Newly-posted on SSRN: Contextualism, Constitutionalism, and Modus Vivendi Approaches

Newly-published: Community Matters: Challenges to Civic Engagement in the 21st Century, Verna Gehring ed., with contributors including William Galston, Meira Levinson, Robert Fullinwider, and me, among others.

Miers continued:

Something that's struck me in the past two days is the difficulty the administration has had in fighting one fire about the Miers nomination without adding fuel to the other. The first is the "Souter problem," the fact that a lot of the (especially social) conservative base cares deeply about judicial appointments, care for reasons that are almost entirely about outcomes (will Roe be reversed or not?-- see Jonah Goldberg), and care in ways that leave them deeply distrustful of "stealth candidates" appointed by Republican presidents.

The second is the "crony-too-far" problem-- the sense (expressed very well in both Randy Barnett's WSJ op-ed on cronyism and George Will's column) that Miers is unqualified for the post of Supreme Court justice and that she has been chosen primarily because of her closeness to President Bush.

The difficulty is that, in order to answer the first set of critics, the administration and its allies are resorting to saying: "Trust us; the President knows her really well, and she's a real right-winger not a potential Souter." But that only emphasizes the fact that she's an insider pick. The more they say "trust us," the more skeptics of the second sort will say, "We shouldn't have to take Supreme Court nominations on faith, and the fact that George W. Bush is the guy who has all this secret knowledge about her makes us more worried, not less."

And so Reginald Brown's defense of Miers quoted by Orin Kerr over at the Conspiracy, asks us to believe that Bush approached the appointment seriously, because "This is a man who almost lost the Presidency because of the liberal activism of the Florida Supreme Court"-- the very last issue that should be brought up to reassure those who are worried about cronyism threatening judicial independence. It goes on to say,

Judging takes work, but the folks who think "constitutional reasoning" is a talent requiring divination, intense effort and years of monastic study are the same folks who will inevitably give you "Lemon tests," balancing formulas, "penumbras" and concurrences that make your head spin. The President sees through that mumbo jumbo and recognizes that good Justices are the ones who focus on the Constitution’s text, structure and history and who call balls and strikes. Bush is in favor of demystifying the Court and the Miers choice is part of that effort.[...]She also happens to be a gun-toting evangelical who gives money to pro-life organizations and spends her free time taking care of her elderly mom. [...] Miers lives in the real world. She knows what the practical impact of a Kelo decision will be and that the laws of Nigeria and the European Union aren’t terribly relevant to U.S. constitutional analysis. And as important, the people that she hangs out with don’t give a hoot what Linda Greenhouse and the New York Times think.

The anti-liberal-judicial-elitism card is cute, but only aggravates the cronyism worries. John Cornyn's WSJ op-ed is much the same.

The NYT has so far been presenting conservative worry about Miers as being mainly Type 1. But, in the blogosphere and the conservative legal academy and intelligentsia, it's much more Type 2. And the more defenses we see of Miers that say, "She don't go in for that fancy hifalutin law stuff," the worse the Type 2 worry will get, for at least two reasons. One is the slap-in-the-face aspect. Many brilliant conservative lawyers dedicated to moving the law in a conservative direction have spent a generation excelling in the legal academy and on the bench by making important, impressive arguments about constitutional law. The Miers pick, and this defense of the Miers pick, is an open insult to those scholars and judges: "We don't like your kind, with your fancy law degrees and all; you're just like the libruls, because you think constitutional law requires hard intellectual work." That's tactically stupid, a deeply demoralizing message to send to those whose intellectual work has done so much and holds the promise to do more.

But the Type 2 worry isn't just about amour propre. People who hold it ctually believe-- rightly-- that this appointment is wrong, that friendship with the president is not a qualification for the Supreme Court, that constitutional law does require hard intellectual work that requires practice and thought in advance, and that the absence of any of the convetnional qualifications is something to at least worry about. The more the administration defends against Type 1 by saying "Miers ain't one of them fancy elite types with their heads full of fancy law-larning," the more impossible it becomes to defend against Type 2.

OK, I shouldn't spend all day e-mailing bloggers on a topic and pretend I'm not blogging. So, briefly:

1) Lawrence Solum has the definitive Harriet Miers blog post.

2) My official slogan for what I think will happen at the hearings: this nomination is "A crony too far." All the slack people cut Bush, pre-Katrina and for non-lifetime appointments, when he appointed people purely because he'd seen into their heart, will be absent in a post-Brown, post-Katrina, Supreme Court context. Personal loyalty to the President may be a relevant qualification for White House counsel but simply is not for Supreme Court justice; and Senators know this. What's more, they actually care, both because they're afraid of going down with Bush's cronyism ship at this point, and because they care deeply and self-importantly about the Senate's vaunted prerogatives. If the Supreme Court is reduced to a Presidential patronage position, then Advise And Consent loses all its advertised majesty.

3) Fill in this sentence, with a straight face. "Harriet Miers is one of the nine [or even ninety] most ________ lawyers in America," or "is one of the best ________ in America." Now try to fill in the blanks with anything that does not involve the words "President Bush" (i.e. "trusted by President Bush," "personally close to President Bush," etc.) Attention GOP operatives: No fair just saying "qualified;" there has to be some operationalization of "qualified" that doesn't involve the words "President Bush." NB: someone cribbed this from me, after I went into his office and said it out loud...

Seen two very good movies in two days.

First of all, everyone should go see Proof, mixed reviews notwithstanding and even if (like me) you're fundamentally annoyed by Gwynneth Paltrow. It's quite well done, with great performances from Anthony Hopkins, Hope Davis and (grrr... pulling teeth) especially Paltrow, who does strung-out-by-grief-and-coffee-or-maybe-crazy quite convincingly. (Jake Gyllenhall is fine but nothing special.) The heroin chic body helps here, whereas I always find it weird when we're supposed to believe she's a great beauty. But mainly she actually acts it well. The writing is, well, the same as the writing of the play for all but two scenes, and the play was great.

And the movie is the most deeply University of Chicago I can imagine a movie being. Not the two-minute When Harry Met Sally opener, not the Indiana Jones fleeing from his office hours gag, but a complete movie both set in and filmed in the confines of the university and the neighborhood and capturing them both, visually and emotionally. They got it right. It's not a true story, but it's what that story would have been like.

Then last night we saw a special sneak preview of Serenity (with this guy).

Hot damn.

No spoilers ahead.

We went with one person who'd never seen the TV show Firefly, and he didn't have any problem following it at all and really enjoyed it. Exposition and character introduction are handled surprisingly smoothly and quickly, and the story manages to work really well as a stand-alone movie-sized story that just happens to have had 14 episodes of high-quality TV as setup, to get these characters to where they are at the beginning of the movie. It helps, in a way, that Firefly got cancelled so soon. It was still at the stage of mystery rather than mythology-- we were beginning to get a sense of what the questions were but didn't have elaborate continuinty-heavy answers yet. (The movie provides a lot of the crucial answers.)

For those who have seen the show: the movie is a little less frontier-inflected, a little less Chinese-inflected, a little more space adventure. But it's seamlessly continuous with the show-- in the social and political background, in the low-tech, patched-together atmosphere, in the subplots that get woven in, and in the characterization and character interaction.

This is not a genre-buster like Matrix or even a genre-redefiner like Blade Runner. It's more of an ante-raiser like Alien: "See? This thing that we've gotten used to seeing done badly can be done really, really well." For Alien, it was making a monster movie genuinely suspenseful, scary, and visually compelling. For Serenity, it's making space opera morally serious and centered on complete characters with convincing relationships and first-rate dialogue. I predict that it will make watching Star Wars or Star Trek movies harder to do without cringing.

And it's really, really good. There are a few tricks that will be familiar to fans of Buffy and Angel. And there are homages to Buffy as well as to Star Wars. But none of that is distracting or even noticeable for more than a second-- they'll make you chuckle if you get the connection and won't matter if you don't. There's a major trick that managed to take me completely off-guard, that's a terrific plotting idea.

There's Summer Blau, whose strikingly weird and creepy face manages to carry a lot of the atmosphere of the movie, and who turns professional ballet training into kick-ass movie martial arts very effectively. Nathan Fillian, Gina Torres, and Adam Baldwin prove themselves matches for the dialogue Joss Whedon gave them. (Harrison Ford famously complained to George Lucas, "You can write this shit, George, but you can't *say* it." Whedon's lines are meant to be said.) And the look of the movie proves that $40 million can go a long, long way in an age of good CGI.

Go see it. Make Universal Studios lots and lots of money, so that they will give it to Whedon and let him make more.

(See also this New York magazine review, which is a touch less spoiler-free than mine. And also: this fun, funny, offbeat joint interview with Joss Whedon and Neil Gaiman. I'll be moving on to Gaiman's new novel, Anansi Boys, as soon as it arrives from Amazon.)

Department of free publicity:

Go see Serenity!

"Joss Whedon, the Oscar® - and Emmy - nominated writer/director responsible for the worldwide television phenomena of BUFFY THE VAMPIRE, ANGEL and FIREFLY, now applies his trademark compassion and wit to a small band of galactic outcasts 500 years in the future in his feature film directorial debut, Serenity. The film centers around Captain Malcolm Reynolds, a hardened veteran (on the losing side) of a galactic civil war, who now ekes out a living pulling off small crimes and transport-for-hire aboard his ship, Serenity. He leads a small, eclectic crew who are the closest thing he has left to family –squabbling, insubordinate and undyingly loyal."

Expectations are high; more will be blogged soon...

Yalta:

I came off the bench just this once to write the following:

Applause Lines, at TNR.

I should note that a few bloggers got there before I did, notably Matt Welch, Pejman, and Stephen Bainbridge. See also Anne Applebaum.

Shhh.

I'm really not here.

But for the handful of people whose political, intellectual, and cultural tastes or at least knowledge overlap so neatly with mine that they'll get this, I thought I'd put it up. (Julian, John, Jon, and Russell, I'm looking your way.) For everyone else, well, it'll live on when people Google the right combination of words. And I find it too amusing to let it sit in the back of my head for months until I restart blogging.

Last night was the annual play-reading for the members of the University of Chicago's Law and Philosophy workshop, a fun tradition.

Tonight is Neil Gaiman's (yes, that Neil Gaiman)talk at the University-- indeed at the Court Theater, three short blocks from my front door.

One of the regulars of the play-reading, and there in a lead role last night, was one Richard Posner, Senior Lecturer in Law at the University of Chicago. He also holds down a side job, as you might have heard; he's a judge on the Seventh Circuit U.S. Court of Appeals.

Now, as the four of you reading this post probably already know, Posner's side job brought him into indirect contact with Gaiman, when Posner upheld the forces of light and goodness by ruling in Gaiman's favor in Gaiman v McFarlane, the case that was proximately about the ownership of the three characters Gaiman created or co-created for Todd McFarlane's comic Spawn, but at a more fundamental level was about the IP rights to Marvelman/ Miracleman, which MacFarlane was supposed to trade to Gaiman in exchange for the rights to the Spawn characters. Posner's opinion has become something of a cult classic, for its careful and earnest explication of Spawn's origin.

So. Anyways. I got a kick out of being able to tell Posner that one of the parties in one of his cases was speaking on campus, and out of seeing him be genuinely impressed ("Really? Gaiman's coming here? I'd have thought he was too big a deal for college campus talks") and then seeing him turn to the person sitting next to us and explain who Gaiman was, the backstory of Spawn, and the backstory of Gaiman v McFarlane.

Then the dinner break was over, and we went back to our play reading. Which was, for the record: The Tempest, itself a work of some (Eisner-award-winning) significance in Gaiman's corpus. Judge Posner played Alonso. And I sat back and grinned at how much fun Hyde Park can be, and how neatly things sometimes connect.

PS: (Will, if you happen upon this, do me a favor and don't Levywatch it. It amuses me to think that it's going to sit hidden here.)

During my leave of absence from blogging, magazine-writing, and so on, this page exists primarily as a blogroll. I recommend that you browse around through the blogs linked to over there to the left. If you desperately miss my writing, you might sample some of my academic work.

My sabbatical will end no earlier than June 2005, and may last until September 2005 or later.

Apropos of absolutely nothing...

but according to google, no one's really put this together before.

There was something grimly appropriate in the mid-career stall of former Lois Lane Teri Hatcher in those embarrassingly awful Radio Shack commercials with Howie Long (c. 1999, pre-Desperate Housewives.

Because Superman himself had an embarrassingly awful mid-career stall as a Radio Shack celebrity endorser.

Probably about twenty other people remember this, but in 1980-- in the doldrums when the only writer who could really handle the Bronze Age Superman, Elliot S! Maggin, was on hiatus writing novels instead of comics-- there was a Superman one-shot comic that was one big product-placement ad for the TRS-80, paid for by Radio Shack, and starring "the TRS-80 whiz kids!"

The comic centers on the ability of a couple of elementary-school kids sitting in their computer lab at school to do the fancy arithmetic that, apparently, Superman always did in his head before using his powers but was temporarily unable to do because he'd breathed in some special kryptonite dust courtesy of Major Disaster. He still had precise control over his powers, and could still calibrate them mathematically, so that when he was told to fly at a 44.28 degree angle to the ground at 6432.9 mph he could do just that. He could moreover measure things just by looking at them, so he could tell the TRS-80 Whiz Kids via walkie-talkie (or something) that a plane was crashing from a distance of 16,985.3 meters. The step that he couldn't perform was the super-calculation of his intercept path, in-between the super-measurement and the super-calibration of response.

No, it makes no sense whatsoever-- it's as ridiculous as any Silver Age "Jimmy Olson the gorilla-headed boy" plot, but with all the earnestness that came from combining late-70s enthusiasm for kids programming in BASIC with sheer commercial opportunism.

I'm deeply embarrassed by how much I liked this bizarre Cary Bates-written monstrosity when I was 9.

THIS POST DOESN'T EXIST...
I'm officially on a blogging hiatus. And no one's paid attention to this site in ages, since I moved to Volokh. But, even though no one reads this, I have to post:

The Red Sox win the pennant! The Red Sox win the pennant! And the Yankees lose the pennant!

I believe!

All credit to my brother Aaron. His birthday was Monday, and David Ortiz gave him the special birthday present of two game-winning hits in the same calendar day.

A new, permanent top announcement:

The standard way to read only one blogger's posts at Volokh only lasts for a week. At this BlogRunner aggregator, you can read all of my posts as if they were a separate blog, back to spring 2004; this one goes from spring '04 however far back you like.

Just in case you're interested.

Second announcement:

On a trial basis I'm going to be blogging over at The Volokh Conspiracy for a month. Let me know what you think. Everything that's already here will remain here. (Remember, 'way back when, I speculated that group-blogs would someday triumph...) And I'll continue to update the blogroll to the left, including my reading list, links to my writings, etc as well as links to noteworthy blogs/

Bye for now...

Note: for those looking for posts about the Individual Indian Monies trust fund, look here and here.

UPDATE: You ought to be reading everything on the Volokh Conspiracy; it's good, smart stuff. But if you, my most faithful readers who are still coming to this site, want to be able to quickly look at just my Conspiracy posts as if they were a separate blog, click
here.

UPDATED AGAIN: The Conspiracy has moved to http://volokh.com. My recent posts can be read at http://volokh.com/?bloggers=Jacob.

LotR

Because I complained about the omission of Boromir and Faramir's dream from the movie adaptation of LotR, people keep hitting this site from search engines when they're looking for the words of the prophecy. Those words haven't been here, but, hey, I'm eager to please.

Seek for the sword that was broken
In Imladris it dwells
There shall be counsels taken
Stronger than Morgul-spells
There shall be shown a token
That doom is near at hand
For Isildur's Bane shall waken,
and the halfling forth shall stand.

Around the web/ miscellany

Check out Eugene Volokh on whether a professor at a state university may refuse to write letters of recommendation for premed creationists; and this not at all nice but very funny Mark Kleiman post.

Everyone else has linked to them, too, but they're clearly the items of the day: the op-ed by the eight European leaders (complete round-up of coverage at Oxblog; and Josh Marshall's interview with Ken Pollack.

Letters

Following up on my TNR piece and on this post with further information on the Individual Indian Monies scandal.

Jonathan Adler, a law professor at Case Western, writes:


I enjoyed your TNR piece on the IIM trust issue -- as well as your hits
on the Interior Department's gross mismanagement on your blog. I agree
that this is an important story that the press has largely overlooked.

My one comment is that I think your conclusion is slightly unfair to many
in the conservative/libertarian/property rights crowd who have worked on
Native American issues for years. Not only are there some -- such as
Terry Anderson and the folks at PERC -- who have written on Indian issues
for a long time, but the conservative alternative is not allotment --
under which beneficial title remains in the hands of the federal
government -- but actual property rights. Allotment created a trust
relationship between the Indians and the government, so it did not
prevent the sort of mismangement and malfeasance which is endemic in the
management of Indian affairs. Actual property rights, however, would
remove BIA and the federal bureaucracy from the picture. While you are
right that many conservatives have been AWOL on this issue, the same
could be said of most liberals, and those conservatives who have
addressed the broader issues raised by federal mismanagement of Indian
affairs have proposed reforms far more meaningful than a replay of the
Dawes Act.

In any event, I'm glad to see that someone is giving this issue the
attention it deserves.

(PERC is the Political Economy Resource Center, which has indeed done a great deal of important and admirable work on Indian issues, especially property rights issues (including, Jonathan helpfully notes, this and this.)

All of which I basically agree with, and have written in support of myself elsewhere. But it remains true that even PERC has (as far as I can tell) said nothing about the IIM case; that Norton continues to be on the wrong side; and that there hasn't been much libertarian noise making the argument Jonathan described. I'm trying to get some noise started.

Note about the difference between alottment and real property rights, which Michael Carr also wrote in about: I didn't have space to go into this in the TNR column, but it's quite true that the kind of ownership created in 1887 was much short of freehold property. The individual Indians own the land in an incomplete sense, which is central to the problem. Not only are the resource rights held in trust by the federal government; the land cannot be sold to non-Indians. In addition, the semi-inalienable interest an Indian was given in these lands was divided equally among heirs, such that by now there are a vast number of fractional shares of the ownership of each such lot of land. This is a problem in its own right-- it means makes rational economic use ofthe land almost impossible. But it has also contributed to Interior's inability to manage the trust accounts, at the same time that it has become part of the profeered justification for trusteeship; keeping track of this complex pattern of fractional interests is absurdly complicated.

On a different note: in the TNR piece I said that Sam Donaldson and 60 Minutes had done extended segments on the Cobell case, but that otherwise television news had been almost entirely AWOL. My friend Todd Seavey reminded me that John Stossel's hour-long special "John Stossel Goes to Washington," had been intended to include a segment about the IIM accounts, but that when Stossel began questioning Bruce Babbitt about them, the then-Secretary of the Interior stormed off the set. (Therefore none of the relevant Nexis search words led me to Stossel-- in the actual event the special included only about two sentences about lost Indian money, followed by an extended on-camera "I'm going to fire whoever scheduled me to do this interview" bit from Babbitt..)

You remember Neal McCaleb, the former Assistant Secretary of the Interior for Indian Affairs I spoke so unkindly about just yesterday?

Destroyed documents.

Around the web and miscellany

Over at TAP, Richard Just has one of the best pieces on the State of the Union address. I think the following is exactly right:

President George W. Bush delivered two State of the Union
addresses last night: an unconvincing recitation of platitudes
about supply-side economics followed by a compelling -- even
grand -- articulation of America's role in the world... [I]t wasn't
just the policies of the first half of the speech that were unsatisfying --
so was the delivery, not to mention the prose itself. This was
the kind of speechmaking at which President Clinton excelled;
he made laundry lists of policy proposals come alive. Bush
doesn't have that gift... But then came Bush's transition
sentence -- "The qualities of courage and compassion that we s
trive for in America also determine our conduct abroad" -- and I
suspect that even the president's most skeptical critics would
agree that from that point on, he was masterful...It is not irrelevant
that Bush succeeded last night where Clinton had the most trouble
as a speechmaker. Clinton could make a bulleted policy list sound
inspiring, but when he tried to deal in broad themes and big visions,
his rhetoric sometimes felt flat, even empty.

I suspect that I agree with more of Bush's domestic agenda than Just does; but I agree entirely with this commentary on the style and feel of the speech. On the other hand, Just also says that Locke's

rebuttal was the finest opposition response in years to a State of
the Union... Someone should take note and put Locke on the fast
track to bigger and better things in the Democratic Party.

Locke struck me as a bland, inoffensive nice guy, giving a speech for student council president. The need to paper over Democratic divisions on the war of course hurt him. But the grandson-of-an-indentured-servant thing seemed appropriate for a personal campaign ad, not for the moment when Locke was supposed to be speaking on behalf of the party as a whole. The symbolism of having a governor speak this year was terrible. And the domestic agenda was reeeally uninspiring. Just and I watched the same SotU, but apparently not the same Democratic response.

Over at The Conspiracy: check out David Post on "the reverse tinkerbell effect." I wonder whether there's not a much more general kind of case at work in everyday market economics-- not just the specialized case of the efficient capital market hypothesis. The more people who think there's a killing to be made in x area of economic activity, the more will enter it-- gradually driving economic profits to zero. Crowdedness doesn't only apply to libraries and beaches; it applies to markets, too. That's basic to how markets work; from the system's perspective it's a feature, not a bug. It looks different from the perspective of the individual producer. And it looks very different if the market in question takes some time and preparation to enter. The more early-stage graduate students who think that there's room in the literature to make a striking contribution on a particular topic, the more books there will be trying to occupy that intellectual space 3-6 years hence, and the less of a splash any one of them will make. Kieran Healy notes that the idea of the self-defeating prophecy has a long history.

Mark Kleiman, Ted Barlow, and Kieran Healy, among others, are blogging actual empirical matters-- you know, the kind with numbers. How much does wealth (as distinct from income) contribute to the black-white education gap?

Hi there!

I’d like to offer a welcome to those visiting the site for the first time via TNR. Like many blogs, mine is a combination of writings about: stuff I can claim some expertise in (political philosphy, political science, multiculturalism, the rights of ethnic minorities, freedom of association), stuff I care passionately about (academic freedom and academic governance), stuff that I find fun (Lord of the Rings, science fiction), and stuff about which I don't necessarily know any more than any other news addict, though sometimes my poli sci/ political theory background means I have an idiosyncratic take on it (i.e. everything else).

Here's the basic story o' me.

My first TNR column is on something I can claim expertise in: the law, politics, and justice of indigenous rights, in this case the rights of American Indians. (My other writings on indigenous rights include two chapters in my book The Multiculturalism of Fear, one of which also appears in Kymlicka and Norman, eds., Citizenship in Diverse Societies; and a chapter on "Indians in Madison's Constitutional Order" in Samples, ed.,
James Madison and the Future of Limited Government.)

To expand on a few points from the column:

Trusteeship, in the case of Individual Indian Money accountholders, is supposed to refer to the straightforward fiduciary-responsibility concept. This is also true when the landowner is a tribe. But "trusteeship" also refers to something more general and amorphous as the underpinning of the federal government's relationship to tribes. Both are paternalistic in their origin. But the tribes have an interest in not doing away with the idea of a trustee relationship, since it underlies the federal government's commitment (such as it is) to act in the interest of the tribes. Back before the Eleventh Amendment turn in federalism jurisprudence, it also solidified the federal commitment to protect tribes against the states when necessary. This understanding of trusteeship-- which predates the Revolution, and can also be found in the other Anglo-settler states of Canada, Australia, and New Zealand-- is notoriously difficult to pin a precise legal meaning to. The duties it imposes aren't nearly as well-specified as the duties of an ordinary financial trustee. But a reluctance to jeopardize the idea of trusteeship has, I think, some effect on how the tribes view the Cobell litigation. If the plaintiffs were to propose terminating the trust relationship over the IIM accounts altogether (rather than placing them into a receivership with a different trustee) the tribes might be more worried still. I nonetheless think that such a termination is the right thing to do. The federal government has no business posing as the trustee of Indians' money, when it is itself the greatest threat to that money.

Another concern from the tribes' perspective-- and this is inference on my part, not based on anything that has been said in public-- is budgetary. In principle, the IIM mess should be entirely separate from other Indian affairs, just like the IIM accounts should be separate from other governmental outlays and revenues. But, politically, if the Cobell suit results in billions or tens of billions of dollars in (what looks like) new spending to compensate for past misappropriation, the separation probably won't be so clean. The squeeze will probably be put onto appropriations for other BIA functions, for tribal colleges, and for the rest of the federal government's Indian activities.

So, altogether, one wouldn't expect tribes to expend too much of their finite lobbying capital on forcing a fair, speedy, generous settlement. Tribal organizations have been supportive, and have filed amicus briefs on Cobell's side, but they just don't have much incentive to make it a top priority of their relationship with Congress or the BIA. And, as I've said, there are aspects of trusteeship and the relationship with the BIA that they're understandably more interested in protecting than the Cobell plaintiffs are.

Gale Norton has no such excuse for betraying her alleged commitment to the rights of property-owners...

Shortly after Lamberth held Assistant Secretary for Indian Affairs Neal A. McCaleb in contempt, the latter announced his retirement, complaining that "the litigation has taken first priority in too many activities, thus distracting attention from the other important goals that could provide more long-term benefits for Indian Country." As I've blogged previously, I don't have a lot of sympathy for this complaint. Coming into compliance with Interior's fiduciary obligations, and ensuring that individual Indian property-owners get the full value of their resources, would do more for Indian self-reliance than would coming up with another BIA program. Being reminded that the department wasn't fulfilling its obligations apparently took all the fun out of it.

If the lawsuit is so unpleasant and time-consuming, then Interior ought to quit dragging its feet.

UPDATE: Resigning hasn't freed McCaleb from the lawsuit entirely; he can still get in trouble for having destroyed documents.
---

I should note that a few Republicans in Congress-- including John McCain and Ben Nighthorse Campbell-- have been on the right side here, and have treated the issue seriously.

----

Some links:

Complete information on Cobell v. Norton can be found at http://www.indiantrust.com/. The Department of Justice maintains its own site on the case here.

The Harvard Project on American Indian Economic Development is an indispensable resource for information on tribal governments, and the problems tribes confront from two directions: external limits on self-government, and internal institutional failures, violations of the rule of law and separation of powers, and obstructions to economic development.

The National Council of American Indians is the most important tribal lobbying group. The Native American Rights Fund is involved in the Cobell litigation.

The BIA website "as well as the BIA mail servers have been made temporarily unavailable due to the Cobell Litigation. Please continue to check from time to time. We have no estimate on when authorization will be given to reactivate these sites." The story: at one point Interior slapped together a new computer system to handle the IIM accounts. Lamberth found that the system was woefully insecure and prone to hacking. Interior took it down-- and, in a fit of spite, stopped issuing all checks to IIM account-holders for months, saying that they couldn't do without the new computer system what they had always done without the new computer system. This was more than a year ago. I'm pretty sure that Lamberth's order didn't require BIA to take down its public webpage with contact information and the like.

UPDATE: See this follow-up post above.

Announcement time

Sometime today, my first monthly online-only column at The New Republic website will go up. Another scholar-blogger will be writing with the same frequency, offset by two weeks; but I'll let him or her reveal his or her identity in due course. UPDATE: It's up.

Around the web/ miscellany

Joseph Epstein has a lovely essay in Commentary on his teaching career.

Mickey Kaus says, of the Think Group's World Trade Center proposal:

(So what if every suicidal teen with a pilot's license is going to try to
hang his Cessna from the latticework? They can mount AA guns on
the top! It'll be quite a show.)

This reminds me of something Jonah Goldberg wrote just days after September 11. It doesn't come across so well anymore, I guess, but it stuck with me like nothing else Goldberg's ever written-- jokey but in a distinctively defiant fashion that was much needed at the time. The column as a whole is, I think, one of his best; but this sentence in particular lodged itself in my brain and replays there every time I read or think about the design of the restored site.

But if we must have a shrine or monument for
our remorse, let's put it on the 200th floor, right
next to the antiaircraft guns.

I don't, finally, agree, but it's still always the first thought in my mind when WTC questions come up.

Via Brian Doherty: Virginia Heinlein has died.

My old colleague at WBRU news (95.5 FM in Providence), Aaron Schatz, has a piece telling the Democratic presidential contenders to stop trying to be John McCain, over at the American Prospect.

Stay tuned; the first of those two big announcements I mentioned last week is coming up in the next 24 hours.

Eric Muller asks a difficult question about Korematsu, as part of his ongoing reflections about the relationship (or lack of relationship) between the internment of Japanese-Americans and events of the past year and a half.