Stevens to Retire; Appoint a Woman!

So, there it is… Justice Stevens is retiring at the end of this term, the day after the Supreme Court begins its summer recess.

First, some geekery. His retirement date means that he’ll just miss becoming the second-longest serving justice in Supreme Court history, as I speculated last fall, since the Court will most likely recess on June 28. Even if the Court recesses on July 1 — which is not likely and might happen only if there are too many decisions to announce at the end of the term — Stevens would retire on July 2, and thus tie Stephen Field as the second-longest serving justice. Right now Stevens ranks fourth; 41 days from now he’ll surpass the legendary John Marshall to become third.

I’m sure he doesn’t care about any of that stuff, though. Only geeks like me do.

Now the speculation begins on a successor. And I really, really want Obama to nominate another woman.

It’s ridiculous that in the year 2010, only two of the nine justices are women. Bush tried to nominate a woman to replace O’Connor — Harriet Miers — but when her nomination failed, he nominated Sam Alito, leaving Ruth Bader Ginsburg as the only woman on the Court. Obama did the right thing in choosing a woman to replace Souter, and Stevens’s replacement should be a woman as well.

Demographics should be secondary to a Supreme Court nomination, but when a president is looking for someone of a particular ideology or judicial temperament, there are usually several people to choose from, so he has the leeway to choose another woman. Fortunately, it looks like the name with the most buzz for the last couple of months has been Solicitor General Elena Kagan. Several weeks ago, SCOTUSblog profiled her, as well as a few other contenders, and considered her the front runner.

But this is interesting — if she were nominated and confirmed, the Supreme Court would have six Catholics and three Jews. Would fundamentalist Protestants be annoyed at having no representation? After all, to quote that link, “it’s not like having devout Catholics on the bench is a substitute for having a couple of Protestants, any more than having a Clarence Thomas on the bench is the same as having an African-American.”

The Supreme Court is problematic today — a small group of nine people can enact major change in this country, for better or for worse. Perhaps a larger court would be better, and not just because it would dilute the identity politics somewhat. (The Constitution doesn’t say there have to be nine justices — all it takes is an act of Congress, although the last time a president tried to make that happen, it didn’t work out.)

Of course, even in a larger body — the current United States Senate — only 17 out of 100 members are women. But given the infrequency with which the Supreme Court membership turns over, change comes even more slowly to that body.

Even three out of nine justices would be too few women on the Court. But it would help redress a great annoyance.

SCOTUS: No Cameras in Prop 8 Trial

“Irreparable harm.”

Nobody expected the U.S. Supreme Court to get involved in the Prop 8 case so soon, but a couple of hours ago, the Court issued an order preventing the broadcast of the Prop 8 trial to five federal courthouses across the country after being asked to do so a few days ago by the pro-Prop 8 lawyers. The order doesn’t address whether the trial can be broadcast on the internet, because that issue is still being worked out at the lower level (“the technical staff encountered some unexpected difficulties preparing a satisfactory video suitable for on-line posting”).

This whole case has so many people on edge — me included — that anything the Supreme Court says about it, even on a supposedly tangential issue like cameras in the courtroom, is being given talmudic scrutiny.

What worries me is the makeup of the justices in this decision. It just so happens that the five justices who voted to bar cameras in this case — and therefore agreed with the pro-Prop 8 lawyers — are Roberts, Scalia, Thomas, Alito, and Kennedy, and that the four justices who dissented are Stevens, Ginsburg, Breyer, and Sotomayor. This is exactly the lineup a decision on the merits could have, with the possible exception of Kennedy.

The thing is, I tend to agree more with the majority here, that the lower court probably didn’t follow proper procedure in allowing cameras in this case. But I could be persuaded that the minority is right as well. This really isn’t an emotionally charged issue — except for the fact that it happens to involve a trial about Prop 8.

And the fact that the trial is about Prop 8 is relevant. The majority opinion, which is unsigned, isn’t just about proper procedure; it also endorses the claims raised by the pro-Prop 8 lawyers that some pro-Prop 8 people have been harrassed, even physically, and says that there could be “irreparable harm” in letting cameras in.

Never mind the fact that we’re not even talking about broadcasting the trial on the internet — we’re just talking about broadcasting the trial in five federal courthouses.

So, is this an attempt to paint pro-gay-rights people as crazy harrassers? What about the people who get gay bashed? What about kids who get driven to suicide because their classmates taunt them for being gay or even just for being effeminate? Granted, the anti-Prop-8 people apparently didn’t bring that up in their arguments. But in citing “irreparable harm,” the majority opinion seems a little too sympathetic to the anti-gay side here. And again, that worries me.

So “irreparable harm” rears its ugly head again. It’s a valid legal concept, and there’s nothing inherently wrong with it. But I can’t help but remember that it came up in Bush v. Gore, too. There, Justice Scalia said — in an example of great chutzpah: “The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner Bush, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election.”

I really hope this procedural order isn’t a portent of how the case turns out.

New Yorker on Marriage Equality Lawsuit

The New Yorker has a terrific article by Margaret Talbot on the marriage equality case, Perry v. Schwarzenegger, that began yesterday in San Francisco. It has pretty much everything you need to know about the case from soup to nuts.

I have to admit that while I was very leery of this lawsuit and thought it was a terrible idea, the more I read and think about it the more excited I am. It feels good to be going on the offensive. Ted Olson may be a Dark Lord, but in this case he’s our Dark Lord. By which I mean that he’s a top-notch lawyer, and it’s great that he’s finally using his powers for good. If there’s going to be a marriage equality case before the Supreme Court, we couldn’t have stronger legal representation.

And yes, it’s possible that the case will wind up in the Supreme Court and that we will lose. On our side: Ginsburg, Breyer, hopefully Sotomayor, and hopefully whoever replaces Stevens after he likely retires this summer. On the other side: Scalia, Thomas, Roberts, Alito. In the middle: Anthony Kennedy, who wrote Romer and Lawrence and therefore would seem to be on our side, but you never know, especially since it would be a really big deal for the Court to overturn the laws of 39 states. Some say that if we lose, it will set gay rights back for years. On the other hand, what do we really have to lose? And if not now, when? Roberts, Alito and Thomas are all young, and Scalia could be on the Court for another 10-15 years. The makeup of the Court isn’t going to change in our favor anytime soon.

More importantly, this case is a great teaching moment. From the list of witnesses that Ted Olson and David Boies have put together, it looks like the case will touch on everything from marriage to discrimination to child-rearing to children’s education to so-called “conversion therapy.” Despite the ballot initiatives and the state legislatures that keep going against us, the more we discuss marriage equality, the more the public gets on our side.

On the other hand, if the Supreme Court rules in our favor, it could give fuel to the movement to pass the Federal Marriage Amendment. But you know what? I can’t see 67 U.S. senators voting to enshrine discrimination in the Constitution. And I’m tired of worrying about what our opponents are going to do if we fight for our rights. We’ve been timid for too long. What happens, happens.

Interestingly, there’s another federal marriage equality case going on right now, Gill v. Office of Personnel Management, which seeks not to overturn state laws against marriage equality but rather to overturn part of the Defense of Marriage Act. Gill seeks to force the federal government to recognize same-sex marriages that were validly performed in a state that recognizes them. Normally, if, say, Massachusetts allows a marriage to take place, the federal government doesn’t second-guess Massachusetts and refuse to recognize that marriage. Why should it be any different in the case of same-sex couples? This is what the Gill plaintiffs argue, and in a sense it’s a more palatable case, because it seeks not to overturn state laws but rather to strengthen them. It’s not clear which case will get to the Supreme Court first, Gill or Perry.

In the meantime — still waiting for Obama to stop discharging U.S. soldiers for being gay, and for Congress to repeal Don’t Ask, Don’t Tell.

Damn, I’m tired of waiting.

Justice Stevens

So, it looks like Justice Stevens might be retiring next spring, or so say the Supreme Court kremlinologists. Justices usually hire clerks a year in advance, and Stevens has hired just one for the 2010-11 term instead of the usual four. The man’s going to be 90 years old in April, so it wouldn’t necessarily be surprising. But I thought he was going to stick around until death, and he apparently still plays tennis regularly. Anyway, retirement announcements don’t usually come until the spring, so we won’t know for a while.

If Stevens announces retirement effective at the beginning of the summer recess, like Souter did, that would peg his retirement at about 300 days from now, and he might just miss surpassing Justice Field as the second-longest-serving justice. If he announces a retirement upon the swearing-in of his successor, like O’Connor did, then that would be a couple of months longer (or even more, if we get a Roberts–>Miers–>Alito situation, like we did four years ago), and in that case he would definitely surpass Field, leaving him second only to William O. Douglas in longevity — who happens to be the man Stevens replaced on the bench in 1975.

Think about that. If Stevens retires next spring, then only two justices will have held that particular Supreme Court seat since 1939. And who held it before Douglas? Louis Brandeis! That’s how long it’s been.

Judicial Liberalism Not Happening

If you believe in judicial liberalism — which I sometimes do and, to be honest, sometimes don’t — the current direction of the Court is a little depressing. Tom Goldstein, Supreme Court analyst extraordinaire, points out that the conservatives on the Court are free to move at a measured pace in overturning liberal precedents, at least for a while:

For the moment, there is no reason to rush. Time permits a jurisprudence of not just originalism, or textualism, but actuarialism. The sand running through this hourglass will not expire for eight years.

Later in his term, President Obama will likely replace Justice Stevens with someone else on the left. If he is reelected in 2012, he will replace Justice Ginsburg with someone on the left. Nothing changes.

It isn’t until the election of 2016 at the earliest that there is a real prospect for a significant shift to the left in the Court’s ideology. Actuarially, that election is likely to decide which President appoints the successors to Justices Scalia and Kennedy (both on the right, and both 73 now) and Justice Breyer (on the left, and 70 now). Absent an unfortunate turn of health, between now and the summer of 2017 there is no realistic prospect that the Court will turn back to the left. Over the course of that eight years, it is possible to take enough measured steps to the right to walk a marathon. Again, no need to rush.

Unless something happens to Scalia, Thomas, Roberts, Alito, or Kennedy in the next few years, the Court is on a slow rightward trajectory.

On the issue dearest to my heart — gay rights — it probably doesn’t mean much. Kennedy has been pretty pro-gay (Romer, Lawrence), but I don’t expect the Court to take up same-sex marriage for a while. It didn’t overturn the nation’s sodomy laws until only 13 states were left with such laws; the Court is too cautious to constitutionalize same-sex marriage rights at this point, when only six states allow such marriage.

What else could the Court tackle? Don’t Ask/Don’t Tell will be history in the next few years — I’m pretty sure Obama will get around to it after health care and energy are taken care of. DOMA (full faith and credit clause) is a possibility — which would be a sidelong way to rule on same-sex marriage. But I don’t think the Court will touch that right now. Again, the issue is just too volatile, and the Court generally knows when to stay out of things. (It has learned from abortion; would Roe v. Wade come out the same way today? Who knows; the opinion would at least be less intrusive if it were written today.)

Of course, I could be wrong. Issues have a way of showing up on the Court’s docket unexpectedly, especially since it only takes four Justices to vote to hear a case.

But for now, things seem to be in stasis, at least where gay rights are concerned. As for everything else — drifting right.

U.S. Senate Vacancies

Vacant U.S. Senate seats are in the news lately. Obama, Biden, and Clinton are all leaving office; Illinois legislators are talking about passing a law to prevent Gov. Blagojevich from appointing Obama’s replacement; and if Ted Stevens had been re-elected, he might have been expelled, leaving a vacancy to be filled.

It all got me wondering why there’s no uniform method for filling a vacancy. Each state has its own law for replacing a senator; most states require the governor to appoint a replacement, but some states limit that power, requiring the replacement to be from the same party as the vacater and/or requiring the governor to choose from a short list. And some states don’t let the governor make the appointment at all, requiring a special election instead. This leads to lots of confusion; for example, many people thought that Sarah Palin could have appointed herself to replace Ted Stevens if he was expelled, but it turns out that Alaska requires a special election to fill a vacant seat.

So where did this craziness come from, especially given that the U.S. Supreme Court ruled in 1995 that states aren’t allowed to set term limits for their U.S. senators?

Well, I did some googling and it turns out that it comes from the Seventeenth Amendment. This is commonly known as the amendment that required U.S. senators to be elected by the people instead of being chosen by state legislatures. But the amendment’s second paragraph states:

When vacancies happen in the representation of any State in the Senate, the executive authority of each State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

So, although the people must eventually vote in special elections to fill Senate vacancies, state legislatures can empower the governor to fill those vacancies temporarily. Hence, state-by-state differences in how the process unfolds.

This has been another episode of “Answers to Questions You Didn’t Ask.”

(P.S. Here are all the state statutes and relevant federal statutes and constitutional clauses. Found here.)


From an article about the upcoming “Sex and the City” movie:

While the film revolves around Carrie and Big’s wedding, Mr. King was insistent that no mother or father of the bride be shown. “My idea always was that these women were purely creations of New York,” he said. “The prototype of the series is that these are four grown-ups who make a family of one another.”

Also driving Mr. King’s decision was his fear of falling into cliché. “Who was going to play Carrie’s mother? Connie Stevens? It’s such a traditional sitcom limb. It’s the Thanksgiving episode, and there are Wilford Brimley and Elaine Stritch. I never wanted to do anything like that.”

I would pay to see Wilford Brimley and Elaine Stritch as anyone’s parents in a sitcom episode.

Tonight’s Debate

I watched the debate tonight. And I can’t believe I’m saying this, but: I think Clinton definitely had the better evening. Obama seemed off his game. The questions were appalling — Charles Gibson and George Stephanopolous both seemed to be channeling Tim Russert, and they brought up every possible scandal that has been raised against Obama. Including the flag pin thing! Are you kidding me?

Nothing about Mark Penn or his Colombia trade deal. But questions about Wright, and some Weatherman guy.

But Obama didn’t respond well to the questions at all. He sounded halting and hesitant and defensive when he spoke.

Clinton, meanwhile, seemed polished and prepared and seemed to know her stuff. If this were the only debate I’d seen, and I were voting in the Pennsylvania primary, I might vote for her.

Not that she has a chance of getting the nomination anymore, but she might very well be a better candidate against McCain than Obama would be. She’d certainly be better than either John Kerry or Al Gore at going on the offensive and standing up for herself.

Obama sometimes seems to be morphing into Adlai Stevenson before our eyes. We might get killed again this fall with him as the nominee.

Obama works under the assumption that people are smart. Case in point: his wonderful speech on race last month.

Clinton, on the other hand, works under the assumption that people are dumb and need things explained to them in simple terms.

Unfortunately, I think most people are dumb.

I don’t necessarily mean that as a knock against Clinton. It’s just the way things seem to be.

Concurrence Hell

I enjoy reading the little paragraph at the end of a Supreme Court decision syllabus summarizing who voted with whom. They tell you how complicated any particular court decision is.

Here are some examples, from simplest to most complicated.

First, there’s the per curiam opinion, which is unsigned, and therefore needs no summary at the bottom of the syllabus telling who voted with whom:

There’s the unanimous opinion:

SOUTER, J., delivered the opinion for a unanimous Court.

Then there’s the case with a lone dissenter or concurrer:

SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and STEVENS, KENNEDY, SOUTER, GINSBURG, BREYER, and ALITO, JJ., joined. THOMAS, J., filed a dissenting opinion.

There’s the case with a few dissenters signing one opinion:

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, THOMAS, and ALITO, JJ., joined. BREYER, J., filed a dissenting opinion, in which STEVENS, SOUTER, and GINSBURG, JJ., joined.

There’s the case with a partial concurrence or dissent:

SOUTER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, THOMAS, BREYER, and ALITO, JJ., joined. STEVENS, J., filed a dissenting opinion, in which GINSBURG, J., joined, except as to Part IV.

There’s the case with both a concurrence and a dissent:

SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, SOUTER, THOMAS, GINSBURG, and ALITO, JJ., joined. KENNEDY, J., filed a concurring opinion, in which ALITO, J., joined. BREYER, J., filed a dissenting opinion, in which STEVENS, J., joined.

There’s the case with multiple concurrences and/or dissents:

ALITO, J., announced the judgment of the Court and delivered an opinion, in which ROBERTS, C. J., and KENNEDY, J., joined. KENNEDY, J., filed a concurring opinion. SCALIA, J., filed an opinion concurring in the judgment, in which THOMAS, J., joined. SOUTER, J., filed a dissenting opinion, in which STEVENS, GINSBURG, and BREYER, JJ., joined.

There’s the case where it gets a little more complicated:

SOUTER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, THOMAS, BREYER, and ALITO, JJ., joined, and in which STEVENS and GINSBURG, JJ., joined as to Part III. THOMAS, J., filed a concurring opinion, in which SCALIA, J., joined. GINSBURG, J., filed an opinion concurring in part and dissenting in part, in which STEVENS, J., joined.

Or even more complicated:

ROBERTS, C. J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III–A, and III–C, in which SCALIA, KENNEDY, THOMAS, and ALITO, JJ., joined, and an opinion with respect to Parts III–B and IV, in which SCALIA, THOMAS, and ALITO, JJ., joined. THOMAS, J., filed a concurring opinion. KENNEDY, J., filed an opinion concurring in part and concurring in the judgment. STEVENS, J., filed a dissenting opinion. BREYER, J., filed a dissenting opinion, in which STEVENS, SOUTER, and GINSBURG, JJ., joined.

But I think my favorite is this one, from a 2003 campaign finance decision (which, incidentally, was gutted last week):

STEVENS and O’CONNOR, JJ., delivered the opinion of the Court with respect to BCRA Titles I and II, in which SOUTER, GINSBURG, and BREYER, JJ., joined. REHNQUIST, C. J., delivered the opinion of the Court with respect to BCRA Titles III and IV, in which O’CONNOR, SCALIA, KENNEDY, and SOUTER, JJ., joined, in which STEVENS, GINSBURG, and BREYER, JJ., joined except with respect to BCRA §305, and in which THOMAS, J., joined with respect to BCRA §§304, 305, 307, 316, 319, and 403(b). BREYER, J., delivered the opinion of the Court with respect to BCRA Title V, in which STEVENS, O’CONNOR, SOUTER, and GINSBURG, JJ., joined. SCALIA, J., filed an opinion concurring with respect to BCRA Titles III and IV, dissenting with respect to BCRA Titles I and V, and concurring in the judgment in part and dissenting in part with respect to BCRA Title II. THOMAS, J., filed an opinion concurring with respect to BCRA Titles III and IV, except for BCRA §§311 and 318, concurring in the result with respect to BCRA §318, concurring in the judgment in part and dissenting in part with respect to BCRA Title II, and dissenting with respect to BCRA Titles I, V, and §311, in which opinion SCALIA, J., joined as to Parts I, II—A, and II—B. KENNEDY, J., filed an opinion concurring in the judgment in part and dissenting in part with respect to BCRA Titles I and II, in which REHNQUIST, C. J., joined, in which SCALIA, J., joined except to the extent the opinion upholds new FECA §323(e) and BCRA §202, and in which THOMAS, J., joined with respect to BCRA §213. REHNQUIST, C. J., filed an opinion dissenting with respect to BCRA Titles I and V, in which SCALIA and KENNEDY, JJ., joined. STEVENS, J., filed an opinion dissenting with respect to BCRA §305, in which GINSBURG and BREYER, JJ., joined.

So much for judges being mere umpires!

Oh, For a Helicopter

New Jersey’s two Democratic senators, Frank Lautenberg and Bob Menendez – the latter of whom is in a tight race against Republican Tom Kean, Jr. – both voted for the president’s awful torture/enemy combatant/habeas-corpus-stripping bill yesterday.

If I were still a New Jersey resident, I would consider not even voting for U.S. Senate this year. If Democrats can’t stand up for themselves, they don’t deserve to control either house of Congress.


Except that Glenn Greenwald makes an excellent point.

But a desire to see the Democrats take over Congress — even a strong desire for that outcome and willingness to work for it — does not have to be, and at least for me is not, driven by a belief that Washington Democrats are commendable or praiseworthy and deserve to be put into power. Instead, a Democratic victory is an instrument — an indispensable weapon — in battling the growing excesses and profound abuses and indescribably destructive behavior of the Bush administration and their increasingly authoritarian followers. A Democratic victory does not have to be seen as being anything more than that in order to realize how critically important it is.

A desire for a Democratic victory is, at least for me, about the fact that this country simply cannot endure two more years of a Bush administration which is free to operate with even fewer constraints than before, including the fact that George Bush and Dick Cheney will never face even another midterm election ever again. They will be free to run wild for the next two years with a Congress that is so submissive and blindly loyal that it is genuinely creepy to behold.

Greenwald also makes the point that Supreme Court Justice John Paul Stevens is 86 years old, so Bush might get another court appointment in the next two years. If the Republicans keep the Senate and Stevens dies or becomes incapacitated, then Bush can get nominate whomever he wants in his place, meaning that “the Supreme Court will be composed of a very young five-Justice majority of absolute worshippers of Executive Power — Thomas, Scalia, Roberts, Alito and New Justice — which will control the Court and endorse unlimited executive abuses for decades to come.”

Or, as she puts it:

Imagine you are stranded on your roof in rising floodwaters. Sooner or later you’re going to drown if you aren’t rescued. Yet you refuse to be rescued in an old rowboat because it might be leaky and you are waiting for a helicopter.

Well, folks, the Dems are the rowboat, and there ain’t gonna be a helicopter.


Thoughts on Alito

Get used to saying “Scalia, Alito” rapidly, as in, “Roberts, Scalia, Alito, Thomas,” who will be voting closely together in lots of cases.

Fortunately, there are still five pretty solid votes on the Court for the area I care most about, gay rights – Stevens, Kennedy (who wrote Lawrence and Romer), Souter, Ginsburg, and Breyer. Now that O’Connor’s presumably gone, I think Kennedy’s going to become the new swing vote. Also interesting and still semi-applicable: this SCOTUSblog article from June about a possible “gang of three” – just replace “Rehnquist” with “Alito” in the following excerpt:

On a Court somewhat more conservative without O’Connor, Kennedy’s influence seems sure to grow. He has a chance to become the new balance wheel, a role that was filled so routinely by O’Connor. (Even if there were to form a solid Rehnquist-Scalia-Thomas-Roberts phalanx, they would still need Kennedy to prevail, and he would not be with such a quartet automatically.) Kennedy also has more influence than is sometimes credited to him. He has a store of common sense that saves him from ideological rigidity, and that steers him away from agenda-driven voting. He has an even deeper sense of what history asks of the few who become members of the Court. Those are summonses to the use of sound judgment.

As I’ve said recently, despite my relatively liberal social views, my judicial views have been in flux lately. Alito seems not be an ideologue or an asshole like Scalia, which is good. I prefer him to someone like Janice Rogers Brown or Priscilla Owen. (And hey – go, New Jersey, with two out of nine seats!)

The Harriet Miers nomination was bad for the Court as an institution. The Alito nomination is good for the Court, regardless of how good or bad it turns out to be for the country.

NYT Four Years Ago

Thanks to Lexis, here are the articles (with opening paragraphs) that the New York Times ran on its front page four years ago this morning. As late as 8:45 that morning, this was the news of the day. One minute later, it was all completely forgotten.

No issue of a newspaper has ever become irrelevant more quickly.

* * * * * *

Key Leaders Talk of Possible Deals to Revive Economy

WASHINGTON, Sept. 10 – Key figures in both parties responded to the darkening economic outlook today by exploring possible compromises on additional tax cuts, and the Democratic chairman of the Senate Budget Committee suggested that such a deal could involve the politically perilous step of tapping temporarily into the Social Security surplus.

Pressure mounted on President Bush to drop his cautious approach to dealing with the weakening economy, much of it from within his own party. Republicans are voicing growing concern that the White House has underestimated public unease about the economy and the threat it poses to members of Congress up for re-election next year.

Confronted with polls showing that support for Republicans was eroding even before the government reported on Friday that the unemployment rate had surged, nervous Republicans moved on a variety of fronts.

City Voters Have Heard It All As Campaign Din Nears End

The first time the phone rang, Victoria Ehigiator was elbow deep in a sink of soapy dishes. She dried her hands and picked up the phone. It was Al Sharpton on the line, calling about the primary election. He said his piece, and she went back to the dishes. A few minutes later, the phone rang again, and she lifted herself from the bubbles once more.

That time it was Fernando Ferrer. And then it was Gloria Davis. Followed by Adolfo Carrion.

As one digitized caller after another dropped into her home, thanks to new technology that can swamp the telephones in a ZIP code or an entire city with the actual voice of, say, Ed Koch, urging a vote for Peter Vallone, Ms. Ehigiator started to suspect that very few people in New York were not running for something — whether it was mayor, comptroller, public advocate, borough president or City Council.

And as for those few who weren’t candidates, they all seemed to be calling her about those who were.

Scientists Urge Bigger Supply Of Stem Cells

WASHINGTON, Sept. 10 – A panel of scientific experts has concluded that new colonies, or lines, of human embryonic stem cells will be necessary if the science is to fulfill its potential, a finding that is likely to inflame the political debate over President Bush’s decision to restrict federally financed research to the 64 stem cell lines that are already known to exist.

In a 59-page report that examines the state of human stem cell science, the panel also endorsed cloning technology to create new stem cells that could be used to treat patients. Mr. Bush strongly opposes human cloning for any reason, and the House of Representatives voted in July to outlaw any type of cloning, whether for reproduction or research.

The report by the National Academy of Sciences, perhaps the nation’s most eminent organization of scientists, is scheduled to be made public on Tuesday morning at a news conference in Washington. It does not address Mr. Bush’s policy directly, though it strongly supports federal financing for stem cell research.

Nuclear Booty: More Smugglers Use Asia Route

ISTANBUL, Sept. 10 – The police in Batumi, a Black Sea port in Georgia, heard a rumor in July that someone wanted to sell several pounds of high-grade uranium for $100,000. The most tantalizing aspect of the tip was that one of the sellers was reportedly a Georgia Army officer.

All sorts of scoundrels have tried nuclear smuggling in recent years. Many are amateurs; most of what they try to peddle proves useless for making bombs.

But the possible involvement of an army officer gave the Batumi case a measure of deadly seriousness, beyond its status as another example of how the smuggling of nuclear material has shifted to Central Asia.

Traced on Internet, Teacher Is Charged In ’71 Jet Hijacking

Thirty years after a black-power revolutionary hijacked a jetliner from Ontario to Cuba and disappeared, Canadian and federal authorities matched the fingerprints he left on a can of ginger ale in the airplane with those of a teacher in Westchester County and charged the teacher with the crime yesterday.

The teacher, Patrick Dolan Critton, 54, of Mount Vernon, N.Y., was charged with kidnapping, armed robbery and extortion in United States District Court in Manhattan. He is facing extradition to Canada, where a detective had tracked him down through a simple Internet search.

The authorities said that Mr. Critton, a fugitive for 30 years, had been hiding in plain sight for the last seven years, working as a schoolteacher, using his real name, raising two sons and mentoring other children. Even one of the police officers who arrested him said he had the appearance and demeanor of a gentleman.

But as a young man, the authorities said, Patrick Dolan Critton was a revolutionary with a taste for the most daring of crimes.

In a Nation of Early Risers, Morning TV Is a Hot Market

How much morning television can one nation watch?

Ever since the owlish Dave Garroway ambled through the “Today” program on NBC starting in 1952, sometimes accompanied by a chimpanzee, television screens have greeted awakening Americans with the combination of hard news, feature reports and soft celebrity interviews that has come to be known as the morning news program.

But the competition for bleary eyes has grown more intense as media conglomerates have awakened to the idea that changing lives, heightened interest from advertisers and other factors have made the morning one of the few areas of growth in the television business.

School Dress Codes vs. a Sea of Bare Flesh

MILLBURN, N.J., Sept. 7 – In the tumult of bare skin that is the hallway of Millburn High School, Michele Pitts is the Enforcer.

“Hon, put the sweater on,” she barks at a pair of bare shoulders.

“Lose those flip-flops,” to a pair of bare legs.

One student waves her off as Mrs. Pitts crosses her arms in a “Cover that cleavage” sign. “You talked to me already,” the girl insists, then promises, “Tomorrow!” as she disappears around a corner.

Baseball caps, a taboo of yesteryear, pass by unchallenged, having slipped in severity on a list of offenses that now include exposed bellies, backs and thighs. For Mrs. Pitts, the assistant principal, there is simply too much skin to cover.

With Britney Spears and CosmoGirl setting the fashion trends, shirts and skirts are inching up, pants are slipping down, and schools across the country are finding themselves forced to tighten their dress codes and police their hallways.

* * * * * *

Here are the editorials that ran in the paper that morning, with opening paragraphs:

The Politics of Panic
The summer has barely ended, but President Bush and his Congressional allies are already frantically rewriting their script for the fall. This was supposed to be a season for Mr. Bush to talk about “values,” not fiscal policy. But with a sinking economy, evanescing surplus and tottering budget, Republicans are going back to the drawing board. Some, like Trent Lott, the Senate minority leader, want to cut the capital gains tax. House Republicans are talking about broad spending cuts. The White House says Mr. Bush would listen to these and other ideas to revive the economy. There is a whiff of panic in the air, and panic can lead to bad policy.

Spoiling the Broth
When Frank Flynn, a Columbia University professor of organizational behavior, drafted a fictitious letter to 240 New York restaurants, he did so in the hope of studying “vendor response to consumer complaints.” The letter stated that he had been stricken with “extended nausea, vomiting, diarrhea and abdominal cramps” in each of the restaurants after a wedding anniversary dinner. Those symptoms were nothing compared with the headache Professor Flynn must have had last week when he realized how badly his research had gone awry. His letter caused a reign of terror in many of the city’s top restaurants, as management tried to ferret out the culprits. If his subject had been culinary paranoia or perhaps the temper of the high-profile chef, the letter would have been perfectly crafted.

Primary Choices
This list summarizes The Times’s recommendations in some primary races throughout New York City and Nassau County today. All are Democratic primary choices except for the borough presidency in Staten Island, where there is only a Republican primary. Poll hours are 6 a.m. to 9 p.m.

Mark Green

Public Advocate
Betsy Gotbaum

William Thompson


* * * * * *

Here’s the summary of the paper’s contents that appeared on the inside front page.



Nuclear Smugglers Turn To Central Asian Routes
The appearance of a relatively large quantity of uranium, nearly four pounds, on the black market in Georgia, a former Soviet republic, has underscored concerns within the American government that trafficking in nuclear material has shifted from Europe to the Caucasus, Central Asia and Turkey. A1

New Fighting on Eve of Talks
Two soldiers were slain by Palestinian snipers near a checkpoint separating the Palestinian town of Tulkarm and Israel. Israeli tanks shelled Palestinian security positions outside Jenin in the West Bank. Both sides were still discussing plans for truce talks tentatively set for today. A3

Afghan Fighter’s Fate in Doubt
There were conflicting reports that Ahmed Shah Massoud, the leader of the last remaining opposition to the ruling Taliban, had survived a suicide bomber’s attack on Sunday. A15

Suicide Bombing in Istanbul
Two police officers were killed and at least 20 people were injured when a suicide bomber set off a powerful explosion in the busy Taksim Square district, officials said. A3

Russia Firm on Missiles
Defense Minister Sergei B. Ivanov expressed Moscow’s resolve to oppose America’s missile defense plans on a day when President Bush was on the telephone to President Vladimir V. Putin seeking to buttress their personal relationship. A14

Joseph R. Biden Jr., chairman of the Senate Foreign Relations Committee, said that plans for missile defense sacrifice national security for the sake of a “theological” belief and that the effort to make such a system work would cost astronomical sums. A14

Irregulars Labeled Terrorists
The Bush administration designated as a terror group the United Self-Defense Forces of Colombia, a right-wing paramilitary group responsible for hundreds of killings. Secretary of State Colin L. Powell is to meet with President Andres Pastrana today. A10

East Timor Vote Approved
The United Nations certified the results of East Timor’s first democratic election and a newly chosen constituent assembly prepared to start drafting a Constitution. A15

World Briefing A8


Key Leaders in Congress Discuss Further Tax Cuts
Prominent figures in both political parties responded to the darkening economic outlook by exploring possible compromises on additional tax cuts. The Democrat who is chairman of the Senate Budget Committee suggested that a deal could involve the politically perilous step of tapping the Social Security surplus temporarily. The White House and some Capitol Hill Republicans also talked of spending cuts. Polls show that support for Republicans is eroding. A1

Dole to Seek Senate Seat
Elizabeth Dole is expected to announce her candidacy today for the North Carolina Senate seat being vacated after the 2002 election by Jesse Helms, a fellow Republican. A16

Driver Beaten After Boy’s Death
The driver of a tow truck that accidentally hit and killed a 4-year-old boy in Los Angeles was severely beaten over the weekend by a crowd of more than 20 people, the police said. A16



Call to Expand Cell Pool
A panel of scientific experts concluded that new colonies, or lines, of human embryonic stem cells will be necessary if the science is to advance. The finding is likely to inflame the political debate over President Bush’s decision to restrict federally financed research to the 64 lines already known to exist. A1

Findings on Arsenic in Water
The National Academy of Sciences has concluded that arsenic is so dangerous in drinking water that stringent levels set by the Clinton administration and later suspended by the Bush White House were justified but perhaps not strict enough. A20

G.P.S. Not Reliable, U.S. Says
The Global Positioning System — which airlines plan to use to land flights in zero visibility, railroads want for avoiding train collisions and ships use to navigate shoals — is vulnerable to interference and even “spoofing” by enemies, the Transportation Department said. The report suggested that older technologies should be maintained as backups. A21

Health & Fitness F5


30 Years After a Hijacking, A Suspect Is Arrested
A teacher in Westchester County, Patrick Dolan Critton, 54, was arrested in connection with the 1971 hijacking of a Canadian airliner to Cuba. Canadian investigators tracked him down through the Internet. A1

New Charges for Jailed Mayor
State prosecutors charged Philip A. Giordano, 38, the three-term mayor of Waterbury, Conn., with raping the two girls, aged 9 and 10, with whom federal prosecutors said he had repeated sexual encounters this year. If convicted of the new charges, he could spend the rest of his life in prison. B1

Last Chance for Votes
The six major candidates running to succeed Mayor Giuliani ranged across the city in a final burst of politicking before today’s vote. B1


ARTS E1-10


Denver Defeats New York
The Broncos beat the Giants, 31-20, to inaugurate a new Denver stadium. D1


The Fashion Police Get Tough
Shirts and skirts are inching up, pants are slipping down, and schools across the country are finding themselves forced to tighten their dress codes and police their hallways. A1

Incest Verse Prompts Recall
The New York City Board of Education recalled a Maya Angelou book that had been sent under a Mayor Giuliani initiative to libraries for children in kindergarten through third grade. A poem in the book uses explicit language about incest. Officials cited a clerical error in explaining how the book was put on the list. B2

Catholic School Strike Looms
Teachers at 10 Catholic high schools in New York City and its suburbs threatened to go on strike as early as today over pay and delays in talks. B3


U.S. Accuses Firm of Sex Bias
The Equal Employment Opportunity Commission filed a sex-discrimination suit against Morgan Stanley Dean Witter in the case of a highly paid bond saleswoman who was fired. The commission chairwoman said as many as 100 other women had also been victims of bias within a single division since 1995. C1

Bitter Gucci Fight Over
The French billionaire Francois Pinault took effective control of the Gucci Group with an agreement to buy much of the stake held by a rival tycoon, Bernard Arnault. C1

Nikkei Plunge Alarms Investors
The Nikkei stock index, which has lost 25 percent of its value this year, is in danger of falling below the 10,000 barrier, a level last seen in 1984. It could even drop below the Dow Jones industrial average, a situation not seen since 1957, the opening days of Japan’s economic boom. C1

A Comeback on Wall Street
The stock market rallied from early losses in the day. The Dow, which plunged 3.5 percent last week, closed down just 0.34 point, at 9,605.51, after beginning the day down as much as 112 points. The Nasdaq gained 7.68 points, to 1,695.38, and the S.& P. 500 rose 6.76 points, to 1,092.54. C9

More High-Tech Jobs Cut
Qwest Communications, the operator of large fiber optic and local telephone networks, said it would eliminate 4,000 jobs, or 6 percent of its work force, by early 2002. C6

Gang of 3?

Here’s a great analysis of how Roberts could become part of a new “Gang of 3” on the Court:

Thus, the possibility is a Court in the new Term starting in October that has Scalia and Thomas, joined somewhat loosely by Rehnquist, on the most conservative wing, Justices Souter, Ruth Bader Ginsburg and John Paul Stevens on the most liberal wing, and Roberts somewhat loosely aligned in the center with Kennedy and Breyer.

It’s all tea leaves at this point, but this is interesting nonetheless.

Kelo v. New London

I didn’t think this day would come, but today I find myself agreeing with Justices Thomas, Scalia, and Rehnquist (and O’Connor) and think that the more liberal-minded justices (Stevens, Ginsburg, Souter and Breyer, and sort of Kennedy) issued a really asinine decision this morning.

The Court ruled in Kelo v. New London, 5-4, that governmental entities can take private homes for private economic development. The “takings clause” of the Fifth Amendment states: “nor shall private property be taken for public use, without just compensation.” A governmental entity has always been allowed to take someone’s private property and provide compensation for doing so, but only if it’s for a “public use” – a highway, a railroad, etc. (There are more examples, but I can’t think of any – I’m far from an expert on the takings clause.) This morning, in an opinion by Justice Stevens (who’s usually one of my favorites), the Court broadly interpreted “public use” and stated that private economic development can be considered a public use if a government entity thinks it is.

What’s weird is that this decision can be interpreted, in one way, as pro-corporation. Meanwhile, Thomas, dissenting, writes, “This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a ‘public use.'”

FYI, Kennedy agreed with the majority, but only based on the specific circumstances of this case. It’s possible that if the facts were a bit different, the decision might have gone the other way.

I don’t know what on earth the majority was thinking with this one.

Interstate Wine

The U.S. Supreme Court ruled this morning that a state cannot prohibt wineries located out of state from shipping wine directly to customers in that state. The decision “is expected to increase the sales of wines over the Internet by small, boutique wineries.”

And I love it when things like this happen:

The majority is Kennedy (author), Scalia, Souter, Ginsburg, and Breyer. The dissent is Rehnquist, Stevens, O’Connor, and Thomas.

Scalia versus Thomas! Stevens and Thomas voting together! Dogs and cats living together!

And how often do you see the Supreme Court having to interpret the amendment that repealed Prohibition?

I’ll really have to read the decision.

I Live Here, Too

I’ve gotten over being depressed. Now I’m just pissed. I’m not moving to Canada; this is my country, too, and nobody gets to tell me to leave. Forty-nine percent of the country voted against W — and probably even more, but thanks to likely voter fraud, we can’t know for sure. And don’t hate the red states — there are plenty of blue-staters in that part of the country. (Except not so much in Nebraska, Kansas or Oklahoma.)

A 51-percent, 3.5-million popular-vote win seems shocking only because Bush lost the popular vote in 2000. In reality, W won the popular vote by the narrowest margins of any candidate since 1976. That’s not a mandate. That’s not some overwhelming voice of the people.

Two out of three Americans are not evangelical Christians. There are more of us than there are of them.

The gay marriage amendments? Read Evan Wolfson’s piece, to which I linked yesterday. Momentum is on our side. Young people are on our side, and they’re our country’s future. Remember — forty years ago, bans on interracial marriage were still legal.

As for the Supreme Court, Lawrence v. Texas was decided 6-3. If Rehnquist and O’Connor had retired and been replaced by archconservatives after Democratic filibusters were overcome, we still would have won Lawrence, 5-4. We must not relax, though. Justice Stevens, please hang on for a few more years. O’Connor, you too.

This is my fucking country, and I’ll be damned if I’m going to let some bigots take it away from me.

The Day After

What I wrote in my head as I lay in bed at 4:00 this morning:

Half of me wants to scream, half of me wants to cry, and half of me is just numb. That doesn’t make mathematical sense, but it hardly matters in a country that no longer cares about reality.

What a disaster.

Bush won 51 percent of the popular vote, a higher percentage than Clinton ever got. No candidate had broken the 50-percent mark since 1988.

All 11 of the anti-gay-marriage amendments passed, even in Oregon.

Social conservatives Jim DeMint (North Carolina), Tom Coburn (Oklahoma), and John Thune (South Dakota) will now be in the Senate, and probably gay-baiting Mel Martinez (Florida) as well. The Senate will contain 54 Republicans.

Chief Justice Rehnquist is likely dying, so we will soon have Chief Justice Scalia. Moderate Justice O’Connor will probably retire, and liberal Justice Stevens is 84 years old.

The fabled youth vote never showed up. Young people didn’t vote in any greater numbers than last time. As Matt Haughey says, “Fucking stoned slackers. You can never depend on them for anything.”

(Update: Youth turnout actually went up.)

And Bush won the same percentage of gay voters as last time. Absolutely fucking astounding.

Sparky speaks my thoughts.

The Left Coaster writes excellently.

Andrew Sullivan writes about the impact on gays.

I feel reverse schadenfreude. Instead of taking pleasure in others’ pain, I’m taking pain in others’ pleasure. I felt this way in fifth grade, when one of my best friends won both the math and language-arts awards, leaving nothing for me. He was beaming and I was in tears.

I get the message. We’re not wanted here. Fine. I’m ready to secede. Let’s create the Greater Federation of Canada and Former Northeastern United States. It would look something like this. Who’s with me? West Coasters, you can join us too.

Part of me says: We got through the first four years, we can get through the next four.

The other part of me says: Supreme Court. Supreme Court. Supreme Court. That’s 25 years of hell right there.

Last night at around 6:30, before any polls had closed, I turned to Matt, breathed deeply, and said, “Let’s just sit here for a while and appreciate this moment, before any bad news starts coming in.” He looked at me like I was crazy.

What a disaster.