue is not so much the issue of prison overcrowding as the novel approach the district court took in these cases: it is rare, indeed, that a court orders the executive to do something as drastic as releasing prisoners. But the district court concluded that building more prisons was too time-consuming; the constitutional violations were happening now, had been happening for years, and persisted in spite of different solutions to alleviate the problem.

In 1995, the federal courts dealt with prison overcrowding in California in Coleman v. Brown, that time due to “the systematic failure to deliver necessary care to mentally ill inmates.” As it turns out, prisoners have a right to “retain the essence of human dignity inherent in all persons,” which includes medical care. I guess if we’re going to imprison 1% of the adult population of the United States, we’d better be prepared to care for them.

The majority’s opinion is more of this: facts about the poor conditions of California prisons that are, perhaps, shocking to people who don’t know about the problem already. (The opinion even includes a rare Appendix, which contains photographs of some of the living conditions.)

The Dissent

Justice Scalia is not pleased. The Prison Litigation Reform Act (PLRA), which grants courts the authority to do things like this, insists that the relief granted must be “narrowly drawn” and “shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs.” I guess that’s where Scalia disagrees with the majority: the remedy was way too broad. Then again, Scalia notes explicitly that he disagrees with “evolving standards of decency” as the benchmark for the Eighth Amendment, as articulated in Roper v. Simmons. (By the way, Justice Kennedy also wrote that opinion, in which he declared that the parameters of “cruel and unusual punishment” are not, as Scalia would have it, fixed in time.)

But what is most appalling about Scalia’s opinion is his use of bogeymen to imply that the effect of this ruling will be to put violent felons back on the street:

Most of [the released prisoners] will not be prisoners with medical conditions or severe mental illness; and many will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym.

[. . .]

I suspect, however, that this passage [about modifying the injunction] is a warning shot across the bow, telling the District Court that it had better modify the injunction if the State requests what we invite it to request. Such a warning, if successful, would achieve the benefit of a marginal reduction in the inevitable murders, robberies, and rapes to be committed by the released inmates. [Emphasis added]

[. . .]

So perhaps the coda is nothing more than a ceremonial washing of the hands — making it clear for all to see, that if the terrible things sure to happen as a consequence of this outrageous order do happen, they will be none of this Court’s responsibility. [Emphasis added.]

Justice Alito, in a separate dissent, added:

The three-judge court would have us believe that the early release of 46,000 inmates will not imperil — and will actually improve — public safety. Common sense and experience counsel greater caution. [Internal citations omitted.]

Got that? Big, scary prisoners are coming to kill and rape you. And it’s all Justice Kennedy’s fault. Because it only makes sense that, if the State is permitted to release any prisoners, it would obviously release only the most violent offenders first. So either the State is monstrously stupid or everybody in prison is there for equally heinous crimes. Justice Scalia certainly can make these kinds of bold and ignorant inferences from the comfort of his home in Georgetown. It probably goes without saying that he has never met a prisoner, spoken to a prisoner, or visited a prison, relying instead on the caricatures perpetuated by the punish-them-as-much-as-you-can lobby.

Scalia also, predictably, disagrees with what he calls “factfinding-as-policymaking,” insisting that injunctions like the one upheld in this case “force judges to engage in a form of factfinding-as-policymaking that is outside the traditional judicial role.” He is blissfully unaware that negative policymaking, of the type extolled in Connick v. Thompson, is also a form of policymaking. Scalia is making his bed just as every other liberal justice is; the only difference is that Scalia refuses to acknowledge what he’s doing, insisting that he’s engaging in a truer, “originalist” interpretation of the law. Outside the Federalist Society, that’s called being intellectually dishonest.

Case-in-point: Scalia disagrees with the trial court’s findings of fact. But as he himself acknowledges, it’s extremely difficult to override the trial court’s findings. Trial courts’ facts are given hearty deference and are overruled only if there is “plain error.” So Scalia decides to rebrand those findings of fact as opinions disguised as facts. This paragraph is a doozy:

I am not saying that the District Judges rendered their factual findings in bad faith. I am saying that it is impossible for judges to make “factual findings” without inserting their own policy judgments, when the factual findings are policy judgments. What occurred here is no more judicial factfinding in the ordinary sense than would be the factual findings that deficit spending will not lower the unemployment rate, or that the continued occupation of Iraq will decrease the risk of terrorism. Yet, because they have been branded “factual findings” entitled to deferential review, the policy preferences of three District Judges now govern the operation of California’s penal system.

Justice Scalia is shocked — shocked! — by the notion that judges exercise opinions even when they are trying to find facts. Whatever happened to objectivity? Is it possible that the selective inclusion or omission of facts constitutes an opinion? This is news to everyone but Scalia, apparently. As my contracts professor always said, judges exercise judgment. That’s why their written responses are called opinions.

Scalia might be right that judges should not be in a position to exercise broad institutional reforms, but that’s nevertheless what PLRA gives them. It’s also important to note that the trial court’s decision to release prisoners comes after fifteen years of litigation. California’s elected and appointed officials, who are the proper parties to determine what to do, have apparently tried everything else and failed. Prison overcrowding is still a problem.

Willie Brown on Schwarzenegger

To call Willie Brown’s comments about Arnold Schwarzenegger’s extra-marital affair “apologetic” would actually be an understatement. The former Mayor of the City and County of San Francisco writes in his Chronicle column:

We all do things we wouldn’t want anyone else to know about. Even for politicians, sometimes these things have nothing to do with whether we can do our jobs.

Schwarzenegger’s conduct toward his former housekeeper and his child had no bearing on whether he could solve California’s budget problems, make a quality appointment to the Supreme Court or carry out any of the thousand other tasks a governor must handle.

[. . .]

Arnold is a human being. And as a human being, he is capable of a wide range of behavior — some of it attractive, some of it not.

Just like you and me.

Let’s talk comparisons, here. There’s extramarital affairs, and then there’e extramarital affairs. The guy had a child with his housekeeper that he kept secret for 13 years! I can even understand extramarital affairs, but children? Really? And it’s not so much the substance of what Schwarzenegger did — the affair and the love-child — it’s the fact that he hid it for 13 years, which must have been no small accomplishment that took no small amount of deception. I expect that what really floored Maria was not “I had an affair with the housekeeper 14 years ago, that’s long since over” as much as it was “I had an affair with the housekeeper 14 years ago that’s long since over, and would you like to meet our secret love-child?”

Someone has either been lying to this kid about who his (or her?) father is, or the kid can really keep a secret. Does anyone care about the child in all of this talk? Because there might be some significant psychiatry bills. Schwarzenegger is fairly deserving of scorn, especially because he thrust himself into the public sphere and set himself up as a role-model. The latter fact he was unquestionably aware of (unlike Charlie Sheen, who is held to, let’s say, a lesser standard).

Sure, Brown takes the familar “let he who is without sin cast the first stone” tack, which is true, to some degree. But that’s an important word: degree. If Brown can’t see the difference between an affair that’s been long-over and an affair that resulted in a kid who’s now 13, then I would question the judgment he might bring to a job that involves “any of the thousand other tasks that a governor must handle.”

The Trials and Tribulations of an Apple Misunderstander

Four years on, Rupert Jones, writing in The Guardian, is still using Mac OS X 10.4 (Tiger), which was released in the summer of 2005. He’s upset that Apple requires at least Mac OS X 10.5 in order to use things like iTunes 10.

I don’t know if Jones playing ignorant or is actually ignorant of many of the things he says in his article. He opens by saying that his MacBook is only four years old, and later complains “that this is all about ‘forcing’ us to buy new computers.” There’s a couple problems both with the words in this sentence and the sentiment behind this sentence.

I. It’s not just Apple that uses new technologies

How many pieces of software have you installed that require Mac OS X 10.5? That third-party software wasn’t written by Apple; it was written by someone else. Those developers don’t make more money if you buy a new computer or a new operating system, so what gives?

Turns out that successive releases of Mac OS X contain — wait for it — lots more features! Many of these features are things that the average (i.e., non-software-developer) consumer wouldn’t readily notice. I expect Jones didn’t realize that the Package Maker for 10.5 is improved over 10.4, or that 10.5 contained a new API called Core Animation that makes animations much easier than ever before to render, or that 10.6 contains two technologies — GrandCentral and OpenCL — that take advantage of modern processors and video cards that didn’t exist when Tiger was released in 2005.

These technologies make life easier for developers while boosting the quality of their applications. If developers had to write their own APIs for distributing processing takes among multiple processor cores, they probably wouldn’t do it do begin with. Apple realized that. And that’s why Apple wrote GrandCentral.

II. Apple’s philosophy is not Microsoft’s philosophy

Jones confuses the philosophies of Microsoft and Apple, apparently concluding that Apple’s is the exception, while Microsoft’s is the rule. The Microsoft rule, which you’ll find emblazoned on their family coat of arms, is this: Compatibility in primis. Microsoft keeps technology around for decades because developers have continued to port and re-port (and port again) the same software from 1979 to today. It’s especially irksome in the business environment: someone wrote an Excel plug-in back in 1993, and because it’s worked more or less the same since then, we have to put a complete halt to moving forward with new features and new technologies because of that one Excel plug-in. Or, we have to build backwards-compatibility into the operating system or program, even if that would make the program or operating system unstable (or cause security problems).

I think that about sums up Microsoft’s philosophy. This passage from Jones’ article is wonderful because the passage is blissfully unaware of what it’s really saying: “What adds insult to injury is that if I had a 10-year-old Windows PC, I wouldn’t be experiencing these problems.” This, of course, requires two questions: (1) what problems are you experiencing because you have a 10-year-old Windows PC? and (2) what things are you missing out on because your computer is 10 years old? A computer built in 2001 most likely cannot, for example, stream video content from the Internet. And if it can, it doesn’t do it very well. That’s because the processors just aren’t fast enough to decode the video. And why wouldn’t you use this computer from 2001 for your iTunes installation? Oh, right: it probably has a hard drive capacity of 10 GB, meaning that, after you install the operating system and other necessary applications, you’ve got about 7 or 8 GB left, at least two of which you should keep free for the swap file. I hope you have an iPod Nano.

Apple’s philosophy is different. It makes them money, but it also results in an improved customer experience (much like color TV was better than black-and-white, and I’m sure Magnavox made a bunch of money from it, but would you go back to black-and-white?). When was the last time you saw a floppy drive on a computer? Guess who’s responsible for that: it was Apple. The original iMac was the object of much scandal, for it lacked what, in 1998, was still essential for a computer: a floppy disk drive. Believe it or not, there are some children alive today who have never used a floppy disk, the 3 1/2” square of magnetic film contained in a plastic shell that held 1.44 megabytes of information. Some of you are reading this on laptops that don’t even have an optical drive. The world is moving on. (“I was told Apple’s operating system has simply had more revisions over the past four years than Windows,” Jones says dismissively, implying in the next sentence that such a statement may not be true. It’s completely true. In 2001, Microsoft released Windows XP and Apple released Mac OS X 10.0. Since then, Windows has gone through two more upgrades — Windows Vista and Windows 7 — while Apple is slated to release the seventh iteration of the Mac OS X operating system this summer. I gladly paid for Windows 7 and not for Vista, since the latter was pretty much a software abomination.)

III. Newer stuff gives you a better experience than old stuff

Whatever else Jobs may be (including “megalomaniacal,” a “control freak” and “belligerent”), prescience is one of his positive traits. When it was introduced in 1998, the iMac was state-of-the-art: no floppy drive, but something new and wacky called USB. No more restarting after connecting a peripheral like PS/2. No more dialing that SCSI switch to find an unused hardware address. No more proprietary connectors that necessitated the purchase of a new card to accommodate it. True “plug and play” in the sense that, once you plugged it in, the peripheral worked. We take that for granted now, but for how much longer would those technologies have existed if Jobs hadn’t made the unilateral decision to cut them out of the iMac? (I’ll give you a hint: HPs today — today — still have PS/2 ports, and some of them even ship with PS/2 keyboards and mice by default. That’s appalling.)

The iMac also had something really weird: a port next to the regular telephone port that was a little wider and had blinking lights on either side. Whatever would someone use that for? Back in 1998, when most of us still dialed up to AOL busy signals, Apple was building Ethernet ports into its computers right out of the factory. If you watch Hulu, or use the modern Internet, you’re probably using a DSL or cable connection, and that connection uses an Ethernet port. Ethernet made so-called Web 2.0 possible. It made YouTube possible (which, in turn, made Justin Beiber possible). The experience websites deliver today couldn’t be matched by dial-up for the simple reason that dial-up was just too slow. It could deliver text and graphics, but not “dynamic” content like Flash animations or videos that consist of several megabytes’ worth of data.

“But Flash videos aren’t that big!” My 56.6 kilobit-per-second modem took, at best, seven minutes to download one megabyte of data. In kilobytes per second, where “bytes” are a big B, we were talking 7 KB per second, a theoretical speed of 2.5 minutes to download one megabyte. Today, my connection speed is 22.04 megabits per second, or 2.75 MB per second. In the same 2.5 minutes it took to download one megabyte over dialup in 2001, I will have downloaded 412.5 megabytes today, almost an entire CD’s worth of information. (As a practical matter, my actual connection speed was hardly ever 7 KBps in 2001, just like my actual connection speed is hardly 2.75 MBps. But you see what I mean: technology has moved on in ten years.)

In 2006, Jobs announced that Apple was transitioning the entire product line from PowerPC processors, which Apple had used for decades, to Intel processors. Jobs’ reason? PowerPC just couldn’t deliver the processing performance, low power usage, and form factor Apple wanted. A scheme to make money? If you think so, go find a PowerPC G4 and try to do anything substantive on it. The super-fun, awesome content we take for granted today is made possible, in part, by advancing technology. Remember 1995, when games using full-motion video were a hot new commodity? I get better resolution now on my iPhone.

Apple does not “stand behind all of their products, even if they deem them ‘obsolete,’” to use the words of one of the angry forum-posters Jones quotes, because they’ve never believed in the “support the lowest-common-denominator” approach. That’s what Microsoft does. That’s not what Apple does.

IV. In conclusion

Jones is really making a big deal out of something very small. As he himself observes, an upgrade to Mac OS X 10.5 would cost £87 ($141), but it sounds like he received bad information: for $29 (£18), he could upgrade to Snow Leopard, which his four-year-old MacBook supports. This is not a case of buying an entirely new computer; it’s a case of doing some research and then spending $29 to upgrade your operating system, which will take an afternoon in addition to the money (and if Jones doesn’t have an external hard drive to which he can back up his stuff, he should get one as a matter of principle).

As one commenter observes, “This is not a new or noteworthy story. Furthermore, if I had kept up with OS/X upgrades as they were released rather than waiting well over a year, it would have cost me a lot less. So really, I brought the problem onto myself. The fix is easy  — keep up with the OS/X upgrades. Either that, or you can rage on and on and continue to write articles that are outdated before they are even published.”

Ranked-Choice Voting Is Constitutional

The legislative body of the City and County of San Francisco is known as the Board of Supervisors, and its members are called Supervisors. Ron Dudum, along with other failed candidates for Supervisor, filed suit in federal court alleging that San Francisco’s instant runoff voting (IRV) system was unconstitutional. The district court granted summary judgment for the City, so Dudum appealed. At oral arguments, the Ninth Circuit Court seemed — what’s a synonym for really skeptical — about Dudum’s arguments.

IRV is unconstitutional for three reasons, he said: (1) after voters’ choices are “exhausted,” but elimination rounds continue, the voters’ non-votes are not being counted; (2) successive rounds of elimination in IRV are akin to successive elections, and not counting votes in successive elections is disenfranchising; and (3) IRV dilutes votes (under the premise that a voter who votes for a winning candidate through all three rounds has voted once, but a voter who votes for three losing candidates through all three rounds has voted three times).

Judge Marsha Berzon opened the three-judge panel’s opinion in Dudum v. Arntz with a quotation from Charles Dodgson (alias Lewis Carroll), who, in addition to writing Alice in Wonderland, taught mathematics at Christ Church College, Oxford. Dodgson attempted to invent more equitable systems of voting but never could quite come up with them. One of the biggest problems with the simplest type of voting, called “simple plurality voting,” is that a candidate who was disliked by the majority could theoretically win the election because he garnered more votes than the next person.

The opinion deftly dismantles Dudum’s characterizations, most of which are based on mischaracterizations of the way the voting system works. For one thing, IRV does not involve individual elections; Berzon classifies IRV as using an algorithm: “the sequence of calculations mandated by restricted IRV is used to arrive at a single output — one winning candidate. The series of calculations required by the algorithm to produce the winning candidate are simply steps of a single tabulation, not separate rounds of voting.”

While Dudum is publicly disappointed at his loss, probably because he has sour grapes over losing his election, he shouldn’t be; the case was a long shot from the beginning. Government entities are free to design elections to their liking, within certain parameters (you know, pesky things like the Fourteenth Amendment). In this case, “the City’s ‘important regulatory interests’ are more than substantial enough to justify the minimal at best burdens imposed by the City’s chosen system.”

Judicial Vacancies: An Unspoken Crisis

With all the problems we have to deal with — terrorism, the economy, and the mystifying success of Dancing with the Stars — it seems like there’s little room left for more worries. Thankfully, that’s not true: we can always worry some more.

Judicial vacancies are becoming a problem. All federal judges are appointed by the president “with the Advice and Consent of the Senate.” Once appointed to the bench, federal judges serve for life, or until retirement or impeachment. Most of us are familiar with the nine justices who sit on the U.S. Supreme Court. As the highest court in the land, and the most powerful judges in the country, the members of the Supreme Court are probably deserving of being the public face of the federal judiciary.

Beneath them, though, is a federal court system that deals with important issues. It consists of thirteen circuits that hear cases on appeal, and 94 district courts from which cases originate. (And add to this specialty courts like the Court of International Trade and the various bankruptcy courts and tax courts.) That’s a lot of judges. In fact, there are 874 federal judgeships, but 86 of those positions are outright vacant and 44 have nominees “pending” (meaning, a person has been nominated to the post, but has not yet been confirmed by the Senate).

Why does it matter that 15% of the judgeships in the federal court system have no one in them? Because it affects the quality of the judiciary. In the Ninth Circuit, for example — the nation’s single largest circuit (encompassing Washington, Oregon, California, Arizona, Idaho, Alaska, Hawaii, Nevada, Montana, Guam, and the Northern Mariana Islands) — there are 14 vacant positions. The longer the dockets get, but the fewer judges there are to hear the cases, the more likely it is that cases will not be heard or will be heard only after a lengthy delay.

It’s also hard on the existing judges. Because of the problems in the Ninth Circuit, judges taking “senior status” (meaning they should be semi-retired) are still working full time. 16 of the 19 senior judges in the Ninth Circuit actively deal with 33% of the Circuit’s caseload.

And that brings us to Goodwin Liu. Liu is a professor of law at Berkeley Law School (formerly Boalt Hall School of Law). At only 40 years old, Liu is a judicial superstar who could spend the next 40 years being an excellent judge, both on the Ninth Circuit and probably on the U.S. Supreme Court, given his pedigree. (Stanford, Yale Law School, Rhodes scholar, et cetera). In addition to attending all the “right” institutions, Liu happens to be extremely bright.

And that’s exactly why Republicans are afraid of him. You see, Liu is also very progressive. He is a board member of the American Constitution Society, a group founded in 2001 to combat the “originalist” thinking of The Federalist Society. Liu is buddies with Stanford law professor Pamela Karlan, who would be a federal judge if it weren’t for her unabashed and outspoken liberal opinions. Liu even made the capital mistake of putting his liberal opinions in a book, Keeping Faith with the Constitution, in which he — along with Karlan and Duke University School of Law professor Christopher H. Schroeder — talk about how the Constitution’s constant re-interpretation is really good for America.

He might as well be a Nazi.

You see, when a conservative judge is outspoken about his conservative opinions, that’s great. The more, the better. Let’s all take a trip in the DeLorean back to 1789, when times were simpler and people owned other people like so much cattle. But a liberal judge? A liberal judge had better turn the milquetoast dial to 11. Don’t you dare suggest that the Constitution is a living document, or you’ll be branded with the A-word, the modern judicial equivalent of “socialist” (with the same muddling of meaning that George Orwell criticized in “Politics and the English Language”). Liu even apologized for saying this:

Judge Alito’s record envisions an America where police may shoot and kill an unarmed boy to stop him from running away with a stolen purse [and] where a black man may be sentenced to death by an all-white jury for killing a white man.

Liberal judicial nominees are actually required to apologize for saying things that are perfectly true. Meanwhile, John Roberts was lauded by conservatives for his blitheringly stupid analogy between judges and umpires. (Of course, in Roberts’ defense, he is not actually that stupid. He is actually very smart. He was merely pandering. You understand.)

Liu was originally nominated in 2010 — that’s right, a year ago — and after his nomination expired, he was re-nominated. Today, he was once again deprived of an up-or-down vote by Republicans who were terrified that a liberal voice might be in the federal court system for the next forty years.

Thanks to a filibuster by Republicans in the Senate, Liu did not even get his vote. The filibuster, as you’ve probably heard, is an ingenious way of requiring a 2/3 majority for business that should require only a simple majority. Modern filibusters are nothing like what Jimmy Stewart did in Mr. Smith Goes to Washington. Today, all a senator need do is file a motion for filibuster, and the business is considered filibustered. 2/3 of the senators are required to pass a motion for cloture, which ends debate and triggers a vote.

So how radical is Liu? Is he suggesting that we should re-interpret the Constitution so we can marry our pets? Does he want mandatory abortions? Well, he’s unradical enough that even Ken Starr (yes, that Ken Starr) has endorsed him as imminently qualified.

And so it looks like another vacancy goes unfilled as Republicans block qualified nominees, hoping to stall just long enough until they get their shot at the presidency, during which time they’ll hopefully be able to get some bright, young Robert Borks into the judiciary.

Once a Tax Haven, Now on Life Support

The next time someone tells you that the United States should emulate Ireland’s low corporate tax rate to prevent U.S. businesses from leaving the country, you might want to mention the following:

  1. Ireland is now effectively insolvent;
  2. Corporations don’t go to Ireland for its low tax rate. They go there because Irish tax laws make it easier to shuttle profits to Bermuda to avoid paying taxes — both Irish and American.

This article from The New Republic adequately sums up conservatives’ misguided thoughts about Ireland. They blame lots of things: “the progressive tax structure, public sector overcompensation, and poor quality of the state,” and “government spending.”

Of all the things that get blamed, Ireland’s status as a tax haven is not mentioned. Not enough in taxes? No problem; just borrow! Imagine Indiana Jones is in a room lined with spikes. Now imagine the walls are being to close in. It’s kind of like that.

Free market evangelists at the Cato Institute — the people who want to slash corporate taxes even lower — would do well to take a long, hard look at Ireland. Like the Ancient Mariner, it should serve as a warning:

The Wedding-Guest sat on a stone:
He cannot chuse but hear;
And thus spake on that ancient man,
The bright-eyed Mariner.

Lowering corporate taxes — and decreasing the effective tax rates on the wealthy even more — is a recipe for the type of disaster that Ireland is facing now.

Connick v. Thompson, in Poetry Form

Got Brady problems?
They’re much harder to prove now.
Sorry, defendants.