Blogging is probably going to be light today, so I'll pose a hypothetical question that may never be answered.

First, we know that the late William Rehnquist, the former Chief Justice of the United States Supreme Court, did suffer from severe back pain for much of his career.  Suppose that during the month of December 2000, Rehnquist's back pain became so severe that, due to surgery or narcotics, he was temporarily unable to fulfill his duties as Chief Justice.

On December 8, 2000, the Florida Supreme Court ordered a statewide manual recount of all ballots cast in the Presidential election held the month before.  The Florida recount, according to some, might have taken months to complete and certify.  President Bill Clinton was scheduled to leave office on January 20, 2001.

On December 12, 2000, the Supreme Court ordered a halt to the recount, handing an effective victory along with Florida's electoral votes to George W. Bush in the still controversial case of Bush v. Gore.  The case was decided by a vote of 5 to 4, with Rehnquist in the majority.

Now, if any Justice in the majority, let's say Rehnquist, had been unable to decide the case for any reason, the vote would be 4 to 4, leaving the lower (Florida Supreme) Court's decision standing.  The recount would go on.  Let's say until March.

Which leads to another question: Who would be President on January 21, 2001?

You are armed with a copy of the United States Constitution, the most authoritative document which purports to answer this question.  And I'll submit that its answer is not at all clear.  You may use any school of legal reasoning to decide this question.  You will receive extra credit for explaining your answer in detail, whether by reference to text, history, statute, or case law (assuming that, unlike me, you can find an applicable statute or case).

Can you believe that CNN would write this?

Jewish groups and many scholars argue that starting in 1939, Germans committed genocide, when more than a million Polish Jews were massacred in the waning days of the Third Reich.

Modern-day National Socialists officially deny that a genocide took place, arguing instead that hundreds of thousands of Polish Jews and Christian Germans died in intercommunal violence around the bloody battlefields of World War II.

I can't believe it either.

Tariq Aziz has been sentenced to hang.

Not to minimize the crimes of the Ba'ath regime in Iraq, but Aziz seemed a  powerless figurehead, a guy Saddam trotted out for television because he looked like a strange, avuncular owl who spoke perfect English.  Aziz was at most a cover for the really grisly characters who sprayed chemical weapons on Kurds.

To the extent most westerners will even remember Aziz, it's as a character who used to appear on early 90s  television interview programs, much like George Plimpton.  You could tell the regime was in trouble when, for the sequel war, they replaced Aziz with Baghdad Bob.

Grandy reminded us all of how great Ultima IV was a few weeks ago.  Sadly, there was a story today about how young people can't stand the game. A professor has his students play the game as part of a class on the Art & History of Videogames. It doesn't go well.

His students complain about not getting what is going on, and don't read any of the extra materials (is there a chicken & egg thing going on with the current depressing state of game manuals?) I guess they didn't even get to the dungeons that they had to map themselves, or the silly rune language on the map. Man, if they had trouble with this, imagine Wizardry I or even the original Bard's Tale?

Sigh, kids today.

143 years ago, the leaders of the Comanche and Kiowa tribes met with William Tecumseh Sherman at Medicine Lodge Creek, Kansas. The Comanche had dominated the American plains for hundreds of years, and had terrorized the Texans whose Confederacy Sherman had done more to crush than any other man. But this was not a meeting of equals. Sherman told the Comanche they had to give up the plains, to live on a reservation in Oklahoma: "You can no more stop this than you can stop the sun or the moon. You must submit, and do the best you can."

The Comanche were led by Ten Bears, their last great war chief save Quanah Parker. This is what Ten Bears said to Sherman:

My heart is filled with joy when I see you here today, as the brooks fill with water when the snows melt in the spring.  I feel glad as the ponies do when the fresh grass starts in the beginning of the year.

My people have never first drawn a bow or fired a gun against the whites. There has been trouble between us. My young men have danced the war dance. But it was not begun by us. It was you who sent the first soldier.

Two years ago I came upon this road, following the buffalo,that my wives and children might have their cheeks plump and their bodies warm. But the soldiers fired on us. So it was upon the Canadian River. Nor have we been made to cry once only. The blue-dressed soldiers came out from the night, and for campfires they lit our lodges. Instead of hunting game they killed our braves, and the warriors of the tribe cut short their hair for the dead.

So it was in Texas. They made sorrow in our camps, and we went out like the buffalo bulls when the cows are attacked. When we found them we killed them, and their scalps hung in our lodges. The Comanches are not weak and blind, like the pups of a dog when seven days old. They are strong and far-sighted, like grown horses. We took their road and we went on it. The white women cried and our women laughed.

But there are things that you have said to me which I do not like. They were not sweet like sugar, but bitter like gourds. You have said that you want to put us on a reservation, to build us houses and to make us medicine lodges. I do not want them. I was born under the prairie, where the wind blew free and there was nothing to break the light of the sun. I was born where there were no walls and everything drew free breath. I want to die there, not within walls. I know every stream and every wood between the Rio Grande and the Arkansas River. I have hunted and lived all over that country. I live like my fathers before me and like them I live happily.

When I was in Washington the Great Father told me that all the Comanche land was ours and that no one should hinder us from living on it. So why do you ask us to leave the rivers and the sun and the wind and live in houses? Do not tell us to give up the buffalo for the sheep. The young men hear talk of this, and it makes them sad and angry. Do not speak of it more. I love to carry out the talk I heard from the Great Father. When I get goods and presents my people feel glad, since it shows that he holds us in his eye.

If the Texans had kept out of my country there might have been peace. But that which you say we must now live in is too small. The Texans have taken away the places where the grass grew thickest and the timber was best. Had we kept that, we might have done as you ask. But it is too late. The whites took the country which we loved, and we wish only to wander the prairie til we die.

Four years later Ten Bears was dead, and the Comanche were being herded to the reservation. Today there are fewer than 15,000 Comanche left.

But what Ten Bears told Sherman was as eloquent as anything ever said by a man who simply wanted to be left alone.  It's a classic of American anarchist thought, as profound as anything written by Lysander Spooner or William Lloyd Garrison.  It was an elegy delivered by a man who would not submit.

This is what Staff Sergeant Salvatore Giunta had to do to become the first living recipient of America's highest military award since Vietnam:

In the most dangerous valley of the most rugged corner of eastern Afghanistan, a small rifle team of airborne soldiers fell into an insurgent ambush, a coordinated attack from three sides.

A young Army specialist, Salvatore A. Giunta, took a bullet to the chest, but was saved by the heavy plates of his body armor. Shaking off the punch from the round, he jumped up and pulled two wounded soldiers to safety, grabbed hand grenades and ran up the trail to where his squad mates had been patrolling.

There, he saw a chilling image: Two fighters hauling one of his American comrades into the forest. Specialist Giunta hurled his grenades and emptied the clip in his automatic rifle, forcing the enemy to drop the wounded soldier. Still taking fire, he provided cover and comfort to his mortally wounded teammate until help arrived.

While I agree with a recent Ninth Circuit decision holding the Stolen Valor Act unconstitutional, I understand the impulse that led lawmakers to pass that act.  Those who would attempt to steal the accomplishments of a man like Sergeant Giunta by falsely claiming such a medal (they'll always fail) should be named in every corner of the internet.

I find it equally distasteful that a videogame manufacturer trades on the name of the medal, to sell a game that features a highly unrealistic picture of war as essentially an action film.

Paul Tibbets was a hero who helped to bring World War II to an end.  Tibbets commanded the bomber Enola Gay, which dropped the "Little Boy" atomic bomb over Hiroshima Japan.  Americans should honor Paul Tibbets, because his service on August 6, 1945 likely saved a million American soldiers from maiming or death.

Tibbets also saved countless Japanese, more than a million, who would have died fighting to support a fascist government against vastly superior American and Soviet forces had an amphibious invasion been necessary.  For the survivors a post-invasion Japan, like Germany and Korea, would have been divided into American and Soviet spheres of influence, hardening into separate governments, backed or ruled by foreign troops facing one another over a DMZ.   The Soviet sphere would have contained a Gulag.  The American sphere might have developed a democratic government like that of West Germany, or it might have been ruled by a military oligarchy as South Korea was until the 1970s.  Either way, the survivors, north and south, would have faced the prospect of living on divided land with nuclear weapons pointed at them in each direction.

So we should honor and respect Paul Tibbets.  His son James Tibbets, may be another story.

The son of the U.S. Air Force pilot who dropped the first atomic bomb in the history of warfare says the Obama administration's decision to send a U.S. delegation to a ceremony in Japan to mark the 65th anniversary of the attack on Hiroshima is an "unsaid apology" and appears to be an attempt to "rewrite history."

James Tibbets, son of Brig. Gen. Paul W. Tibbets, Jr., says Friday's visit to Hiroshima by U.S. Ambassador John Roos is an act of contrition that his late father would never have approved.

"It's an unsaid apology," Tibbets, 66, told FoxNews.com from his home in Georgiana, Ala. "Why wouldn't it be?  Why would [Roos] go? It doesn't make any sense.

"I know it's the anniversary, but I don't know what the hell they're trying to do. It needs to be left alone. The war is over."

With respect to Mr. Tibbets, the war isn't over.  Not for the people who survived the atomic attacks on Hiroshima and Nagasaki, which only happened 65 years ago.  Nor for their families, who've lost parents and relatives to cancer and may carry the scars themselves, in their own genetic codes.  Nor for Japan, which still carries scars from the attacks.

Were the scars deserved?  Well, if we believe in collective guilt, sure.  Japan, as a nation, surely asked for August 6, 1945 on December 7, 1941.

But America isn't a nation founded on notions like collective guilt and punishment.  The American ideal, at least the one to which I subscribe, is an individualistic one.  People are judged on their own merits.  We don't punish the families of the guilty.  We don't brand them as "subversive elements" or gloat when tragedy befalls them.  Similarly, with a few exceptions, we don't give special privilege to the families of the powerful and successful.  We are not a collective.  We do not enshrine class into law.

That would be un-American.

And so, to me, it seems proper that we send a representative to Japan to mark a tragedy in living Japanese history, even if it was a tragedy of the Japanese government's making.   That government is gone.  Its leaders died on the gallows. Japan is not an enemy nation.  65 years after Hiroshima, Japan is a friend to America.

To memorialize a tragedy is not to apologize for wrongdoing.  Another American virtue, at least in the America where I live, is that we are a forgiving people.  Old enemies, such as Britain, for over a century the greatest threat to this country, become friends.  As has Japan.  As have almost almost a third of the American population.

If you visit the town of Gettysburg Pennsylvania, and drive a little distance into the battlefield, you will see many monuments.  A number of them look like this one:

There is no doubt that soldiers who fought under the flags of North Carolina and the Confederacy posed a greater existential threat to the United States than the soldiers of imperial Japan ever did.  Yet the field of battle on which they were beaten contains multiple monuments to North Carolina's war dead, as well as to those of other Confederate states.  And visitors to the Gettysburg cemetery and battlefield show those dead as much respect as they do to Union dead, even when the visitors come from Wisconsin or Massachusetts.

Similarly, though Japan isn't part of the United States, we should respect the innocent who died or were ruined at Hiroshima, for innocent they were.  It isn't an apology to respect the dead, and one of the ways that governments show respect is to send diplomats to memorial ceremonies.

James Tibbets is an American, and he has the right to speak his mind, but he didn't fight against Japan any more than I did.  His descent from a famous man gives him no moral authority.  He is not a hereditary war hero.  His father's courage and service won't be lessened one bit by a diplomatic visit to a ceremony for the dead.

And while I can excuse James Tibbets for his strong feelings about Hiroshima, for Fox News to use him in the pursuit of its own political war against a President who is merely following the historic American practice of reaching out to defeated enemies, who are now friends, is shameful.

That's about how cool this is.

Have at it.

Damn that Stalin!  He forced historian Orlando Figes to write sock-puppet reviews trashing books written by other authors.

One of Britain's leading historians, Orlando Figes, is to pay damages and costs to two rivals who launched a libel case after a row erupted over fake reviews posted on the Amazon website.

The award-winning Figes, professor of history at Birkbeck, University of London, admitted in April to posting critical reviews of books by a number of authors, including fellow historians Rachel Polonsky and Robert Service, praising his own work and rubbishing that of his rivals.

Initially, Figes denied the allegations, threatening legal action against colleagues, journals and newspapers that suggested he had written the reviews. …

Figes's lawyer, David Price, contacted the newspaper, demanding a "corrective publication", and suggesting that his client would be entitled to damages. Hours later Price issued a new statement, which said Figes's wife, the barrister Stephanie Palmer, had posted the comments, and that Figes himself had "only just found out about this, this evening".

In fact, Figes' cover story that his wife had written the reviews, some of which appear to have been connected to the suspiciously named "Orlando-Birkbeck" account, was also false.  Figes was later forced (by whom?) to admit that he'd written the reviews himself, and that he'd lied to his lawyer, not once ("I didn't write this! Sue the bastards!"), but twice. ("My wife did it!  I'm innocent!")

Which makes Figes' last line of defense, that he was driven to malign other historians by the stress of meeting victims of Stalin's Gulag, rather suspicious.

According to Dr. Rachel Polonsky, one of Figes' victims:

"I understand that he is claiming that he has been traumatised by the research he did with victims of the Russian gulags which caused him to behave like this. I think it is horrific to use one of the greatest acts of criminality in history to excuse his bad behaviour. In any case he has been behaving like this for years beforehand."

Walter Olson, from whom I got this story, wonders whether Figes would have been forced to pay damages in an American court.  Probably not.  But consider:  Figes' defense of his conduct, that he was in effect driven to sockpuppet and defame by Stalin's crimes, seems unlikely, perhaps even untrue.  Stalin committed appalling crimes, but are we to believe that Stalin drove a historian to destroy his career almost 57 years after the tyrant's death?

Under Russian law, even the dead (or more properly, their estates) may file defamation actions.  Joseph Stalin, in particular, has a litigious family.

It's possible Orlando Figes will, in the end, have to answer not just to Rachel Polonsky and Robert Service, and not just to his wife (to whom he probably answers every hellish night), but to Stalin himself.

He died in bed of old age, something Richard Nixon, who put Schorr on the famous "enemies list," wouldn't have wanted.

I didn't agree with Schorr on much of anything.  He was a fossilized New Deal liberal who was probably amazed that the computer keyboard his interns used to type his NPR commentary didn't require ribbon replacement.  But he never trusted the government, whether the White House occupant had an R or a D by his name.  And his voice was an audio definition of the word "avuncular."

There probably isn't much muck in heaven, but if there is, Schorr will no doubt enjoy raking it up.

Thanks to Dave Weigel, who is presently homeless, for the tip.

Polish President Lech Kaczynski and many high officials of the Polish government have been killed in a plane crash outside the city of Smolensk, in western Russia.  Perversely, President Kaczynski was on his way to a memorial for 15,000 Polish soldiers killed by order of Joseph Stalin in the Katyn forest.

We have a few readers from Poland, and would like to express our sympathy to them on this awful loss.

Many lawyers know of the seven line, seven sentence, seven paragraph apology letter:

Dear Mr. Slimeball, Esq.:

For some time you and I have had strenuous disagreements concerning this case.

Understanding that reasonable people may disagree, I wish to bury the hatchet.

Considering these difficulties, I am glad that we remain friends.

Knowing that you accept this apology will mean much to me.

Your acknowledgment of this letter would be greatly appreciated.

Opening a new chapter in our relationship is my fondest wish.

Until we next meet, I remain,

Yours very truly,

Patrick ________

I thought that was the best apology a man could make, until today.

Continue Reading »

Years ago, as the Soviet Union's network of puppet satellites in eastern Europe was crumbling, the purest avatar of communism who ever lived pointed out that western democracies are hypocrites:

[Dead and deified North Korean dictator] Kim Il-sung said in a [1990] New Year's address that Seoul had built a massive concrete wall to divide the two states, which are technically still at war.

The wall has been described by North Korean press as between five and eight meters high.  It is made of concrete.  It divides the Korean peninsula.  It was built by reactionary South Korean fascists in the 1970s, and continues, in 2009, to frustrate the ambition of the Korean people for peaceful reunification.

And yet it's hard to find via satellite imagery.  Perhaps because it doesn't exist. Yet the North Korean press continues, every year at this time, to demand that it be destroyed.

Of course, the wall may exist.  I could be wrong, and the Great Leader Kim Il-Sung, the eternal president of Korea, could be right.  My brother-in-law, who serves in Korea, hasn't mentioned the wall.  But what does he know?  He isn't Korean.  He doesn't even speak Korean.  Or perhaps he does, and he's just fooling me.  Perhaps he's one of THEM.

You know … THEM.  They're the same people who keep you from being happy.  The same people who built that wall.

Via Colin Samuels, who is probably one of THEM, too.

Found a quirky story over the break. About a time when the Communist Party USA had a sportswriter. His name was Lester Rodney, and he was an amazing man. Mr. Rodney was one of the earliest and strongest voices calling for the integration of major league baseball.

Writing for the Daily Worker (the organ of the Communist Party in the US) Mr. Rodney constantly browbeat baseball commissioner Landis to bring black players into the major leagues. Here's a sample of his writing:

“You, the self-proclaimed ‘Czar’ of baseball, are the man responsible for keeping Jim Crow in our National Pastime. You are the one refusing to say the word which would do more to justify baseball’s existence in this year of war than any other single thing.”

Imagine any sports league in this day and age credentialing a reporter from the Communist Party? It's hard to believe. It's also hard to imagine that the press and the people acknowledged the efforts of the Communists here.

Mr. Rodney died last week, at the age of 98. He really led an extraordinary life.

That appears to be the logic the National Park Service is following in placing a bust of Stalin at the national D-Day Memorial:

William McIntosh, president of the memorial in Bedford, Va., insisted "the function of this sculpture is not to honor Stalin."

According to McIntosh, it's an educational sculpture.  Kids coming to the memorial will learn all about the six million dead at Stalin's hands in the Ukrainian famine of 1933.

And Stalin's forced deportation of every man, woman, and child in Chechnya to Siberia.

And the Gulag prison system.

And the thousands who died building the White Sea Canal, which led from nowhere to the arctic circle.

And the Katyn forest massacre.

And the genocide of the Volga Germans.

And the show trials of 1937.

Or maybe they won't.  It's not as though Ukrainian and Chechen Americans have a powerful political lobby anyway.