My view is that we had so many inspectors in there and enough forces in the region to back up the inspectors that we sort of had Saddam pinned down, in terms of his ability to do something fairly far-reaching with weapons of mass destruction.

How many times have we heard that before? Democrats justifying Saddam Hussein staying in power; making excuses for why we shouldn’t have invaded Iraq. Not understanding the seriousness of the threat that was posed to our country and the rest of our allies in the region. But this isn’t a quote from Nancy Pelosi, it is actually from an interview from August, 2004 with our new Secretary of Defense, Mr. Robert M. Gates. I don’t know exactly what Bush is saying with this nomination, but its not “stay the course.” Interesting.

I woke up Wednesday morning and looked out my fourth story window to discover that the torrential rains of the night before had washed away most of the red and yellow leaves that had accumulated in the streets over the past month. Despite being early November, my google weather report said that it was to be 65 degrees with only the highest of high wisps of clouds overhead. But much more had been washed away from the streets of DC the night before. I had stayed up until 4 in the morning watching the unofficial results come in from Montana and Virginia, so I wasn’t shocked to see that both Tester and Webb were holding on to slim leads, and along with them the Democrats hanging on to control of the Senate; I just didn’t really believe it.

It’s been a long time for Democrats. I should rephrase that: it’s been a long time for those of us who couldn’t understand what was wrong with our country that they would blindly follow cocksure leaders down an obviously wrong path. Over the last 6 years, my faith has admittedly been shaken. I had begun to believe that our politicians could flaunt rules and procedures, push the boundaries of corruption, make countless errors of judgment and ignore Constitutional mandates, all with few repercussions. I thought perhaps that there truly was an unbridgeable divide between parts of the country that would never be able to communicate without partisan rhetoric, let alone actually agree. There may still be, and indeed, the country is as divided as ever. But I have regained some, a sliver, of faith in the notion of politicians actually being held accountable for countless breaches of the nation’s trust.

The short-lived neo-conservative run has come to an end. The pendulum has swung back to Democrats and it will undoubtedly swing back again. The lessons of the past are rarely taken to heart, and it won’t be long before Democrats are committing the sins of old. But for now, and in this one moment of change, we may actually be able to uncover some of the falsities and lies that have brought us to this point in history. The Congress that enabled our leaders to write, sign and cash their own political check has been held accountable at the polls and now it is time for those leaders to answer the questions that we all need to know. If the Democrats don’t do one damn other thing for the next two years, it would still be a monumental victory for the country.

One of the reasons why increasing gas prices are viewed with such disdain, and rightfully so, is that they amount to a lowering of wages across the board, harming workers who already have the lowest incomes. Yesterday, a friend of mine, only half-jokingly, said that if Palestinians had to drive to their jobs it wouldn’t be worth working. I’m not denying the effect on people with the lowest incomes, but I think that it would be best to offset those losses elsewhere (for instance eliminating sales tax on food and necessities in states that have them) and raise taxes on gas to European-levels.

Americans’ use of gasoline has massive external costs, both to other Americans and to the rest of the world. All of the usual suspects are byproducts of our obsession: our tolerance of unsavory rulers in the Middle East and South America, the perverse incentive to wage costly resource wars, serious degradation of the environment, ridiculous traffic etc. These costs, to a large extent, are not factored in to the everyday price of gasoline. In fact, the costs to society from our reliance on oil and gas is exponentially greater than the out-of-pocket costs to consumers of those resources – driving is far too cheap. We, as a society, simply pay those costs elsewhere. So, like any good economist would say (I’m not including myself in that group), we should be focused on achieving efficiency in a market that isn’t functioning correctly – the price of gas should reflect the costs that are currently externalized, reducing demand to an efficient rate and providing accurate market signals to companies to develop alternatives. Instead, political pressure causes short-term “solutions” in the form of artificially increased supply to termporarily bring down prices.

Ironically (or maybe not at all), this is not clearly a Republican or Democrat issue, despite the dis-honest political bickering. Of course, Republican’s professed (but rarely actualized) disdain for taxes makes it hard to imagine them leading the charge on such an issue, but their overall praise for efficient markets (again unactualized) and decreased reliance on “foreign oil” (ditto) fits nicely with the proposal. Democrats have an easy sell to their Hummer-hating, BigOil-conspiracy-theory-developing constituency, and they don’t seem to shy away from taxation. Still, while it is counter-intuitive to most Americans, and largely above their head, it could be explained in a way that the average voter could understand. Unfortunately, political debate has become absurdly simplified wheras real-life solutions to real-life problems are rarely simple.

I am half way to a milestone of my own. The second year of law school is infinitely better than the first. The truth is nobody, not even a lawyer, cares about property, torts and contracts — the standard 1st year curriculum. But taking a class on the legislative process with a man like Professor/Father Drinan is the reason I came to law school in the first place. Basically, he was personally ordered by the pope not to run for Congress for a fifth term because his positions were embarrassing to the church. Anyone who can agitate the church to the point of forcing the pope to issue a global proclamation has my eternal respect — and to do it from the inside is even more impressive. There are about a dozen people in the class, which he conducts in a modified version of the traditional Socratic method interspersed with fascinating, quasi-related stories about his life experiences – which he seems to have had more of than the vast majority of people on earth or off it.

So on the first day of class we’re discussing one of my favorite topics – statutory interpretation – and Father Drinan ambles towards me and says,

“Mr. Silberman, since you are first here on the seating chart,” as I nod and quickly sit up in my chair wondering how the guy in the back row could be first on the seating chart, “What do you think of the New York Supreme Court’s decision in Braschi?”

The case is pretty straightforward: two homosexual men had been living together for years in a rent-controlled apartment in NYC, the lease was in Brashi’s companion’s name who passed away, after which the landlord tried to evict the plaintiff. New York City regulations, however, stated that surviving “family” could take over the lease of a rent controlled apartment if the lease holder passed away. So the question: Does Braschi’s relationship fall under the definition of “family.” There are all sorts of legitimate ways to address the question: look up “family” in the dictionary; attempt to discern the intent of the legislature in passing the regulation and decide whether they intended it apply to such situations; look at the modern societal conception of “family” in New York City in 1989 and ask whether this situation comports with such a conception etc. The answer I heard myself defending surprised me even as I said it:

“Well, I think the judge was wrong to force a meaning of “family” on the statute that was clearly not meant by the legislature when they passed it. The courts should not overstep their boundaries of interpretation by imposing their social mores on the rest of society.”

What did I just say? Where the hell did that come from, the Conservative Manual of Judicial Interpretation? Have I been reading too many Scalia dissents? Did I even mean it? As Father Drinan prodded me with further questions I back-tracked and qualified my original position by arguing not that the judge was necessarily wrong to interpret “family” in that way, but that such an interpretation could actually hurt the cause by facilitating a backlash among the legislature that would set back gay rights. But this too was clearly disingenuous. The rest of the day, as I thought about my response it occurred to me why I had been so quick to resort to the modern conservative notions of judicial roles and statutory interpretation: it was easy. It is very easy, in any situation, and especially when on the spot, to say: “well, that’s not the role of the court, “family” means what it means and it don’t mean that.” It is much more difficult to argue the more nuanced alternative: that definitions and societal conceptions are constantly evolving and that what one group of people meant by something a long time ago is not only indeterminate but hardly even worthwhile as anything more than guidance. That two gay men or women share the same bonds of love and commitment as any other people and that they are equally as deserving of the protection of our laws regardless of whether a particular legislature thought to include them in their definition of a “family.” And that the purposes that are behind allowing a widow to take over the lease of the home she has lived in for the last 20 years apply with equal force to the survivor of a relationship that was never officially recognized by society, but that consisted of every aspect of our definition of family.

Shortly after the realization that my response was one of intellectual convenience and weakness under pressure, I decided to look up the actual meaning of “family”. To add to my lack of intellectual legal sophistication, I found that according to dictionary.com even the aforementioned Justice Scalia could not have argued with the ruling of the prescient New York Supreme Court:

fam•i•ly ( P ) Pronunciation Key (fm-l, fml) n. pl. fam•i•lies:
1)
a. A fundamental social group in society typically consisting of one or two parents and their children.
b. Two or more people who share goals and values, have long-term commitments to one another, and reside usually in the same dwelling place.
2) All the members of a household under one roof.

The inevitable onset of exam-related panic was triggered by the recent and sudden change in weather on the East Coast. On Wednesday I woke up and put on my California uniform – hemp shorts and Rainbow sandals – and went to class. Not less than 24 hours later, the city was under a frost warning as the temperature dropped precipitously to an ear-numbing 30 degrees. I actually like the cold. I like bundling up and seeing my breath against the city backdrop and anticipating the first snow. I love walking in to a warm café and drinking hot coffee. (On a side note, I think every city that has a cold winter should do like Prague and have grog on every street corner.) What I don’t enjoy is the realization that an entire semester has gone by and I’m hopelessly behind. Hobbled by the motivation-draining recognition that law school is really a year long and anything I learn now will be subsequently forgotten, it’s been difficult to drag myself to class, let alone keep up with reading.

So, in the spirit of avoiding work that is desperately overdue I present my also long overdue opinion of Mr. Alito. I feel like I was pretty fair with Roberts and Miers, so hopefully I retain some credibility with our conservative readers when I say Alito should not be confirmed to the Supreme Court. I largely accept the premise that nominations to the Supreme Court are political and thus the corollary that Bush should be allowed to nominate whoever he wants. This is mostly because I also accept the premise that judging itself is largely a political process. There is simply no way to be objective when it comes to the major contemporary legal issues; every judge makes value decisions when deciding what the constitution means. In some ways this limits my arguments; I can’t yell and scream about protecting our rights and the like because I think our “rights” as defined in the Constitution are pretty vague and subject to opinion. Likewise, I can’t claim to know precisely what the founder’s meant in drafting each provision of the Constitution. So I’m left with political arguments. But I think at the moment these arguments are pretty strong.

First of all is Bush’s approval rating. It is clear that the public has lost the trust and respect for the President that (somehow) carried him through last year’s (has it only been a year??) election. All of the things that Democrats, objective independents and anyone else who has been paying attention have been complaining about for years, are catching up to the President. Jon Stewart said that he thinks part of the reason some conservatives are doubting Bush is because they finally saw what it is like to be on the other side with the Miers nomination. That would neatly explain why Bush has chosen Alito – to get back in the good graces of those who have supported him through every blunder because they believed at some point it would all be worth it when they got to nominate a Supreme Court justice.

I have to ask those people now: was it worth it? Was it worth a failed war, a corrupt administration, huge deficits, the undermining of America’s place in the world, corporate malfeasance run amok, and lies piled on lies to get your Alito? Conservatives around the country were so angry with Miers because they accepted each of these monumental failures defending Bush tooth and nail, because he promised to nominate Scalia-lite. Congratulations.

The second political argument against Scalia is that his views do not reflect the views of the majority of the country. As stated above, this nomination is a concession to the extreme right wing of the party that supported Bush even throughout his blatant failures. This, in and of itself, is reason for every Democrat, and every self-respecting Republican to vote against confirmation. In my view, the crazies already got their veto, they cannot now turn around and say that politicians acting on a power which they are granted are somehow overreaching that very power. In other words: just say no to Alito.

See e.g., Rehnquist
Stanford B.A., M.S. Political Science
Harvard M.S. Government
Stanford J.D.
Clerk for Justice Jackson
etc…

Every other sitting Justice was a Circuit Judge at a United States Court of Appeals. I’m finding my own reaction somewhat elitist, but I’m certainly not the only one who was comforted by Roberts’ qualifications and disconcerted by Miers’ lack thereof. I just keep thinking, “Is this the person I want deciding our constitutional future?” Then I remember that I’m talking to myself and it doesn’t matter what I think and go back to eating my Hot Pocket and reading about fantasy football.

Update:
Conservatives are pissed.
Hispanics are pissed.

Update II:
Insight? And what’s up with this?:

“She hasn’t said a lot, but you don’t go to a church for 25 years if you’re not comfortable with what they think,” said Texas Supreme Court Justice Nathan Hecht of Austin, Texas, a church member who says he’s shared a “semi-romantic” friendship with Miers for more than 30 years. “I’m sure she’s consistent with the church’s position.”

Why do we here at OMA love Christian Conservatives? Because they simultaneuously advocate the aggressive waging of war to spread psuedo-”Democracy” while preaching the assasination of democratically elected leaders — both against the clear teachings of their own professed religion. Awesome!

#1: Do Not Read “1L” by Scott Turow
Seriously, the guy is an unbelievable whiner. Harvard is obviously a competitive school and I’m sure the people there put a lot of pressure on themselves to succeed, but how many times was he on the edge of nervous breakdown? There are 550 1L’s at Harvard every year. If he didn’t like the people in his study groups or clique of friends, he should have found a new ones. Or, better yet, studied on his own.

Tangential piece of advice: study groups are largely mechanisms for the “gunners” [From Wikipedia: “A gunner in educational colloquial terminology is a person who is competitive, overly-ambitious and substantially exceeds minimum requirements. A gunner will compromise his/her peer relationships and/or reputation among peers in order to obtain recognition and praise from his/her superiors.” Sounds about right to me.] to get together and either attempt to display their infinite wisdom, or to expose others’ lack thereof, for the purpose of patching the holes in their egos that constantly leak self-esteem. If you decide to join a study group (I never did and did fine, but see #3) wait until you know the people in the group and you know how they will respond under pressure and whether or not they are complete assholes, with the latter being the most important consideration.

As for Turow, things may have been slightly more intense 20 years ago as far as the Socratic method and the hard-ass professors, but I highly doubt the gossip/gunner/workload etc. factors have changed much at all. I read it, it freaked me out, and it was completely unnecessary.

Tangential piece of advice 1.2: “Law School Confidential” is nearly as worthless and will freak you out even more. There are a few bits of good advice in the book, but it’s basically hundreds of pages of “how to be an obnoxious law student”. Scoplaw, a classmate of mine, gives similar, but better advice here and discusses the somewhat infamous Section 3 [“Law School Can be Different”]. (p.s. If anyone has specific questions about GULC or Section 3 feel free to leave a comment or email me.)

#2: So Should I Prepare at All?
I wouldn’t read anything too specific to the law. You may have a book to read for orientation or the like; go ahead and read that. What I wish I would have done, instead of reading the above, was to read something critical of the legal educational institution or the legal institution in general. It is very easy to ignore such issues when you are memorizing the requirements for a contract, but in my opinion this will provide the needed perspective to understand not just the “what” but the “why”.

I’m having second thoughts about even recommending the background reading so I won’t give any specifics, but the point remains: anything you need to know (and plenty more) you will learn in class. If you want to know what a Tort is, read the wikipedia entry, anything more in depth is probably a waste of time and energy.

#3: Study Techniques
Any advice that someone gives on how to study is bound to be completely inaccurate for >75% of people out there. Personally, I figured out which classes I had to read for and read every page assigned. I figured out which classes I didn’t have to read for, and barely cracked the book. I figured out which professors lectured exactly what they wanted you to know (usually corresponding to the classes in which reading is not necessary), and I took copious notes, everyday. Other classes you could get by without attending once and doing all the reading. The one thing that I did for every class (and again, many people I know never did this) is my own outline. Outlines are basically 50-100 page summaries of the class in outline form. Most (if not all) exams are open-note, which means open-laptop and Ctrl-F. Searchable notes and a detailed outline are key in exams where you cannot possibly remember everything and time is the main constraint. All that said, probably 10+% of the class did exactly the opposite and did far better than me, so my only advice here is take any study advice with a grain of salt.

Tangential advice 3.1: Work on your typing and become very familiar with Word. Seriously, this will help you far more than doing summer reading on the Rule against perpetuities (which is obsolete anyway).

#4: For God Sake, Please Do Not Brief Every Case
Okay, so I know a few people who did this, and I’m pretty sure that they aced every class, but seriously, for those of us that do something other than law school (at least once in a while) there are far better ways of spending time. This falls under the rubric of study advice, so again, take it for what its worth, but I briefed cases for the first week and never thought about doing it again. When you are studying for exams, a brief is far too hollow to provide any help and you really should read and outline the case again anyway so it is fresh. The only legitimate reason to brief cases is the ever-present fear of the cold-call, but once you’ve been made a fool of by a professor once or twice (and seen every other member of your class equally humiliated) this fear should subside. More importantly, Westlaw does this for you. Go to the headnotes, copy them and paste them in to your notes if you need to, but please, do not brief every case.

There is a whole other set of advice for when classes get going, but I’ll save that for another time as this nonsense is long enough. The overarching theme of any advice I can give is to chill out. Seriously, there is plenty of shit to worry about in law school: grades, journals, moot court, your reputation, job prospects, where a good happy hour is on a Monday night . Make sure you focus on the things that actually matter (like the latter). Listen to what everyone has to say, but don’t necessarily believe a word of it.

If for some unknown reason anyone has specific questions unfit for comments feel free to email me.

In nominating John Roberts, the president has chosen a right wing corporate lawyer and ideologue for the nation’s highest court instead of a judge who would protect the rights of the American people. Working for mining companies, Roberts opposed clean air rules and worked to help coal companies strip-mine mountaintops. He worked with Ken Starr (yes, that Ken Starr), and tried to keep Congress from defending the Voting Rights Act. He wrote that Roe v. Wade should be “overruled,” and as a lawyer argued (and won) the case that stopped some doctors from even discussing abortion.

This shows a complete lack of understanding of what it means to be a lawyer in America and a misinterpretation of how the legal system works. For a liberal organization that should understand the value of process, they completely disregard the fact that we have in place an adversarial system where it is the lawyer’s duty to represent their client to the best of their ability and to let the judges and juries decide the outcome. Roberts may have many things going against him (I haven’t seen them yet – other than his being “right wing”) but none of them are included in the above. All this demonstrates is that they disagree with his positions, but they make no legal attempt to discredit them and as such undermine any shred of credibility they may have had. This frustrates me to the extent that there will likely be a political battle (maybe even in the next few months) where very relevant arguments can be made, but MoveOn and others on the left are showing that they lack the objective credibility to make such arguments.

This, to me, is shameful. This is pure partisan nonsense, a la what Democrats (rightfully) claim to disdain about Republicans (see e.g., attacks against John Edwards). The man was summa cum laude at Harvard and magna at Harvard Law. He clerked for Rehnquist. He worked in government at the DoJ , went to private practice, and then returned to government again (which, I promise you, pays nada compared to what he made at Hogan & Hartson), arguing some of the above cases for the US at the DoJ. This guy is the paradigm of a qualified attorney and a top-notch legal mind. Compared to someone like Gonzalez, Roberts is the Jesus H. Christ of legaldom.

What I am slowly but inexorably coming to realize is that my lack of knowledge, and corresponding lack of opinion, is not a fault or a failure on my part. In fact I am quite proud that my intense hatred of all-things-neo-con has not clouded my rationality like those of the MoveOn.org clan who would oppose the re-nomination of O’Connor herself were Bush to be the one putting it forth. The law, the Supreme Court, and the country have survived much more valid threats and have survived. People need to take a step back and realize that there are things that are more important than ephemeral political battles. I think John Roberts will do exactly that, and that is all we can ask of any Supreme Court Justice.

I am now a full-time 9-5er working for a large, inefficient, bureaucratic government agency. While my job is great in that I get to sit here and write a post to fulfill my seriously-neglected duties to this here blog (fortunately “El Oso, El Moreno, and El Guy-Who-Never-Posts” doesn’t flow very well or I’m sure Oso would have changed the name months ago), it is lacking in that I do not get paid a single penny. That’s right ladies and gentlemen (and Republicans), the largest, richest, most powerful Government in the history of the world hires poor, starving, massively endebted law students to work 40 hours a week for nothing. Sure, this has happened throughout history, but in the past they would have had to clothe and feed their slaves. Now we naïve lawyer wannabes eagerly take the scraps they throw at us and are happy to have them. Just think how pretty my résumé will look!

So, what have I been doing with myself? Funny you should ask. Lately, I have been living in a bit of a post-1L haze that is 2-parts post-traumatic stress disorder, 1-part anticipatory anxiety, and 1-part sheer orgasmic release. Sometime around 8 weeks ago, I began to feel a muted but lingering sort of panic. Now, I don’t really stress out. The only things that get me riled up are (1) running out of beer when the liquor stores are closed, and (2) well, that’s about it. There was plenty of beer, so panic should have been averted, however there was this unfamiliar nagging feeling that crept in to my gut each time I glimpsed one of those infamous red and black tomes of death know as a casebook. Yes, exams were upon me.

Very rarely do I prepare in advance for things. I am impetuous. Spontaneous! Exciting! Or maybe exceedingly lazy and disorganized. It’s not important. The point is, I had pretty much neglected to do all of my reading for two classes, and the other two I had basically ceased attending (at least in a conscious mental state) in February (shortly after discovering RBI baseball on everyvideogame.com. Still, this is how I have lived my entire academic life; I am used to adapting and accepting the consequences that months of slacking perpetuate: cramming. My mind, however, is stubborn. It will not function until absolutely necessary, and then only reluctantly, sporadically between 12 and 4 a.m., and only when coaxed by quasi-legal stimulants and 3 packs of cigarettes.

We have a week before the first exam. I have a plan…I have many plans. I have a calendar, and I’ve drawn a little schedule with the blocks of hours corresponding to classes I will read for and cases I will memorize. I open the book. Then comes that little panic feeling. I go to the bathroom. Still the panic feeling. I read a case from the first week of Civil Procedure, my first exam.

Mental dialogue follows:

“What? What are they talking about? Hang on…Did we go over this? There is highlighting and that is my handwriting.” [Check the syllabus.] “It’s there, but I don’t remember talking about it.” [Look at class notes. Pages of notes on the case.] “Did I type these? What the hell is going on here…?”

This process repeated itself countless times over the next few days. Slowly, slowly I learn federal civil procedure. Nonmutual offensive collateral estoppel. The reverse-Kroger scenario. § 1441, 1367, Article III, section 2 p. 1 line 4. etc. etc. etc. But this is bad. That week was cram time for all my exams, not just civ pro. My calendar is in tatters. I take the stupid exam. It is a long, detailed issue spotter. A fact pattern I can hardly understand, but that I understand to mean “Write down everything you know about this class in the next 3.5 hours.” So I do. It is incoherent, babbling. I say Erie when I mean International Shoe, I mix up the Asahi test with Hanna Path 1. It’s ugly, but it’s over. Each time I walk out of an exam, I leave a piece of my soul.

Whether you are a smoker or not, I would bet a substantial amount of money that there is nothing better than a cigarette after a 4 hour law school exam. I would gladly shun sex, drugs and rock and roll, for that first post-exam drag – just before you come down from the Red Bull and coffee, before the Sominex and No-Doze reaction in your bloodstream has subsided, before the sheer greatness of your utter and complete failure has struck you and the adrenaline is still fooling you in to thinking you may have passed…

For some reason our last exam was on Monday, and it was Property. I have nothing to say about Property other than that I can honestly say I have never felt so inept and completely incompetent in my entire life (at least since that one night in the summer of 1997). But, alas, it was over. The campus had been deathly silent for weeks. People were huddled in the library
at all hours, the weather had been terrible, people you had known for the past 8 months walked by without smiling or saying hi. But suddenly, the place turned in to a theme park. Everyone is drinking everywhere; frisbees and footballs are flying around the quad, hugs abound. It was a nerd carnival. The post-exams party was at the notorious Big Hunt, a personal favorite of yours truly. I’ve never had a bad time there – at least not that I remember.

But there is no rest for the weary. Our always considerate school demanded us out of our rooms by the weekend. Then came the Write On competition, which can only be described as one last self-flagellation for the Masochistic Law Students of America (of which I am a shameful member). Finally, it’s over. Of course, there is still work, grades, journal results, early interview week etc. But the hard part is over, and now I can tell all the 1L’s I meet: “Don’t worry…It’s not that bad.”

So there you have it. A long winded excuse for my prolonged absence. Hopefully sometime before I succumb to complete lethargy I will write up a post summarizing the last nine months.
But don’t count on it.

When inspiration escapes…post about homosexual necrophiliac ducks.