An eleventh thing that didn't change with the guard might have been "Signing statements are still valid," or, to be more precise, "Signing statements are still not inherently invalid." You may remember that half-baked sloganeering about things wot Bush done was a major component of the Democratic primary last time around, and candidates gleefully fulminated against any practice of the Bush administration to which a name could be put—signing statements, for example. Thus, while I have no problem with President Obama issuing signing statements as a Constitutional matter, I must say that, like Cap'n Ed, I'm puzzled about how President Obama doesn't have a problem with what Senator Obama decried.

Added: Here's Obama's signing statement. There's nothing problematic in it—it looks a lot like the sort of signing statement issued by President Bush—save for the total absence of an explanation as to how it squares with Senator Obama's views! You can change your mind, but it's common courtesy to say why. A few years ago, I speculated that if the Democratic candidate won the 2008 election, their use of tools then decried as Bush administration black magic might renormalize those tools in the public mind. It doesn't seem to have happened that way—see this.

One of our finest public intellectuals, men of letters, and all-around freedom fighters has died, losing his battle to cancer, at age 62. Right on so many issues (Iraq, the war on terror, Orwell), and wrong on many issues (faith, the Clintons), he was one of those who you enjoyed to read, even when you disagreed with the whole thing. A legend and an icon. We won't know whether Hitchens made his peace with God in his final moments, but nevertheless, I say RIP, and my prayers go out to his family.

RIP Christopher Hitchens.

Sir Ludovic Kennedy once recalled watching the Bismarck sink. As a sailor, he said, you hate to see a ship go down, even an enemy; there's a respect, even (perhaps especially) for the deadliest of opponents. Like the Bismarck, Christopher Hitchens was fast, lethal, elegant, battleship gray... Full of seamen, too; he had enormous balls: While most people were exchanging easily-formed opinions about waterboarding, Hitchens went and had it done to him and reported back. If you were going to go up against Christopher Hitchens, you loaded for bear or prepared to be mauled.

He never wasted a reader's time, he was often exceedingly funny, and he was always worth reading even when he infuriated the heck out of you. With his untimely death, the world is a significantly safer place for wafflers, blatherers, and half-baked opinions.

"Rabbi Joshua Hammerman"'s ostensibly vile Jewish World article My Tim Tebow Problem has riled up a number of folks (e.g. 1, 2, 3), but I think it's neat that Jewish World has obviously started an article exchange program with The Onion, and I look forward to the latter's publication of the article they took in trade for this one.

There's another outbreak of "didn't-read-the-bill-itus" doing the rounds—this time about S.1867. For an example, try this.

The fuss is remarkably silly. As a general matter, the bill says (§1032) that when a person who is determined "to be a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda," and "to have participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners," and "who is captured in the course of hostilities authorized by the Authorization for Use of Military Force (Public Law 107–40), the military may hold that person "pending disposition under the law of war." (The preceding section explains more about that.) But the bill continues: "The requirement to detain a person in military custody under this section does not extend to citizens of the United States" or "to a lawful resident alien of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution" (emphasis added).

If not a divorce, then a trial separation?

I find myself continually confused by conservative critics of Obama, who accuse Obama of being both a power-mad radical bent on wrecking the country, and a bystander, who simply sits back and does nothing. Which one is it? Besides the fact that President Obama has made good faith efforts to get the Supercommittee to come to a deal, and that the ultimate legal power to create the deal rests with Congress, I'm not really sure what else Christie thinks Obama should've done. I'll bet a hefty sum that if Obama had tried to do it Christie's way, the same people would accuse him of abusing his power, and strong-arming Congress, or silencing conservative dissent, or something like that. It's not just the ignorance that's troubling--it's the unseriousness of it all.

HT: Althouse (forgot to add the link)

In a nutshell, here's what the Supreme Court ordered this morning in several Obamacare-related grants. The court is going to hear several hours of argument on the following questions: (1) Is the mandate severable? (2) "Whether Congress had the power under Article I … to enact the minimum coverage provision" of PaPACA.Pet. in 11-398. (3) "[w]hether the suit … challeng[ing] the minimum coverage provision of the Patient Protection and Affordabl...e Care Act is barred by the Anti-Injunction Act…."Nov. 13 2011 Order in 11-398. (4) "Does Congress exceed its enumerated powers and violate basic principles of federalism when it coerces States into accepting onerous conditions that it could not impose directly by threatening to withhold all federal funding under the single largest grant-in-aid program, or does the limitation on Congress‘s spending power that this Court recognized in South Dakota v. Dole no longer apply?"Pet. in 11-400. (citation deleted). Now you're up to speed.

As I've mentioned before that I find it hard to count five votes for striking PaPACA down, but I must add that if comes out 5-4, I expect to see a slew of people condemning the decision as not only a horrible mistake but in fact illegitimate. If it's struck down, the leftosphere will go berserk charging that Thomas should have recused himself, and if it's upheld, the rightosphere will go berserk charging that Kagan should have recused herself! These narratives are already in the can, folks.

Jon Chait and Charles Krauthammer each have a take on last week's elections that is well worth reading. Chait's, especially, makes for uncomfortable reading:

The Ohio result actually reflects a failure of conservative activists to understand what motivates the electorate. The conservative movement holds an ideological and generally principled opposition to government. Most Republican voters[, however,] don’t share that. They oppose government programs that seem to benefit people other than themselves.
. . . .
Republicans successfully mobilized public opposition to health care reform by portraying it as an attempt to take health care away from people like you and give it to the undeserving "them." Conservatives deliriously interpreted this as a triumph of anti-government ideology asserting itself. But as Republicans discovered when they voted for a budget to slash Medicare, the public remains staunchly opposed to cutting programs for people like themselves

Added: And then there's this from Ramesh Ponnuru.

A late addendum to this post: Russia's President says that the revival of Christianity in post-Soviet Russia is a miracle. Well, miraculous, to be sure!

You'd think so, but apparently not.

Justice Thomas has written a dissent from a denial of cert that's well worth a read. I must say, however, that Justice Thomas is quite the optimist if he believes that the court had "an opportunity to provide clarity to an Establishment Clause jurisprudence in shambles." To be sure, his dissent is wonderfully written and skewers a jurisprudence that has indeed gone "hopelessly awry." At the same time, however, it seems quite obvious to me that the reason for that shambles is that the court is deeply divided, and that accordingly, barring an Owen Roberts-style switchup, each establishment case that the court decides before new appointments bring a majority for one view of the clause or another can only make the law less clear not more. That has been the experience of the last three decades (as Thomas recounts), and it is hard to imagine why it would be different now. Until that's fixed, perhaps the best policy is for the court to avoid muddying the waters even further.

Hufflepuff offers this; with no ado at all, let's dig straight in:

The 1% is using the super-secret Joint Select Committee on Deficit Reduction (a.k.a. the Super Committee), to reach directly into the pockets of the 99% and steal hundreds of billions of dollars from them. [Nonsense. Hey, if they can start with conclusory assertions, so can I! At any rate, this is the nauseating meme we're going to have to get used to for a while: The lexicon of "Occupy" and their preposterous claim to represent "the 99%," which they of course do not. Look on the bright side: For a while, "neocon" was the ubiquitous slur of choice for conservatives, but when did you last hear that one? To everything there's a season.] This committee has unprecedented power. [The "supercommittee" has no significant power whatsoever. When it was first created, I castigated the critics who claimed it was powerful and dangerous because, I argued, it had no more power than any individual member of Congress: It could propose legislation. No more. Well, that's not quite true, I'll admit. It can, in a sense, do something that no individual member may accomplish: it can not only propose legislation but also secure a vote on that legislation. So in that sense, it may be literally true that the committee has "unprecedented" power—but if "unprecedented" is used to imply that the committee is powerful, as it undoubtedly is, that is not the case.] It has been meeting behind closed doors for weeks. [So what?] Finally, though, its plans are leaking out, and they are not pretty.

In order to spare defense contractors [who make weapons that we need], the pharmaceutical industry [which makes drugs that we need], and other fat cats [who make and finance other, uh, "phat" things that we need], while appeasing the credit agencies, whose AAA ratings to crony-clients helped crash the economy, the Supercommittee has proposed slashing benefits for current and future beneficiaries of Social Security, Medicare and Medicaid, notwithstanding that the current deficit has nothing to do with these programs. [Read that again. Right, of course: Our current deficit has nothing to do with the trillions of dollars we spend every year on those programs. To justify this literally absurd claim, watch what they do next:]

. . . .

The following chart shows the causes of our current deficits:

[See? It's not entitlements that "cause[]" our deficit, it's "tax expenditures": The cause of our deficit isn't how much we spend, but how much we refuse to exact in taxation. Like their fictitious graph, it makes perfect sense if you shut up and stop thinking about it. Now, why do I say fictitious? Two reasons: First, the obvious one just mentioned, and second, the fact that their graph doesn't even purport to "show[] the causes of our current deficits": Notice that it begins in 2009 and goes out ten years. It's a projection, i.e. a more or less informed fiction (less, in fact: There's no credible way to accurately project tax revenues or the effect of the economic downturn ten years out, although liberal tax theories often pretend otherwise by fictitiously assuming that everything except rates will remain constant).

Of course, a nice thing about making up numbers is that no one can say that your numbers are wrong, but what we can do is look at the picture as we have seen over the last few years and judge the projection in relation to it. So here are federal outlays, receipts, and welfare spending over the last few years:

But don't worry folks—don't you believe your lyin' eyes! The current deficit has nothing to do with them programs comprising a large percentage of all spending!]

. . . .

The secretive and unaccountable Super Committee is meeting behind closed doors and proposing devastating cuts that would be shouldered by the 99%. [We've got to repeat this again: The "supercommittee" is accountable to Congress. It is a committee convened to propose legislation; it has zero power to pass legislation. It can do nothing without Congress' assent. "Unaccountable"?] …

… The 1 percent may have most of the money, but the 99 percent have the votes. It is time for the 99% to tell them in no uncertain terms, Hands Off Social Security, Medicare and Medicaid! You don't speak for the 99%, pal, and neither does OWS.

"which makes even your mendacious theory look like at 'a tale told by an idiot, full of sound and fury, signifying nothing'?"

Ron Rosenbaum takes apart the stupid "Shakespeare didn't really write the plays" nonsense club, and the stupid movie that goes along with it.

Judge Diane Sykes pays tribute to the late Judge Terry Evans.

That's the evocative phrase used by a fellow I was talking to recently, and it's a good lens through which to view the locution "such-and-such threatens to take us back." It is wheeled out in political contexts by those who say that conservative reforms would "take us back a century," for example, or "repeal the new deal," etc., and in the ecclesial context by those who say that various proposals (especially those that fall under the heading "the reform of the reform") would "take us back to before Vatican II."

The trope is exhausted, and I'm tired of it too. There is no going back; even if we erected the same juridical framework we had a century ago, to the letter, we would not be transported back to that world, because the world has moved on. And that's where the irrevocability of everything comes into play: The same bell, when installed in a a new bell tower, will have a different ring. Do people really believe that our progress towards women's equality, for example, has to do solely with legal machinery such as Title VII, rather than broad-scale changes in our culture? Only by making such an assumption could they insist that it would all be undone by repeal. (Such laws of course promoted the change, but it's one-way: Their enactment promoted change but their repeal won't undo it.) If anyone actually believes that, they're wrong, for the same reason that the so-called "tenthers" will be disappointed to discover that even reversion to EC Knight and National League of Cities will not reverse the federalized mindset of modern politics; the legal framework can be changed, but society has changed and those changes can't be called back by mere statutes.

So time move relentlessly forward. But that doesn't mean that mistakes aren't made along the way, mistakes that we can try to correct as we move forward—sometimes by recovering things we dropped along the way, sometimes by taking out and dusting off ornaments that were put in the trunk along the way. Of course, the folks who really wanted that stuff in the trunk aren't happy, but that doesn't mean we're "going back" by taking them out.

One problem with the progressive paradigm is that it can seem agnostic to destination. If we're moving forward, that's progress, right? Well, at risk of getting into teleological problems, we should care about where we're going, because we are going to get there. So we should think about where the road leads (thus which road we want to be on) and measure progress in terms of distance thence. And if we one day realize that we have taken a wrong turn and driven several miles on a road toward somewhere other than our destination—toward Hell or Hull or Halifax—progress doesn't mean forging ahead, it means turning about smartly and getting back to the right road.

Post facto
MP: Straight talk on altar girls (Oct. 19, 2011)

"The Tea Party is a pre-party formation. Occupy Wall Street is not."

Paul Berman, on what's right about Occupy Wall Street, and despite how it may end up, why he supports it.

And this is how it ends:

"Never forget" starts with getting over our disbelief that it could happen again.

Lawrence O'Donnell heaps upon himself disgrace, in this interview with Herman Cain which can only be described as a hit job. If he was trying to give conservatives more ammo against MSNBC, he did his job. If he was trying to make Herman Cain appear sympathetic, he did his job. If he was trying to embarass himself, he did his job. Was this a parody?

Look, I'm not exactly a Cain supporter--I find his policy prescriptions unworkable, but I respect him as a man, and when I read his record of working for the Navy as a ballistics specialist, and being told by the draft board that he was too valuable to be drafted--I find that admirable, not shameful. For O'Donnell of all people to go that route--he praises Kerry's service(rightly), and then swiftboats Cain on the air. It's shocking and digusting.

HT: Sully

ADDED: Don't misunderstand me--I have real problems with Cain, and he think he has to be held accountable for his views(his flawed 9-9-9 plan, his statements on Occupy Wall Street, etc), but as I said with Sarah Palin, of whom my opinion rests pretty much on the ground, sleazy attacks are wrong on principle, miss the target, and only strengthen the hand of the one you're trying to criticize.

Dahlia Lithwick has this on the Hosanna-Tabor case that’s before the Supreme Court right now. The essence of the case—to put it somewhat critically—is whether a religious organization can exempt itself from the employment laws by designating employees as ministers and thus placing them in the ministerial exception to those laws. (That’s the well-established and perfectly sensible rule that courts can’t interfere in hire-and-fire decisions relating to clerical personnel, for the obvious reason that that would place government in the position of telling a religious body—at the request of a third party—who its ministers shall be, something that violates the First Amendment more plainly than just about anything else imaginable.) Take a few minutes and read Dahlia’s piece before continuing; she’ll get you up to speed.

Back? Good. What perplexed me as I read the briefs in this case is that because of limits on what courts may properly do, the case will be decided on murky grounds: Haggling over who is or isn't a minister and who gets to decide. As Dahlia recounts—vividly as ever—the court is baffled. For the record, the answer can only be that the church gets to decide who is a minister—otherwise government can simply give an extremely restrictive interpretation of “minister” and get into the afore-mentioned business of reappointing clerics—but that's not the point I want to focus on. The only reason we're stuck trying to parse the ministerial exception question is because we instinctively know that Hosanna-Tabor did nothing wrong and broadly construing the ministerial exception is the only way we can let them off the hook. And it shouldn't be.

And this is where we arrive at a perspective problem. It sometimes seems to me that liberals are apt to mistakenly think that the purpose of employers is to provide a service to their employees rather than the other way around: Labor is a commodity obtained by people and entities for the purpose of carrying out whatever activity the person or entity does. (That, by the way, is why trade unions are a sub rosa antitrust problem: They are a cartelization of the labor market.) The plaintiff was hired to do a job; she was no longer able to do it. How, then, is it rational to say that a small school, which exists to teach, must subsidize a nominal teacher and hire someone to actually teach her class, despite lacking any reasonable ability to do so?

Let's review: The plaintiff, Perich, was a teacher at a small parochial Lutheran school . She was diagnosed with narcolepsy, and (as the petitioner's brief puts it) "[b]ecause of the school’s small staff and limited budget, Perich’s absence created immediate difficulties. For a full semester, the school attempted to preserve a job for Perich by combining three grades into a single classroom. But parents"—quite reasonably!—"complained about that arrangement. Finally, in January 2005, seven months after Perich fell ill, the school hired a replacement for the spring semester." Perich resisted, the church removed her, and litigation ensued. Was that illegal? I don't know. The court may tell us in this case. But it certainly wasn't wrong. To see why, try an exercise in empathy: Don't put yourself into the plaintiff's shoes (the tool used by a sympathetic media to pick your side for you), but those of the parents. And imagine that the world is inside out: Imagine that public schools have been captured by conservatives, and they’re inculcating Christian conservative values. You feel that this is dead wrong, so you send your kid to a small independent liberal school that teaches the values you think are right with a much better kid to teacher ratio. You’re paying real money for this, because you think it’s best for your child. And the school says one day “you know, we’re going to combine two classes, because one of our teachers is on long-term medical leave. The alternative is that we’ll have to increase your tuition to cover both the nominal teacher and the substitute.” Would you honestly accept any of that? I doubt it. You’d ask why the school doesn’t just fire the teacher who isn’t doing her job, because the first concern of any parent is their child’s education; the school’s function is to accomplish that, not to transfer money from anxious parents to people who aren’t working there. Or imagine that you are a small environmental lobbying company doing important work, and your company administrative assistant gets sick! You were barely keeping your head above water before—these are tough economic times—and now you have to pay her and pay someone else to do her job?

So the problem is that the ADA treats Hosanna-Tabor the same way it treats GM, and that’s stupid. (Stipulating, for the time being, that such laws are rational when applied to GM.) Not every entity that employs is big enough to indulge the Periches of the world, no matter how much it might like to, no matter how little intent they had to discriminate. (The idea that this case involves invidious discrimination is just laughable, and quite frankly, the idea that it involves discrimination at all—cf. Black's 8th at 500—is puzzling, which makes this case even more absurd: We're fighting over the standards of summary judgment in a case that shouldn't even exist!) Oh, yes ADA excludes truly tiny entities from its reach (see 42 U.S.C. § 12111(5)(A) ("The term 'employer' means a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year")), but where do you draw the line? How big must a company be before we can say that an employee is fungible?

No abstract theory can supply an adequate answer to that. I suggest that the answer is to refuse to play the quantitative game (or to game the ministerial exception), and instead, recognizing that what the law appears to ask entities like Hosanna-Tabor to do is insane, declare that laws like ADA only apply to the extent that they don’t impose an unreasonable burden on employers. We're here today talking about this case only because courts shouldn't create the kind of exception I've mentioned and Congress won't.

It will no doubt be answered by the left that this would make the protections of the law turn on the size of the company you work for, and that's true, but I don't find that persuasive since the choice of employer is in the discretion of private parties in the market, not a single governmental decisionmaker. And it will no doubt be answered by a few on the right that it confers too much discretion on judges, but I don’t find that persuasive either since case-by-case questions demand case-by-case answers and only judges are situated to do that.