It’s a common phrase these days: “Activist Judges.” What does it mean? Conservative activists and President Bush have defined it, at least in part, as judges that make law, as opposed to interpreting it. Sounds good so far, but to get to the heart of it, we should examine the definition of “make law.” How do judges make law? Prof. Paul Gewirtz and Chad Golder of Yale Law defined it in the Times as striking down a law passed by Congress. That would fit the definition of “legislating from the bench” pretty well.

Their research finds an interesting conclusion. Here are the percentage of times since 1994 that a particular justice invalidated a Congressional act of the 64 provisions that have made it in front of them.

Thomas: 65.63%
Kennedy: 64.06%
Scalia: 56.25%
Rehnquist: 46.88%
O’Connor: 46.77%
Souter: 42.19%
Stevens: 39.34%
Ginsburg: 39.06%
Breyer: 28.13%

They conclude:

One conclusion our data suggests is that those justices often considered more ”liberal” — Justices Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens — vote least frequently to overturn Congressional statutes, while those often labeled ”conservative” vote more frequently to do so. At least by this measure (others are possible, of course), the latter group is the most activist.

Of course, the definition is perhaps a bit narrow. The hyper-libertarian/conservative/federalist Volokhians would be more concerned about the court stepping into matters better left to the state. It might be interesting to see a tally of the times each justice voted to invalidate a state or local provision rather than just acts of Congress. I suspect the results will be less stark.

In the end, I guess, Atrios gets the definition right:

Judicial Activism usually means nothing more than “Judgifying I don’t like.” In other words, it means nothing.

Definitely.

(Times article found via Atrios)

Just go read it — I had the same reaction when I started getting those emails…

I’m no lawyer (though I like to play one on the Internet), but I wonder if Google’s blog posting today on Google Video will create (or draw attention to) any legal exposure for them. They highlight the awesome video of those two Chinese kids singing and another cool video of a guy juggling a soccer ball in Amsterdam.

Both of these clips feature nearly the complete audio for a copyrighted song. Google is hosting the video on their site. Isn’t that bad for Google?

I think Google Video is a great idea, and I’m all for it. In the current IP climate, though, aren’t we going to encounter copyright issues? And wouldn’t the recording industry have a legitimate point in this case?

What’s the answer? Compulsory licensing? Who pays then, Google or the video producer?

That would be a good blog, right? Made for TV Politics? A blog that just documents all the stupid TV and photo ops that politicians set up. All parties, no particular bent… could a blogger even keep up?

Take your guess. A celebrity told me that tonight over dinner.

I’ve gotten access to the blo.gs ping cloud finally and am hoping to learn some things from the data. Some quick background: most blogging packages have the capability of notifying a remote server every time they are updated. One such service is the blo.gs service which is now owned by Yahoo. blo.gs forwards the pings onto any listeners connected to the ping cloud, hence my interest. Search engines like Technorati or PubSub, for example, all leverage the various services. They are even all trying to work together to share pings amongst each other via an effort called FeedMesh.

I finally wrote a simple logger to connect to the cloud and write out the pings to disk. It’s a goofy little 50 line perl program that basically just dumps the strings to a file while appending the local time to the ping tags. I’m dropping the pings to a file so that the service I write to process and index the pings is decoupled from the reading of pings. It would be good, for example, if one didn’t slow down the other. Of course, I’m running all of this on my iMac which is doing other stuff, so we’ll see how that works out. Might be time to buy a Linux box.

There are a lot of pings coming in each second. The first minute I was connected I got 980 pings and that’s at around 1:30AM ET when only dorks like me are blogging. I’ve learned quite a bit already, even though I’ve only started to peruse the data. There’s a lot of SPAM blogs (splogs) for one thing. Most surprising to me, though, is that non-blog services ping the cloud, too. For example, Flickr, Craigslist, Topix.net, and a number of other services are pinging the service.

So, now the fun comes. How do you handle then crawl dozens of pings per second? How do you identify spam so as to avoid recording them entirely? Ping-O-Matic has recorded days where they averaged 69+ pings per second. And that’s assuming that pings were spread evenly throughout the 24 hour period… not likely, but remotely possible given the global scale of things. So, it’s likely that the peak periods during the day are far above 70-100 pings per second, especially on heavy blogging days.

I’ll leave this up and see what I get over the next few days. I might even write a more robust client. This is going to be a neat experiment.

(and, I get to see how long it takes before this post shows up )

Left the Late Night Players show tonight and walked down into the subway to catch the 1 uptown to my apartment. But wait. Something’s wrong. The empty subway track has a big yellow box on it. Guys are staring out of the yellow box at me. I freeze. Something is awry. Four large men in black police-style jackets are standing by the fare collector’s box. “Let’s take a taxi?” “Sure, but I want to know what’s going on.” I approach the men and ask what’s happening. Nonchalantly, “just a routine collection. We’re picking up the money.” That’s right, Wesley Snipes and Woody Harrelson fans. I saw the money train.

I don’t have much to say about this, but the speculation seems right on the mark to me: a soldier was not only told to stop blogging, but seems to have been told to apologize with some very specific language. “Oceania has always been at war with Eastasia” indeed.

A cat owned by a family in Wisconsin took a trip to France by herself. That’s just nuts… and I’m not sure what we would do if our cats ended up in another country. Luckily, they’re not outdoor cats so it’s even more unlikely than it otherwise would be.

For those fans of Trader Joes who can’t get enough about the grocer and their products, I’ve found the blog for you: Tracking Trader Joes. The blog covers the good and the bad, from product reviews to recalls of products. The site says it’s an independent blog unaffiliated with TJs and they’ve got good information. It’s the first place I found online that has the opening date of the new West Hartford location (Nov. 5th for those of you keeping track), and it seems to be run by a fellow Connecticution.

I’m looking forward to the new TJs opening up. I miss the selection there which was sooo much better than the local Wild Oats we have here. Oh, and in an interesting development, a Whole Foods store is opening up within walking distance (a long walk) from our house. I’m looking forward to next summer, maybe walking over there on the weekends to grab groceries. Of course, it’s in suburban CT, which means they have parking and easy access to the roads (assuming some of the Blue Back Sq. construction finishes up soon.)

For the third time in the last ten years, an ugly threat has come over the horizon. It threatens to destroy the world as we know it.

Most of you have probably heard the Miers nomination has been withdrawn. Unfortunately, it looks like it was withdrawn for what I think are the wrong reasons. Social conservatives balked at her lack of zealotry on the abortion issue. Other conservative groups were concerned the lack of an identifiable judicial or governing philosophy. What’s interesting in all of the different reasons cited by various groups for opposing her nomination, not one comment is made by anyone about why Bush would’ve nominated someone so universally reviled. Wouldn’t answering that question give us more insight than anything that happens in the almost farcical confirmation hearings?

The ends don’t justify the means because the means have consequences. Whether it’s fighting the war on terror or trying to “improve” education, the Bush administration has chosen very peculiar paths to get where they are. The choices Bush has made obviously will affect his legacy. What will be that legacy? Dan Gillmor suggests one:

Abortion was never the issue that mattered to me. I take it for granted that Roe v. Wade will be overturned by the court as Bush and company remake it. Some state governments will ban it afterward; most will keep it legal.

I was always more worried about the above-the-law question — the insistence by this administration that it can make up new laws when it comes to people it claims to be terrorism suspects. What did Miers do in Bush’s government, which basically claims that the president or his agent can lock any of us up indefinitely and without access to a lawyer?

She was part of the government that has asserted dictatorial authority. That is more scary than her right-wing views on abortion, by far.

I also think that progressive Americans (as well as pragmatic Americans) that want sensible policies would do better than focusing on the abortion issue. The court is going to be pro-business to a fault. How they reinterpret the roles of the branches of our government will probably remake our country in several ways. More than the social issues, this interpretation will be the legacy of this administration and the Roberts court. At best, they’ll be a passive court, deferring to the other branches in all but the most obviously constitutional cases. The worst case is real judicial activism, not the straw man that the right wing throws up all the time. Things like Bush v. Gore which was a travesty regardless of whether you liked the outcome or not.

I’m really worried that left wing folks and progressives are missing the boat on convincing those of us closer to the center that these issues are serious. For example, Atrios, who has a sizable reach among progressive and left wing activists in addition to the typical Democratic fold, only comments so far as to misrepresent Ann Coulter’s gloating on CNN. There are so many good examples of how social conservatives are hoping for judicial activists that he didn’t need to misrepresent Coulter. Don’t get me wrong, I think she’s a zealot and horribly unreasonable and unethical in her own writing. That still doesn’t excuse getting her objections to the nominee wrong. Especially when, for once, she’s not completely off-the-wall bonkers.

Update: I edited my post as it was almost incoherent in places.

I’m working on a new system to pass on interesting links that will fold into the regular site as a regular post. I didn’t like the del.icio.us daily blog post came at a fixed time of day, didn’t like the sidebar, so I’m doing it manually for now. The new system will allow all the writers here to post into it with one click just like del.icio.us.

So, here are the links:

• Here is the crime in outing of CIA agent — an editorial by Gary Hart in the Denver Post. Get to the end, or read Atrios’s summary.
• Bank of America: Keep the Change — an interesting program to help you save money while helping you use your debit card more. Cool. (via kottke.org)
• News.com.com.com.com: Razr to Nano, when design matters — News.com has photos of some of the cool gadgets out this year.

ESPN.com is carrying Sheryl Swoopes’ — what should I call it? — announcement, I guess, that she’s gay. The article is in Swoopes’ own words and it’s yet another interesting look into the personal decision process that gays have to go through when choosing to come out. Beyond that, though, my original reaction is, “Oh, ok.” I filed it away as a bit of trivia, and moved on.

I don’t mean to trivialize her decision or the pain or process she had to go through to come out. My point is that I think we’re just at a point that unless their sexuality contradicts something about their public persona, well, it’s not news. So, for example, if a hard core Republican and Christian conservative comes out it’s big news. If Anne Heche decides she’s really bisexual after being very loud and proud about being a lesbian, it’s news. I guess I should add “to me” when I’m talking about this. But Sheryl Swoopes… her abilities and my perception of her has nothing to do with her sexuality in the same way that I don’t care that she’s a mom or a divorcee or lives wherever she does. So, I’m happy for her, but I’m not really going to linger on that story like I would something else.

Jim Rome just took Swoopes to task on his show about this statement:

Male athletes of my caliber probably feel like they have a lot more to lose than gain. I don’t agree with that.

He doesn’t believe that this is true, and he’s probably right from his perspective. Professionally, it’s probably very hard for a male athlete to enjoy the same professional life if he were to come out. Keep in mind, the male equivalent to Swoopes would be Shaq, Kobe, Iverson, or one of that tier of guys. Life would probably be different (and get pretty ugly) if someone with that visibility and those endorsement deals came out. I still think Rome missed Swoopes’ point, though, which was about the personal, not the professional:

To me, the most important thing is happiness. I could have all the endorsements and all the money in the world, but if I’m not happy with who I am, that other stuff is not going to make me happy either. I know I’ve got to deal with the consequences of coming out, but I feel like I’ll be able to be free.

To be me.

Good for her.

So eerily funny