Sneaking Suspicions
Archives-- June 22-28, 2003

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This page includes posts from June 22-28, 2003 in the usual reverse order. Each posting on the home page is perma-linked to these archive pages.

June 28, 2003
Burying the lede in a Voting Rights Act story

Washington Post staff writer Edward Walsh wrote a good story about the Supreme Court’s most important race relations opinion issued this week. 

As I see it, the Voting Rights Act decision in Georgia v. Ashcroft will have the greater potential direct impact on the lives of far more Americans than the more intensely followed affirmative action decisions also issued this week about the University of Michigan college and law school admissions programs. 

The Supreme Court held that in reviewing the potential impacts of a redistricting plan in those states requiring preclearance by the Federal government, District Courts should look at the statewide impacts on minority voting rights and opportunities to advance minority interests as a whole, and not on the particular predicted impacts on a given district. It also emphasized that there should be no presumption that the only way in which minority interests will be heard is if a minority representative is elected. It’s enough if the state can show that there’s sufficient minority voting strength in the proposed districts to provide the opportunity for significant influence in the election process, or to provide the opportunity for an effective coalition of political interests that includes minority voters.

As Walsh’s story showed, the presumed immediate beneficiaries of this decision will be Democrats.

Unfortunately, that was also the primary focus of Walsh’s article.

I would have much preferred it if either Walsh or his editors had chosen to lead the piece with the final paragraph, because that passage dealt with the larger story beyond perceived partisan advantage.

Among others, Walsh interviewed Paul Hancock, a lawyer in private practice now but the former head of the voting litigation unit in the U.S. Justice Department. Here’s the final paragraph of the piece:

…Hancock said the Georgia plan was a sign of progress since enactment of the Voting Rights Act in 1965. "When you have minorities in Georgia saying we don't need to be overly concentrated in districts and can form coalitions with whites to further our interests, that shows progress," he said. "Twenty years ago in the South, it was considered that a district had to be 65 percent minority to give minorities a chance to elect candidates of their choice."

I’m not such a Pollyanna as to think that either major political party had this particular improvement in mind as they fought for advantage over the Georgia redistricting legislation. On the other hand, I can recognize a change for the better in race relations when I see it. The Georgia case shows the development of coalition politics that don’t focus on the race of the candidate or depend upon a massive bloc of minority voters stuffed into “safe” districts. Thanks to this decision, the courts don’t have to automatically assume a Voting Rights Act violation under these circumstances.

That’s a good thing, and it would help if more folks thought about that fact than which party might benefit in the short run.

After all, political allegiances can change over time, can’t they?

June 27, 2003
The Ten Commandments and public buildings

About 8 years ago our older daughter was selected for the Sussex County Band for the middle school level.

This entitled our budding flutist to spend a day with other musically talented kids from school districts all over Sussex County, along with their middle school music teachers, culminating in a performance that evening.

We drove across county that night to Woodbridge Elementary School for the show. 

Woodbridge Elementary is a very old school building, dating back to 1928. It was originally the main school building for the old Greenwood School District, which was consolidated with the nearby Bridgeville District in the late 1960’s. Woodbridge is similar to most districts in the state in trying to use old school buildings for as long as possible.

Even so, the building was very clean and well kept. While it clearly had up-to-date facilities, the assembly hall where the concert was held also had some very old touches remaining.

This included a large old mural on one wall, depicting the Ten Commandments.

Seeing this mural was a bit startling at first, until I recalled a few things about the Woodbridge District.

First, it’s a very rural section of Sussex County. Second, there is a significant Mennonite population among the District’s few thousand residents. Third, if someone went to the trouble of painting the Ten Commandments on that wall many, many years ago, as was obviously the case, there would be a strong pull of local tradition to keep it there. Finally, given the fairly conservative atmosphere that pervades the two small towns of Greenwood and Bridgeville, as well as the fact that the mural is only visible inside the building, few if any objections would be raised.

I thought of this mural as I read this week’s Third Circuit Court of Appeals decision about an old plaque depicting the Kings James version of the Ten Commandments, attached to a wall of the Chester County Courthouse in Pennsylvania.

Based on that decision, and assuming I’m correct in dating when the Decalogue mural first appeared on the wall of what’s now Woodbridge Elementary, I’d guess the District’s mural will most likely continue to stay there without legal challenge.

For example, as with the Courthouse, the Woodbridge School building is eligible for listing on the National Register of Historic Places, if it isn’t already on the Register. If the mural was created at a time closely linked to the building’s construction, it would therefore provide valuable historical information about the manner in which public school officials and local citizens viewed their pedagogical responsibilities at that time.

As the Third Circuit noted, the issue is not simply the fact of the Decalogue’s appearance on a publicly owned structure, but how a reasonable observer would understand the context in which the Ten Commandments appear:

The fact that the plaque is a longstanding fixture on an historic monument, the Courthouse itself (which has been placed on the National Register of Historic Places), lends further support for the notion that the context of the plaque changes the way in which the reasonable observer views it.

In addition, other than some possible restoration work or occasional cleaning of the mural, it’s not obvious that the District has done anything else about the mural since its creation. This kind of evidence seemed to take on added importance in the Chester County decision:

[I]t is highly significant that there is no evidence that the County has taken any action involving the plaque since it was erected over 80 years ago. We presume that the reasonable observer knows that the County has not held a ceremony to commemorate the anniversary of the plaque or even installed lights to draw attention to the plaque at night.

The Third Circuit took pains to note that it was not creating a new form of historic preservation exception to First Amendment jurisprudence. Nonetheless, I believe that the Court’s comments on this issue at footnote 10 will probably become its most often cited passage:

[W]e conclude that by considering the history of a religious display as part of the context in which the reasonable observer views the display, we will ensure that courts following this opinion will not be forced to hold that benign and longstanding religious references are unconstitutional; instead courts should examine the age and relevant history surrounding the use of the display as part of the context in which the reasonable observer views it. At the same time, by stressing that history is only part of the context of a display, and not giving a presumption of constitutionality to historic artifacts or monuments, we ensure that displays that do have the effect of endorsing religion are not held to be constitutional simply because of their age.

That appears to be a fair test, and an appropriate balancing of interests on a potentially thorny issue.

NOTE: Just by coincidence, we saw a truly intriguing movie involving the Ten Commandments this week—The Discovery of Heaven. The lead actors are Stephen Fry, Greg Wise, and Flora Montgomery, and the movie is based on the novel of the same title by Harry Mulisch.

It’s among the movies under consideration for this fall’s Rehoboth Film Festival. On Mondays and Tuesdays this summer the Film Society is showing screenings of some of the nominees, with group discussions thereafter. 

If you have a chance to see The Discovery of Heaven at this or some other film festival, I recommend it highly.

June 26, 2003
Phonics Phun

On occasion our daughters show a less than keen interest in maintaining certain academic skills, such as spelling.

This can lead to some confusion when trying to interpret the telephone message notes left on the kitchen island.

This afternoon's collection included this one:

chester drawer
end table
in Z & B's room

Took a while to understand that first line, but knowing the local dialect helped.

June 26, 2003
Rednecks remembered--all of them

So Lester Maddox died this week. Rest in peace.

Maddox was one of those political folks who became more symbolic than real, especially as the national media descended upon Georgia in the late 60's and early 70's.

What Maddox expressed as an opponent of integration was fairly representative of many Southerners. And it's certainly true that folks not from the South sometimes took comfort from the fact that they didn't talk and act like Maddox in expressing their own views about race relations. Some still do.

Randy Newman's 1974 song Rednecks, the first song on his Good Old Boys album, featured a highly topical reference to Maddox. I always thought this song provided a far more balanced portrait of the country's race relations problems than many people were comfortable admitting to themselves.

Newman's Rednecks lyrics were never going to make it past radio censors, but even if they were somehow toned down, I don't think this song would have gotten much air play.

The lyrics were too honest for easy public acceptance.

June 25, 2003
The golden rule for discovery violations

Yesterday the Seventh Circuit Court of Appeals affirmed once again that the Golden Rule applies in dealing with violations of the discovery process, where parties in litigation obtain pre-trial evidence from the other side:

If you want the Court to do something about the fact that the other side's attorney isn't following the rules, make sure you're following the rules yourself.

Joe Rice was a young teenager out to celebrate the 1998 Chicago Bull's NBA championship title. Unfortunately, he and his buddies met up with some Chicago cops, who took offense at the celebrating.

One bad thing led to another, and Rice alleged that he and his friends were subjected to pepper spray and other excessive force by the police. They sued the City of Chicago and the police officers for a variety of civil rights violations.

According to the appellate panel, Rice's attorney didn't do such a hot job in representing his client. He frequently missed deadlines for producing responses to discovery, even after several warnings by the magistrate judge assigned to handle these kinds of pre-trial problems.

Eventually, the magistrate lost patience, and ordered Rice's lawsuit dismissed with prejudice because of his lawyer's violations of the rules.

On the other hand, the magistrate didn't address the fact that the City's attorneys also failed to respect the discovery rules:

[T]he attorneys representing the City of Chicago consistently and repeatedly stonewalled the plaintiff’s attempts to conduct depositions. This pattern of conduct persisted even in the face of explicit court orders ordering both parties to comply with the discovery requests. On August 23, 2001, for example, the magistrate ordered the plaintiffs’ depositions to be completed by January 15, 2002. The defendants’ attorneys, however, repeatedly insisted that they were too busy to schedule depositions during the months of October, November, and December....

On January 22, plaintiffs filed another Motion to Compel Depositions because the defendants had continued their pattern of remaining adamant in their position and continued to refuse to schedule any depositions. On February 5, the plaintiffs again filed a Motion to Compel because the City’s counsel claimed to be too busy to produce non-party police officer witnesses for depositions. All of the aforementioned delays occurred prior to the March 7, 2002, entry of final judgment dismissing Rice as a party plaintiff.

On appeal, the circuit panel properly noted that the City attorneys were in no position to complain about Rice's attorney:

We thus consider the defendants’ stated concern about the plaintiffs’ conduct causing harm to the district court disingenuous and rife with irony. If the City was genuinely concerned about wasting the court’s time, its attorneys would not have repeatedly engaged in the same type of disrespectful, careless, negligent, and evasive behavior that required the court to intervene in four discovery disputes in less than two months. It was the City’s dilatory conduct—not Rice’s—that ultimately resulted in a three month postponement of the plaintiffs’ depositions. If the defendants’ attorneys were as busy as they claimed, the City should have retained outside counsel. [notes omitted.]

The court therefore reversed the decision to dismiss Rice's case, and remanded it back to the District Court with a none-too-subtle hint about what should happen next:

Both the appellant and the appellees were guilty of flagrantly disregarding discovery time-lines and refusing to pay heed to court orders. Moreover, because it was the attorneys and not the parties themselves who were at fault, the court should have considered the appropriateness of targeting the attorneys with lesser sanctions, such as a fine or costs to the other party.

Sounds to me like a few attorneys should bring their checkbooks with them to the next pre-trial conference.


June 24, 2003
Would you like that bandage ripped off slowly, or quickly?

Two news stories help illustrate the different approaches some folks in public life will take when dealing with the goofs they commit while addressing the public.

Howard Dean’s teenage son was arrested recently and charged along with a few other boys in a burglary scheme to steal beer from a Burlington, Vermont country club.

Sounds like a teenage prank that got a bit out of hand, and while it is certainly embarrassing for the alleged participants and their families, the political fallout (if any) would have probably expired after one news cycle.

Until Howard Dean said the following:

"The Democratic Party, all the candidates from Washington, they all know each other, they all move in the same circles, and what I'm doing is breaking into the country club."

To his credit, Dean quickly recognized the gaffe for what it was, and acted appropriately to minimize the damage from his own incredibly awful metaphor:

Monday, Dean winced as he heard his own words.

"That was an incredibly unfortunate" phrase, he said. "Why do I say these things?" he asked a press aide.

In fairly stark contrast, Richard Gephardt said the following at a political rally, in discussing how he would react as President to Supreme Court decisions with which he disagreed:

"When I'm president, we'll do executive orders to overcome any wrong thing the Supreme Court does tomorrow or any other day."

Several within the blogging community, notably Glenn Reynolds and Eugene Volokh, took issue with Gephardt’s remarks, and for perfectly valid reasons—it is entirely indefensible.

ABC’s The Note then raised the issue with Gephardt’s staff, whose first response was not only graceless in its attempt to attack those pointing out the error, but also wrong:

"The fact that this question comes from libertarian law professors should speak for itself," spokesman Erik Smith wrote in an e-mail. "Dick Gephardt knows the law. The president can not overturn a Supreme Court decision. That's not what he said. He was simply expressing his commitment to diversity and his willingness to use the tools of his office to promote affirmative action programs to the fullest extent possible. It's important to remember that Harry Truman used an executive order to integrate the military."

Perhaps Erik Smith's talents are better suited for something other than responding to press inquiries about embarrassing statements by his boss.

Here's his first clue--it’s not just libertarian law professors who took issue with Gephardt’s gaffe or with the lame attempts thus far to justify it.

For example:

  • The WSJ Opinion Journal is not exactly a hotbed of Libertarian thought.

  • Megan McArdle may exhibit an occasional Libertarian tendency, but her thing is economics, not the law.

  • Jack Balkin is a law professor, but he’s no Libertarian, as least not as I read his blog.

  • Bryan Preston is neither Libertarian (by a long shot) nor a law professor, and he’s obviously not keen on the unconstitutional comments of the Congressman from Missouri.  

And there are others, such as Ernie the Attorney, who normally refrains from openly partisan viewpoints, but also rightly challenged Gephardt’s remark.

I am a lawyer, but not a law professor. Some suggest I’m a bit conservative in my politics, but I nonetheless remain a registered Democrat.

Here’s my take:

Representative Gephardt’s recent comments about executive orders countermanding Supreme Court decisions were ill-advised at best and sandpoundingly inept at worst. His spokesman’s explanation now threatens to make the worst of a bad situation, by first attacking the messengers and then actively misstating the actual content of Gephardt’s statements. Throwing the red herring about President Truman into the mix didn’t help, either.

The Congressman should disavow this lame defense, take a page from Howard Dean’s own recent bitter experience, ‘fess up quickly, and move on.

Didn't he learn anything from Senator Lott's experience?

June 23, 2003
A Rehobosexual steps out

Note: This post presumes familiarity with a June 22 NYT piece on Metrosexuals by Warren St. John, or similar articles on the current trends among the foppish set described in Esquire, GQ or similar magazines.

By his own admission, 49-year old Fritz Schranck is not what you’d call a womanly man. He uses Edge shaving gel, wears a limited assortment of three pairs of shoes only vaguely understood as signifying something more than footwear (not counting golf shoes), and refuses to put out the money for custom-made shirts, although he appreciates the workmanship.

Schranck’s hair is rarely just so, thanks in part to a daily regimen of Head & Shoulders and a conflict in attitude about returning it to the near-shoulder length he fondly remembers from 25-30 years ago.

The conflict stems from the fact that his hair is now far too thin to be any longer than about 1 inch and not look completely ridiculous--and yet, and yet.

About once a week he applies a small dab of Dep4 styling gel to what’s left, usually during the first three weeks after his “anyone will do, thanks” stopover at the local Hair Cuttery.

Each appointment is $13 plus $3 tip, shampoo included, and vacillates between scissor cut and clipper cut depending on whether the barber/stylist remembers to ask--Schranck never remembers.

Schranck enjoys his house blend coffee ($1.25) from the Java Beach Coffee and Tea Company on Baltimore Avenue. It’s a regular weekend treat he picks up when he also fills the far more complicated coffee order he receives from his younger daughter, whom he’s just dropped off for her sales job at one of Rehoboth’s finer gift stores. Sometimes it’s spicy chai with soy milk, other times it’s a short mocha with whipped cream ($2.50), and on hot mornings it’s a frosty bottle of Arizona Green Tee. He walks the short distance to her shop from the coffee place and delivers her order, and stops by the Old Navy Outlet store on the way back home.

Schranck’s wife suggested he should buy another pair of jeans ($19.99) to go with the two pair he recently bought there, the first since a pair of Wranglers a dozen years ago. He’s managed to spend most of his thirties and forties wearing only cotton chinos or similar double-pleated khaki slacks from Dockers or Geoffrey Beene ($24/pair), thanks in large part to his passion for golf, but his wife can be very persuasive. His luck continues, as he discovers plain golf shirts, 100% cotton piqué, stacked on the Old Navy clearance table for only $3.99 apiece, in four colors, and all in his size. He buys one of each, and the jeans, and heads home.

This weekend morning Schranck is seen wearing his pair of black Rockport lace-up walkers. As he ambles along, Schranck quietly congratulates himself on stunning his daughters (ages 19 and 15) with his recent purchase of a near-identical pair of shoes in brown from the folks at Timberland that he found one evening at the Factory Brand Outlet ($59.98 on sale, Brownstone design). The girls both exclaimed “Tims!” as he opened the bag in their presence, thus confirming his own faltering steps toward an expanded sense of style.

They were both so proud.

Later that day, Schranck begins preparing dinner. He plans to broil up a family favorite, pork chops, which he purchased from the local SuperFresh grocery ($1.99/lb., in the Family Pack). He places a sheet of aluminum foil on top of the slotted pan lid on which the chops will rest, and pokes a few holes in the sheet for the drippings. He sprinkles the foil sheet with salt and pepper, puts the chops on top of the mixture, and then liberally dusts the tops of the chops with Creole Seasoning from McCormick®. As the chops begin broiling, he whips up the potatoes that will accompany the pork.

The girls and their mother ooh and aah over their meal, as the family eats dinner on their enclosed porch. At first his daughters expressed concern over the size of the chops on their plates, but there were no leftovers.

All in all, a pleasant day in the life of a typical middle-aged Rehobosexual.

June 23, 2003
Three Claudes for a not-too-startling admission

Current public relations disaster management policy for large business entities and governments tends to support open and early admission of problems, rather than fighting against the obvious facts.

Those who adhere to this policy sometimes learn that the news industry is not quite sure what to do about this practice.

Today’s three-Claude winner headline is an example. Last Friday a long freight car train derailed in California. According to this story by AP writer Ryan Pearson, rail officials tried to move the runaway train to tracks past a railyard in Commerce.

The plan didn’t work, and tons of lumber the train was carrying spilled out into a residential suburb instead.

Out of all that, this is best that the AP headline writer could come up with:

Railroad Says Its Plan to Safely Derail Runaway Cars in California Failed

I think most folks are inclined to agree with that assessment:

Spilled lumber and derailed boxcars in Commerce, California

Just the same, I think the headline staff could have written something a bit more snappy, don’t you?

June 22, 2003
Thanks for stopping by

This site experienced another Instalanche this weekend, thanks to Glenn Reynolds' reference to the post below about the Harry Potter booksale.

Welcome to all the new visitors. Take a look around and stay a while, if you're inclined.

And thank you, Glenn.


Contact Information:

Fritz Schranck
P.O. Box 88
Nassau, DE  19969


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© Frederick H. Schranck 2002-2003