Carnival #115

Between his busy travel schedule and his busier split between two blogs, Ben Keeler found time to compile and post Carnival #115. He may be feeling over a hundred years old about now.

Surf and enjoy.

Elephant Wars: Nasty, Brutish and Fat

How evil is Alex Arshinkoff? So evil hi can screw up a perfectly good case of Dem Schadenfreude. Ben Keeler reports of Alex's new low:

On Tuesday, Central Committee members all received a direct mailer. The piece in question stated that Arshinkoff ally and Ohio House member John Widowfield had introduced a bill part of which included that a section of Route 8 would be renamed for two soldiers who died in Iraq. The mailer falsely states, among many untruths, that the bill is being held up in the Ohio Senate by Kevin Coughlin. . . . Mr. Larry Lange has a new letter which he wants out for people to view. It can be seen here via PDF. Widowfield and Don Robart were at Lange's house, a man who lost his son overseas, until 11:30 PM Tuesday pleading with him to not write the second letter which corrects the record. Disgusting. The letter from Lange reminds people what this was all supposed to be about - honoring two fallen heroes - not politics. And most certainly not the Summit County GOP race.

Excuse me, I just threw up in my mouth a little.

The prevailing wisdom is that Alex has the votes. This is based both on the counts and on the fact that TeamCoughlin is arguing about the rules. As Ed Esposito says, the side that is arguing about the rules usually is behind. It will be pretty amazing if this latest stunt snatches defeat from the jaws of victory.

And if Alex prevails, he's pretty much guaranteed that the rift in the party cannot be bridged.

Jay-Z Has LeBron's Back

Via TNR's The Spine, we learn from Vulture that uber-mogul Jay-Z has cut a quick diss about the LeBron James/DeShawn Stevenson spat:

It all started when Stevenson started talking jive about Jay-Z’s main man LeBron James, whose Cavaliers are currently taking on the Wizards in a first-round playoff series. LeBron responded that such a move was like Soulja Boy taking on Jay-Z, which prompted Stevenson to invite Mr. Boy himself to game three of the series in D.C. Jay then responded with the track, which was played Friday in a D.C. club and hit the Internet yesterday.

You can find it here on Kanye West's blog.

By the way, the fact that New York-based Jay Z is boys with LeBron and cut the track and included the lines:

[censored] he's overrated?
If anything they underpaid him

Constitutes Exhibit 537438 proving that LeBron will be gone when his contract is up.

Blogwatch Blogger Leaving Ohio dot com

BJ retirees posted today that Val Pipps, a driving force behind much of the Beacon Journals' web presence at ohio.com and the creator of Blogwatch, is leaving to teach full time at Akron U. From the "intercepted memo:"

Val Pipps has decided to become a full-time teacher of communications at the University of Akron beginning with the fall 2008 semester.

* * *

Val has been a tireless advocate for Ohio.com in general and breaking news on the web site in particular. From the time Val rejoined the newsroom in November 2006 until March, breaking news grew from 205,000 page views a month to 416,000 in March. He also was a key person in moving Ohio.com from McClatchy to its new platform last summer.

The Blogwatch page is currently empty and, per my RSS reader, hasn't been updated since April 2, though a banner for it still sits on the sidebar of the Ohio Politics page. It's not clear whether anyone will take over.

The loss of Blogwatch is of minor consequence. But if Pipps is as important to ohio.com as the memo suggests, the Beacon had better find someone with his vision and savvy to take over. As of now ohio.com is getting overshadowed by AkronNewsNow. If the Beacon cannot continue to grow its internet presence, it will grow increasingly irrelevant.

The Supreme Court's Voter ID Decision: Roundup and Initial Thoughts

The Supreme Court issued its decision in the voter ID case yesterday. Crawford v. Marion County Board of Elections challenged Indiana's voter ID law. The Court upheld the law in a 6-3 decision, though it was more of a 3-3-3 decision. The lead opinion is authored by Stevens, with Kennedy and the Chief Justice joining. Scalia writes an opinion concurring in the judgment and advocating a far more restrictive rule. He is joined by Alito and Thomas. Ginsberg joins Souter's dissent and Breyer dissents separately.

You can get a pdf of the case here.

Some reactions from around the blawgosphere. Lyle Dennison gives a pretty dense assessment on SCOTUS. Probably difficult for non-lawyers. Election law prof Rick Hasen who authored and amicus brief offers a more user-friendly breakdown.

Jack Balkin rails against the Court's enabling of partisan jiggering of the voting process:

One of the most famous ideas in constitutional law is the idea taken from the Carolene Products decision: courts should closely scrutinize laws when government officials try to skew the rules of political competition to keep their party in power. It's hard to get better evidence of a concerted attempt to fix the voting rules on behalf of a particular party than in this case. I guess we would need a speech on the floor by the majority leader saying "This is designed to screw voters most likely to vote Democrat and throw us out of office." Indeed, even if there was such a speech, it's not clear that it would make a difference to the plurality's new rule. The rule of the case, apparently, is that there are no returns for a Carolene Products defect.

Georgetown prof. Marty Lederman gives a blistering assessment of the paucity of evidence proving the voter fraud problem the law supposedly prevents:

For the first proposition, what does the opinion cite? Only this: An anecdote about in-person voter impersonation allegedly orchestrated by Boss Tweed in 1868. And for the second -- occasional "recent" examples? Justice Stevens tips his hat to the Brennan Center's showing that "much of" the evidence of such fraud "was actually absentee ballot fraud or voter registration fraud." Nevertheless, he states that "there remain scattered instances of in-person voter fraud." The evidence for this? That in the 2004 Washington gubernatorial election, a partial investigation confirmed that one voter committed in-person voting fraud.

So we have an anecdote about Boss Tweed, and a single modern voter engaged in the sort of fraud at issue here. If that's the best case that can be made in favor of the law . . . .

While the Court found against the plaintiffs in this case, they did not resolve all issues with voter ID laws. As noted before, this case involved a facial challenge to the Indiana law. If voter protection activists can find evidence that an ID law is being applied in a discriminatory manner, the combination of the court plurality (or at least 2/3 of it) and the dissent might find against the state.

Because Ohio is such an important state for voter protection, I'll be following up on this. My goal will be an "activists guide" over multiple parts, trying to break down the decision(s) and discuss
how activists should work at making the next case more solid.

Buckeye RINO and the Well Curve

Daniel Jack Williamson gave notice today that he is starting the blog Buckeye RINO. Dan has posted on group blogs, notably Word of Mouth and the now-defunct Right Angle. As he explains he's been blogging on Yahoo 360 but is now has his own real estate in the political blogosphere.

This is a development that should be applauded by people of all stripes who want good political discourse above all else. First off, Dan is a good blogger and a good guy.

Moreover, Buckeye RINO promises to fill in some of the gaps in the politisphere. At this moment in time the distribution of political blogs follows an inverted bell curve or a well curve. We have disproportionate posting on either end of the spectrum but relatively little in the middle where most Americans would plot their politics. Here in Ohio moderates do somewhat better than average, but the blogosphere as a whole still tends to be bipolar.

Dan is calling his blog Buckeye RINO because, as he says, he's not on the far right. His blog promises to be like a Midwest version It's My Party, Too. More importantly, he has always operated outside of strict partisanship. Check out, for example, this post on Rev. Wright and Obama that challenges current Republican orthodoxy on the subject. Too often reading blogs has the feel of reading a half-dozen rewrites of a party or activist group press release. Again, in Ohio we have more than our share of original thinkers, but we can always use more.

So surf over and welcome Dan to the blogsphere. I look forward to reading.

The Pretentious Books Meme

A meme going around has bloggers offering personal report cards on the "pretentious books" list The list is the 106 books most frequently listed at "unread" by people who catalog their books at LibraryThing. I first found this on Pharyngula. You can trace his links back if you wish.

The books I've finished are in green. Those I started and put down/was only assigned parts of/read the Cliff's Notes are in red.

* Jonathan Strange & Mr Norrell
* Anna Karenina
* Crime and Punishment
* Catch-22
* One Hundred Years of Solitude
* Wuthering Heights
* The Silmarillion (in a lifetime of Tolkien fandom, I've met exactly one person who has made it all the way through this one.)
* Life of Pi : a novel
* The Name of the Rose
* Don Quixote
* Moby Dick
* Ulysses
* Madame Bovary
* The Odyssey
* Pride and Prejudice
* Jane Eyre
* The Tale of Two Cities
* The Brothers Karamazov
* Guns, Germs, and Steel: the fates of human societies
* War and Peace
* Vanity Fair
* The Time Traveler’s Wife
* The Iliad
* Emma
* The Blind Assassin
* The Kite Runner
* Mrs. Dalloway (I wonder how many other people started it after reading The Hours, then said, "Nah."
* Great Expectations
* American Gods
* A Heartbreaking Work of Staggering Genius (This is one I'm genuinely proud of giving up on. A Grating Work of Facile Foster Wallace Imitation)
* Atlas Shrugged
* Reading Lolita in Tehran : a memoir in books
* Memoirs of a Geisha
* Middlesex
* Quicksilver
* Wicked : the life and times of the wicked witch of the West
* The Canterbury tales
* The Historian : a novel
* A Portrait of the Artist as a Young Man
* Love in the Time of Cholera
* Brave New world
* The Fountainhead
* Foucault’s Pendulum (If you are intrigued by some of the history mined by The DaVinci Code but cannot abide Dan Brown's hackery, this is the book for you)
* Middlemarch
* Frankenstein
* The Count of Monte Cristo
* Dracula
* A Clockwork Orange
* Anansi Boys
* The Once and Future King
* The Grapes of Wrath
* The Poisonwood Bible : a novel
* 1984
* Angels & Demons
* The Inferno
* The Satanic Verses
* Sense and Sensibility
* The Picture of Dorian Gray
* Mansfield Park
* One Flew Over the Cuckoo’s Nest
* To the Lighthouse
* Tess of the D’Urbervilles
* Oliver Twist
* Gulliver’s Travels
* Les Misérables
* The Corrections
* The Amazing Adventures of Kavalier and Clay
* The Curious Incident of the Dog in the Night-Time
* Dune
* The Prince
* The Sound and the Fury
* Angela’s Ashes : a memoir
* The God of Small Things
* A People’s History of the United States : 1492-present
* Cryptonomicon
* Neverwhere
* A Confederacy of Dunces
* A Short History of Nearly Everything
* Dubliners
* The Unbearable Lightness of Being
* Beloved
* Slaughterhouse-five
* The Scarlet Letter (Every 11th grade in my high school was assigned it. Maybe ten finished it.)
* Eats, Shoots & Leaves
* The Mists of Avalon
* Oryx and Crake : a novel
* Collapse : how societies choose to fail or succeed
* Cloud Atlas
* The Confusion
* Lolita
* Persuasion
* Northanger Abbey
* The Catcher in the Rye
* On the Road
* The Hunchback of Notre Dame
* Freakonomics : a rogue economist explores the hidden side of everything
* Zen and the Art of Motorcycle Maintenance : an inquiry into values
* The Aeneid
* Watership Down
* Gravity’s Rainbow
* The Hobbit
* In Cold Blood : a true account of a multiple murder and its consequences
* White Teeth
* Treasure Island
* David Copperfield
* The Three Musketeers

Surprise number one is what's not here. I expected to see Infinite Jest, but no. Also no Don DiLillo or Leon Uris. And if this list was compiled twenty years ago, now doubt A Brief History of Time would rank high.

Personally, it's amazing how little red is on my personal list, given that I excel at starting but not finishing books.

This is being billed as a meme, but without tagging. I'll do the same.

What's the Matter with Florida?

Isn't Florida supposed to be a purple, moderate swing state? Then why is the Florida legislature considering a series of regressive measures seemingly aimed and boring holes into the wall between church and state? Consider:

• The legislature is currently debating a billthat will effect the teaching of evolution. (though exactly how depends on the final product.


• This fall Floridians will vote on two constitutional amendments that will allow the state to fund religious schools with vouchers.

But worst of all is a serious proposal to create the specialty license plate depicted at right. What's more the fee for the plate will benefit the Christian education and advocacy group Faith in Teaching. (And by the way, if we can ever stop the media from acquiescing to the fraudulent label "faith based" for enterprises that are patently Christian-based, it will be a good day.)

For Constitutional background, check out this piece by Dahlia Lithwick outlining the legal issues and this discussion of standing in the comments on Religion Clause. I'll be back to flesh these out tonight.

Funny, Without Being Sexist

MediaBistro ran a caption contest for this photo:



The winner:"Sen. Hillary Clinton (D-New York) observes her chances for becoming the Democratic nominee for president."

Fear. Loathing and Gender on the Campaign Trail

If you haven't been following, we've had quite the discussion on WLST, Plunderbund, Glass City and here about this month's cover of The New Republic.

The discussion has, in the main, been unsatisfying. Eric and I have pointed out grave dangers with overusing the label "misogyny" and with equating criticisms of Hillary with hatred of women. Folks on the other side (some who are good friends of mine) have refused to acknowledge those dangers much less confront them. Instead the argument boils down to "You're a man so your arguments don't count."

That's one bit of useful consciousness raising. I'm reminded what it is to be subject to a double standard.

I agree that sometimes the normal rough-and-tumble of American politics has crossed the line in attacks on both Hillary and Barack, and will even go so far as to say I've seen more sexist¹ commentary from Barack supporters than racist commentary from Hillary supporters²

At the same time, it's really important that we not conflate all criticism of Hillary with sexism. Like all Presidential candidates, Hillary has flaws. Some of her very real character flaws also touch on gender stereotypes, but that shouldn't be a basis for disallowing comment on them. For example, one reason the charge that she is ruthlessly, stop-at-nothing, bend-the-rules ambitious is a long record of stopping at nothing and bending the rules on the part of both her and her husband.

To illustrate, lets' look at this hypothetical from my comments section:

Now, what if the shoe was on your foot? What if the cover was of a stay at home dad, what if the cover was a photo of YOU as a stay at home dad and instead of capturing you in the 99.9% of the time where you are your wonderful self, what if the photo they chose for the article was you in an unflattering circumstance (most likely taken out of context) that illustrated the stereotype that only women can raise children and men were unfit care providers. Maybe you would be a little more critical of the magazines intentions and would not so eagerly dismiss the charge that the cover was picked soley to garner attention and lacked any journalistic value.

To review the initial controversy, TNR runs a story about the dysfunction in the Hillary campaign. The implication of the article is that Hillary can't run her campaign staff and as a result the campaign as a whole appears schizophrenic. That point is was the cover was illustrating.

It's hard to imagine an illustration of that point -- photo or cartoon -- that couldn't be read as reinforcing some gender stereotype. If she's calm she's "calculating" or "frigid," if she's happy she's oblivious, etc.

So we can make the analogy tighter by assuming that I am running for public office and a photo of me as a stay-at-home is used to illustrate a point about my character. That photo may even reinforce some stereotype about stay-at-home dads -- that they are disastrously organized for instance (true in my case.)

The question shouldn't be whether the criticism happens to reinforce some stereotype. It's whether it constitutes fair comment -- fair in the sense of relevant to my seeking office and with an at least arguable factual basis. If, under the hypothetical, I'm running for office, I've opened myself up to harsh commentary on my character. As long as the commentary isn't "don't vote for him because men are disorganized," it's fair comment.

Here's the thing. Rolling back sexism, racism and various other -isms requires among other things some social approbation for engaging in those isms. In turn, that requires society in the main to be willing to enforce that social approbation. All of that doesn't happen if we aren't careful about how we apply the labels.

In the political context, that is particularly important. One reason the charges of sexist treatment of Hillary haven't stuck is that it's often seen as a way to hide Hillary's flaws behind a veil of "you can't talk about that, it's sexist."

So we need -- desperately need -- to have an ongoing discussion about how we differentiate between criticisms of a candidate and attacks on all members of her gender. And respecting the opinions of both genders in the course of that discussion would be a good start.

¹Among other things I've tried repeatedly to point out that charging "misogyny" as opposed to mere sexism is over the top. Alas that point has received no acknowledgement and I'm tired of hearing myself type. It's sexism from here out, with the understanding that the two are not synonymous.

²There's an element of know-nothingism from the Hillary campaign itself when it comes to things like the "Barack is a Muslim" rumor. But we're talking about discourse here so we'll leave that for another day.

Jim Rome Show Smack-Off 2008 Results

Once a year Jim Rome gives his sports talk show over to the best callers of the year, plus a few legends. Once a year the callers trade barbs on each other, sports, entertainment and XR4TI Crew. Once a year, we are treated to the Smack-Off.

And once a year (well last year and this, anyway) I post the results and get a bushel of cheap hits. Since Clones have been burning up my SiteMeter already, I'll continue the tradition. And by the way, I love the Clones who were Googling "Jim Rome Smack-Off Winner" at 2:40. The show ends at 3:00, geniuses. Dig through the cushions of the old couch you sleep on in your mother's basement for a few coins and by yourself a clock.

To reset the backstory. Five-time winner Sean "The Cablinasian" Pendergast parlayed his wins into a sports talk gig in Houston with a station that rivals Rome's affiliate there. So he was declared ineligible, opening up the field.

Meanwhile, last year hot rookie Vic in NoCal called his shot, but failed to show the day of (earning him the gloss Vic in No Call.) This past Wednesday he called his shot again, this time promising to win as a rookie participant and call first and go wire-to-wire for the first time in the history of the event. Professional comedian Jay Mohr heard the call and promised to go second and pile of Vic.

As if that wasn't enough, JD in Nashville broke off a legendary song parody last year in the midst of the feud between Chad in Portland and Mike in Witchita. JD wasn't heard from for months after that, but got an invite based on the one call. Then he made one disastrous follow up call, but still retained his invite. Chad and Mike were also invited.

So high drama going in. We ended up hearing a strong competition, but the pre-game drama
played little part in the final results.

With all that said, here are the final results:

10. Casey in Vegas
9. Jeff in Richmond (Yes, the same call as always, but JIIIM is a sucker for it)
8. Silk in Huntington Beach
7. Greg in Vegas (surprisingly little amputee smack)
6. Jay Mohr
5. Terrence in Sierra Madre (still the third or fourth or fifth bridesmaid down the receiving line)
4. Stevie from LMU (on the tenth anniversary of his winning calal)
3. Joe in the O.C.
2. Doc Mike Ditolla (First time in for several years. Totally blew up Vic)
1. Iafrate (Second win. Totally blew up Doc Mike)

So there you have it. Vic did call in first, but didn't figure in the standings. The other rookie caller to do well was Cory in Ann Arbor. Rachel in Houston, Irae Craig and Brandon in Wilmington all got run. JD offered a pretty nothing call; Mike and Chad didn't show.

Maybe next year I'll get my act together and secure a little pirate audio. As it is, you need to pay money to stream the show. Rome likes his bank.

We now rejoin our regularly scheduled public policy blog, already in progress.

Elephant Wars: Arshinkoff Moves Against Tacky Restaurant

From TeamCoughlin today comes word that Arshinkoff is threatening the owner of Tangier, a.k.a. Vegas Without Slots:

The Chairman of the Summit County Republican Party has threatened to cancel the party's Central Committee organizational meeting at Akron's Tangier restaurant if his rival for the chairmanship is allowed to hold a reception on site.

Alex Arshinkoff called Tangier owner Ed George today, saying he would pull the Central Committee event scheduled for Wednesday March 30 unless George cancelled rival Carol Klinger's reception, scheduled just before the Central Committee meets. George informed Klinger by phone that her event was being cancelled.

The presser goes on to recount Arshinkoff's latest maneuvers. Matt Hurley has reproduced the entire thing, as does New Summit Repubs. (And yes, Ed George is her husband. For whatever reason, the Tangier finds itself as the focal point of many Akron dramas.)

First, the big news -- TeamCoughlin is emailing me again. Not sure to what I owe the honor.

More important -- what it all means. Like their arguments before, this latest example of Arshinkoff's high-handed, manipulative (and we can add "petty" to the list) cuts both ways. On the one hand, plenty of Republicans would like to be done with all this once and for all. It's a reminder to members of the Central Committee of what awaits any who oppose Alex if they are unsuccessful in the effor to unseat him.

An Equal Opportunity to Be Mocked

Jill finds New Republic's cover depiction of Hillary Clinton "misogynistic."

Misogynistic, mind you. "Hated of women," the dictionary tells us. Not mere sexism or clinging to outmoded stereotypes, but actual hatred of women as women. That's Jill's accusation.

Eric points out both that the cover is not inherently misogynistic (in that it doesn't play on gender stereotypes) and the dangers of crying misogyny indiscriminately. One would hope that Jill's argument avoids the rhetorical trap of equating any attack on Hillary with an attack on women generally, though she veers dangerously close with this in Plundercomment number 9:

Yes, man or woman, someone who has done and behaves the way Clinton has would be a good target for a lot of what has been thrown at her. However, the misogyny is on top of all that - the sexist remarks - everything that is connected to obvious and far less obvious sexism that exists at so many levels in our society.

Tim chimes in with a post uses the cover as a hook for a genuinely misogynistic rant. Which proves a point to be sure, but still not Jill's point.

Jill's argument starts with the proposition that the cover "has nothing to do with the story" and lacks "journalistic integrity." From that we leap to "it's misogynistic."

To start with, I disagree with Jill's assertion that the cover is unrelated to the story. Both the cover and the story's title, "Voices in Her Head," use voices as a metaphor for the clashing personalities on her dysfunctional campaign staff. It's not the tightest fit, but I hope that we aren't going to say that satire becomes hateful merely by missing the mark. Identity politics are sufficiently fraught without ratcheting to that level.

More fundamentally, Jill is missing a step in her argument. To gloss the cover as misogyny, she needs to make the case that Hillary is being depicted negatively in a way that men are not. A quick review of some past TNR covers should answer that with a definitive no.

TNR cover art has savaged Rudy Giuliani:

Dubya, of course:


Disastrous Democratic political consultant Bob Schrum:
Bad boy media crit Michael Wolff:

A Hillary analogue to any one of these covers could similarly be called misogynistic if viewed in isolation. Now it's possible that TNR management published these covers because they hate Italians, Jews, Texans and fat guys. But probably not. The New Republic publishes blistering profiles of public figures and illustrates them with unflattering caricatures. As women gain political prominence, they will receive the same treatment from TNR and similar magazines.

No one said equality would be easy.

It's All Over Now, Blue Collar Baby Blue

I first "met" Jerid Kurtz in the virtual sense when he was blogging as Blue Collar Baby at LiveFromDayton circa 2006. Then came word that he was working for Stephanie Studebaker and I was on that email list while the campaign lasted.

When Buckeye State founder Russell Hughlock left blogging to work for Richard Cordray, he tapped Jerid to run the show. Today Jerid announced that he too must move on to greener pastures.

It's no secret that Jerid and I have had our differences, on and off line. Now is not the time for that.¹ Jerid has served well both as a friend to causes we share and a worthy adversary when we clashed. Agree or disagree, having Jerid at BSB made the blogosphere more complete and made me a better blogger. Hard to ask for much more than that.

Taking over for Jerid will be David Potts and Nick

¹And with this post it can now be scientifically proven that Matt Naugle has absolutely no class.

Town Hall With Rep. Vernon Sykes Tomorrow

State Representative Vernon Sykes (D-Akron) will hold what looks like a broad-ranging and informative town hall meeting tomorrow:

You are invited to a Town Hall Meeting with 44^th District State Representative Vernon Sykes!


Join us as we discuss electric re-regulation, the economic stimulus package, education restructuring, and minority business assistance.

WHEN: Thursday, April 24, 7-9 PM

WHERE: Alpha Phi Alpha Homes, 662 Wolf Ledges Parkway, Akron, OH 44311

Click here to RSVP


Presenters include:

Marco Sommerville, City Council president

Philip Young, Independent Police Auditor

Megan Zemke, from the office of Governor Strickland's Energy Advisor

Sharon Smith, Ohio Department of Development

Michael David, MCAP Director

Vernon Sykes, 44^th District State Representative

Good stuff from Rep. Sykes, though I wonder if he is biting off too much. Unfortunately Kid Z has a violin concert so I am unable to attend. If I find any good accounts (or anyone wants to send me impressions) I will link/report.

The Mount Vernon Church-State Case Takes a Bizarre Turn

The controversy in Mount Vernon, Ohio over a public school teacher who refuses to remove a Bible from his desk is a close case.¹ This is not (from the Dispatch):

The Mount Vernon public-school science teacher who won't remove his personal Bible from the top of his desk also is accused of conducting a religious “healing session” during school and burning crosses onto students' arms.

* * *


An independent investigator will be hired to look into claims involving Freshwater, an eighth-grade teacher at Mount Vernon Middle School, the school board decided today. An administrator will monitor his classes until the probe ends.

The “healing” allegedly occurred when Freshwater was a chaperone for a Christian student-athlete group that met during school hours. A guest speaker visiting the group in January had an illness, and Freshwater called for his healing.

“He said out loud, ‘Satan be removed from this man,'” said Jessica Philemond, an attorney representing a Mount Vernon Middle School student who witnessed the event.

The same boy also was among several students branded during a science class in which Freshwater asked for volunteers who wanted to see how an electrical device in his classroom worked.

“He (the boy) didn't know it would be a cross and he didn't know it was going to hurt,” Philemond said.

Needless to say, these are just allegations and we are at the beginning of an investigation. If it pans out, hopefully the activists who screech about "persecution" of American Christians will move on to a more worthy martyr.

¹Which is to say that it's close in terms of what result we civil libertarians would arrive at in balancing the teacher's free speech rights against Establishment Clause concerns. It might even be a close case to Justice Kennedy who has declared that the key question is whether government religious speech is coercive or not. Given that Kennedy's standard leads to some troubling results, it wouldn't be a bad thing if this close case was not an opportunity for Kennedy to make his view the standard.

Post-Penna Posturing

Emails to supporters after the Pennsylvania primary. First Barack:

Pho:

Votes are still being counted in Pennsylvania, but one thing is already clear.

In a state where we trailed by more than 25 points just a couple weeks ago, you helped close the gap to a slimmer margin than most thought possible.

Thanks to your support, with just 9 contests remaining, we've won more delegates, more votes, and twice as many contests.

We hold a commanding position, but there are two crucial contests coming up -- voters will head to the polls in North Carolina and Indiana in exactly two weeks. And we're already building our organization in the other remaining states.

But it's clear the attacks are going to continue, and we're going to continue fighting a two-front battle against John McCain and Hillary Clinton.

And Hillary:

Dear Pho:

Thanks to you, we won a critically important victory tonight in Pennsylvania. It's a giant step forward that will transform the landscape of the presidential race. And it couldn't have happened without you.

There will be much more to do beginning tomorrow. But tonight, let's just celebrate the fact that you and I are part of a remarkable community of people tough enough, passionate enough, and determined enough to win big when everything is on the line.

Thanks so much for all you do.

FWIW Barack makes a donation request and hillary does not.

Hmm. Barack's right about closing the gap, which he did in New Hampshire, Ohio and Texas as well. But he didn't close the deal. And in at least a couple of those states, it was in part due to some late-in-the-contest missteps.

Hillary on the other hand sounds like she's not just looking at a new landscape, but an entirely different planet. Here's what Slate's Delegate Calculator says:

Coming into today, the odds that Clinton would catch Obama in pledged delegates were very small. Now they're zero. Before Pennsylvania, Clinton needed to win each remaining primary with 65 percent of the vote to close the gap. Even though she won Pennsylvania, that figure is now just over 68 percent. . . Furthermore, the state with the most remaining delegates is North Carolina, where Obama leads in the polls by about 20 points. Assuming he nets at least 20 more of the state's 115 delegates, Clinton needs 80 percent of the vote in each of the other eight remaining primaries to catch up.

But of course, Hillary is not talking about the pledged delegate landscape, she's talking the virtual landscape of superdelegate psychology. Her strategy for the endgame is 1) mitigate losses in pledged delegates, 2) make a putatively democracy-based argument for including the Florida and Michigan delegates so that 3) it gets her in shouting range of Obama's pledged delegate count and 4) she can make the anti-democratic argument that superdelegates should overturn the primary results and slot her in.

We'll try to flesh out Hillary's intellectually vacuous argument in a later post. For now, know this -- new landscape or not, it's still a steep uphill for Hillary.

Oh, and I should acknowledge being butt-licking wrong on my predictions. The triumph of hope over experience.

Carnival #114

I've been a very bad Carnival citizen lately. Of the past four, the only one I participated in is the one I compiled. This week Lisa Renee put it together.

You need not follow my example. Enjoy this week's linkety goodness and let's agree together to get our links in next week.

Final PA Predictions

Over at Pollster.com we get this assessment of the polling trends:

Clinton has increased her lead in the trend estimates over the course of the last polls to 6.6 points using the standard estimator, and to 8.4 points using the sensitive estimate. Last minute polls have given her bigger margins.

Now the key question is whether undecideds push her over a 10 point win, or whether increases in turnout by new "unlikely" voters raises Obama's total.

My guess is the latter. First, the weather is nice. More importantly, Obama's money and grassroots volunteer strength hopefully have translated to a superior GOTV organization.

While Team Hillary has run out the same "If he doesn't win he's a loser" argument they threw against the wall before Ohio, I hope the media maintains a realistic BTE/WTE. Right now the line is a 7-8% Hillary advantage. Six or less is BTE for Obama; I'll put my final prediction at five. Anything over nine is WTE and makes closing that much harder.

Once again Obama had a chance to put Hillary away and once again he has let her up off the mat, this time with his ill-advised speculation about bitter Pennsylvanians. Whatever spin Ohio bloggers may want to put on it, he gaffed in a bad way and will have to make his case in Denver as a result.

Hillary Hates Us

Hilzoy pretty much nails the problem with Hillary's anti-MoveOn rant.

Conflating opposition to the war in Iraq with opposition to the war in Afghanistan is exactly the sort of thing that drives me up a tree when, say, Peter Beinart does it. It amounts to taking a position that a whole lot of people hold -- either opposing Clinton herself, or opposing the war in Iraq -- and conflating it with one that only a small minority of people hold, and then using that supposed "fact" to discredit your opponents -- to cast them as members of some tiny fringe that doesn't need to be taken seriously. It is what Atrios calls the "dirty f*cking hippies" argument: that people who oppose the war in Iraq, or Clinton herself, are just relics of the 1960s, or some other variant of "not serious people like us", and their views can therefore be dismissed out of hand. "MoveOn didn't even want us to go into Afghanistan. I mean, that's what we're dealing with."

To say this about her opponents is just wrong. But to say it about the activist base of her party -- about the people who are motivated enough to show up for caucuses and participate in the electoral process -- is insane. Hillary Clinton is running for the nomination of the Democratic Party. She is trying to represent us. If she thinks that people like publius, who caucused in Texas, is worthy of contempt, or that the stunning increase in Democratic voter participation this year is not a cause for joy but a sign that the dirty f*cking hippies have taken over, why doesn't she just become a Republican? She's certainly talking like one.

Elephant Wars: Countdown to the Last Battle

The Summit County GOP has set the date for their Chairperson election. This Wednesday, April 30, the Central Committee votes by secret ballot.

Much of the politicking in these things is done behind the scenes so a party outsider like myself has little to go on (and the two sides have stopped emailing me, apparently tired of me mocking them both.) Ben Keeler, a local blogger active within the Coughlin camp, says that as best he can tell no one has a firm head count. Ben will try to offer on-scene reports next Wednesday night.

If it looks tied going in, Alex will win. As noted before, TeamCoughlin needs to convince the wobblers that he can win. I don't think anyone has faith that the secret ballot will actually remain secret if Alex wins.

All of which makes TeamCoughlin's latest public statement smell of desperation. Calling on someone to resign days before an election just sounds silly. But it's nice to know that Coughlin stands for cleaning up high school Spanish clubs.

Meanwhile, yesterday's ABJ fronted a major preview story along with a sidebar timeline yesterday about the dispute. Among other things, the story offers one answer to what happened to bring Arshinkoff so close to losing his seat:

But at some point in the last 10 years or so, Arshinkoff's adversaries claim, he changed.

They said he didn't deliver on promises in local campaigns. He cut off ties to his closest allies. He stopped listening to input.

"He's a different person," said Hoover, who was angered over Arshinkoff's handling of his unsuccessful campaign for county executive and his failed bid for county prosecutor.

"I don't really understand him. I have firsthand experience of him not keeping his word."

It's possible, but color me skeptical. Arshinkoff has always been high-handed, manipulative and vulgar. The problem began when he started losing, which had as much to do with the resurgence of the local Dems as anything Alex did or didn't do. In any event, people who put up with Arshinkoff up to a point started turning away. No one likes a high-handed, manipulative and vulgar loser. In event, maintaining that A² has changed is probably the best argument, though we haven't heard it much out here in the cheap seats.

Whatever happens, the final battle will not be the end of the story. Certainly if Alex retains his seat, his first priority will be vengeance upon those who sought to bring him down. Imagine a political equivalent of the last twenty minutes of any of the three Godfather movies. If TeamCoughlin wins, they will no doubt engage in some level of housecleaning, as they did (pending a court challenge) at the Board of Elections.

The result will be a weakened though possibly renewed Republican Party come this fall. And no one knows quite what that will mean.

APC Veterans Panel May 1.

The Akron Press Club will present a panel on veterans health care next week. We've got a great line-up:

Moderator: Eric Mansfield of WKYC

Panel Members:


George Baker, Executive Director, Summit County Veterans Service Commission

Patricia Hall, Operation Enduring Freedom/Operation Iraqi Freedom Program Manager, ouis Stokes Cleveland VA Medical Center

Jason L. Huff, Regional Public Affairs Director, Ohio Attorney General’s Office (And a veteran in his own right)


Details:


Date: Thursday, May 1

Buffet Lunch: 11:45 a.m.

Program: Noon

Location: Martin University Cente, 105 Fir Hill, on the University of Akron campus.

Cost: $10 for Akron Press Club members; $15 for non-members.

The program will start immediately following the luncheon, both of which are open to the public.


Reserve a spot: Reservations are requested. Contact Abe Zaidan. Contact info here.

And if you are wandering by the blog for the first time, I sit on the Press Club Board of Trustees and the programming committee, though I didn't put this panel together.

An Old Global Warming Skeptic Is New Again

On BFD, resident warming denier J. Murray posts links and and summary to a WSJ editorial by Dr. Patrick Michaels from the University of Virginia. Murray titled his BFD piece "Another Prominent Scientists Challenges Global Warming," implying that Michaels is someone we haven't heard from before on the issue. After the summary J says, "For those with an open mind and a desire to learn, it’s worth a full read."

Well I have an open mind and a desire to learn, so I actually clicked through and read it. In fact my mind was so open I questioned whether this was, as implied by the title, a new scientist wandering into denier camp. As it happens I was at U.Va. in the nineties as the climate debate began heating up, so to speak, and recall Dr. Michaels as a prominent denier then.

Indeed, a few moments with Google churned up plenty of info on the good doctor. Like the fact that his work is generously underwritten by the petroleum industry and electric utilities. And that he has been accused of sloppy science.

So, no, climate deniers. You haven't gotten a new convert. Just a well-funded crank who has been at this for twenty years.

Hillary's Anti-Bruce Ad [Parody]

The folks at Slate Magazine who gave us "Hillary Clinton's Inner Tracy Flick" are at it again. This time they imagine the next Hillary ad attacking Obama through his supporters.

The Unbearable Tim-ness of Russo

It was inevitable that Tim Russo would take umbrage at the coda of my latest Carnival post. Umbrage taking is one of Tim's strengths and he an I have been on rocky terms¹ ever since the first instance of Russo Drama.

What I didn't expect was that his ire would evince an inability to comprehend written English.

To reset very briefly, Tim is a sharp political thinker and writer who has blogged on and off since the mid-Cretaceous period in adjusted blog time. He also, as it turns out, has a fairly impressive skeleton in his closet, one that has prompted a couple of his blog hiatuses. He recently parted ways with Buckeye State after a spell as a front-pager and started his own blog concentrating on his two favorite subjects -- politics and himself.

He submitted to this week's Carnival a post covering both in detail -- specifically a history of Meet the Bloggers and his relationship with George Nemeth. Part 1. Part 1 is innocuous but portentous. I didn't know anything of a falling out between the two, and maybe I'm misreading the foreshadowing, but this doesn't look like a story that ends well.

In any event "My relationship with another Ohio blogger" isn't exactly right down the middle of the Carnival's format. It was enough of a cause for concern that I wrote my co-editors about it, as we do when issues come up. Based on the email convo I decided to post Part 1 and kick it down the road to whoever gets Part 2.

Then I got three more posts that were to one degree or another off topic and thought -- in the sleep-deprived dark of last night -- to raise the issue of format with the Carnival community. Anticipating issues and sorting them out ahead of time is always preferable and the present trend may lead us to situations where people accuse the administrators of arbitrary enforcement of the format. Or could lead us to a Carnival where the format is an unrecognizable mess.

As I've said a few times now, I'm pretty much happy to follow community consensus on the thing -- police, don't police, some middle position, etc. I just want an intentional decision on the thing.

Such a post was bound to touch nerves and unfortunately the first nerves touched belonged to my friend Kyle Kutuchief who felt he was being called on the carpet. Unfortunately I was already crabby for non-blog reasons when I read Kyle's comment and my response was unnecessarily snarky (apologies, K.)

Enter Russo. Tim's post is from the Bizarro World. After starting with his favorite charge that I take myself too seriously², he upbraids me for policing the Carnival. What he offers in his post is one line from Carnival link post on his blog:

A manifestation can be seen here, in this week’s Carnival of Ohio politics, also known as exercise in futility that delivered me two links today. Jill trumpets a “serious call for comments”. Pho wants to police it.

We’d like a little community input into whether we should stiffen our policing of the format.

Um, actually, that's me asking the community of they want us to police the format or be more laissez faire. Unclear on that? Check out how I put in at the Carnival:

So we may be at a bit of a watershed. We can start cracking down on format or we can continue to allow drift, each choice carrying risks and benefits. . . . So we need you all to chime in. Which way should we go?

Bizzaro Tim Russo gets even better. Next he claims that I think we own the Carnival. Here's his rant including a quote from my riposte to Kyle:

And then there’s the high-minded Photasticness in the comments at the Carnival itself, where we learn it is actually “owned”.

It’s dewey-eyed and idealistic to think of the Carnival as a community public forum rather than a property the four of us own, and your prickly response confirms that.

Dewey-eyed and idealistic? Are you kidding me? I didn’t know that anyone “owned” this Carnival thingie. It’s pretty much a vanity project, a fairly useless one at that, whose best value is as a cheap marketing tool for new blogs like mine who need the 2 clicks. But hey, ownership has its priveleges, I guess, so go ahead Pho, own it.

What I said in context was:

It's dewey-eyed and idealistic to think of the Carnival as a community public forum rather than a property the four of us own, and your prickly response confirms that. Nonetheless, it's one vestige of my youthful communitarian idealism I have a difficult time relinquishing to jaded middle age.

In other words I wasn't claiming we own it, I was reaffirming that we don't feel like we own it. Reaffirming a statement I made in the post proper:

But Jill, Lisa Renee, Ben and I each feel the Carnival isn't our property so much as it's a benefit to the blogging community we happen to work on³.

Tim's rant ends with a demand to be removed from the Carnival list. I don't recall how he got on -- I may have done it in some misguided spirit of generosity. I haven't received a request to remove him until now, and I gladly comply. In fact the act of deletion generated such a happy image, I took a screen shot:

Yeah, I'm really OK with that.

¹Depending on how all this plays out I may end up writing "Tim Russo and I" (syntactical contrast intentional) to offer my side of the Russo/Pho drama, but I'll be happy if it doesn't come to that.

²This in itself is Bizarro World. Granted we don't see ourselves as others see us, but the charge that I take myself too seriously makes as much sense to me as the charge that I'm fat. And if you haven't met me, let's just say that the dimensions my daughter gave my avatar are distressing close to accurate.

³Admittedly the "dewey-eyed and idealistic" language is something of a sop to our conservative friends on the Carnival some of whom get howling fantods at the very notion that some property may be community owned.

William Shatner to Release Dramatic Reading of Exodus

Yes, William Shatner/Captain James T. Kirk/TJ Hooker/Priceline Negotiator Guy. That guy did a dramatic reading of the book of Exodus. With a full symphony and symphony chorus. And is releasing it on CD.

And get this, everyone is taking it seriously. The hammiest overactor of his generation is reciting a sacred text and people apparently think it's a good idea. JTA ran a straight up story about it, the angle being that Shatner denies it's about returning to his Jewish roots. (BTW, news to me. Knew that Leonard Nimoy is Jewish, but not Shatner.)

Because this is Exodus, it can't be funny,no matter how overwrought Shatner's dramaturgy. So instead, let's consider that other famous Shatner dramatic interpretation. Let's go back to 1978 . . .



That's funny no matter how many times I see it. There's not one syllable he doesn't get exactly wrong.

By the way, I was there at the creation. I both proud and embarrassed to say that in 1978 I was a SciFi geeked out middle schooler and watched every minute of the Science Fiction Film Awards. When it came to Shatner's performance, my reaction was, "What the heck is that?!?!?!??"

Now it has past into pop culture lore -- so much so that Beck incorporated the imagery into his video for "Where It's At." Shatner's Priceline commercials suggested that is at piece with his fundamental ridiculousness. But this latest venture indicates that he is still capable of taking himself entirely too seriously.

Carnival #113 Is Posted

Someday I shall offer a laundry list of all my excuses for failing to update my increasingly under-active blog. For now, my excuse is that in addition to everything else, this was my week in the Carnival barrel.

In addition to compiling the usual linkety goodness, I end with a plea to the community for some guidance. As generally happens in such endeavors, the topic/format envelope gets stretched a little more each week. We'd like a little community input into whether we should stiffen our policing of the format.

"Guns to Guantanomo" Impressions and Air Times

My first effort as a moderator went well yesterday. Which is to say, the panelists did a fine job and I mostly watched.

The one panelist I hadn't met before was Jonathan Adler at Case. He's a very good guy and very bright, though we don't agree on much. We apparently kept him away from Volokh for the day, but he's back this morning with three new posts.

One fundamental truth about current Con Law controversies is that you can't go into a Second Amendment debate unarmed; proponents of the personal right show up locked and loaded. The gun debate was the one place where we had some real back and forth, though the panelists were civil and respectful throughout.

Anyway, you can see all this on cable if you weren't able to make it there. Air times are:

Tuesday, April 22, 7:00p.m.
Thursday, April 24, 9:00 p.m.
Saturday, April 26, 7:00 p.m.
Sunday, April 27, 4:00 p.m.

In Akron, Canton, Mansfield or Youngstown, it's cable position 23. In Cleveland, cable position 15 or 22.

Marc's Mess: Leo Jennings On Leave.

AG Marc Dann put his Communications Director (and longtime FoM) Leo Jennings on paid administrative leave resulting from the Marc's Mess sexual harassment scandal. Why Jennings? The PD reports this intriguing snippet:

On Monday, Jennings was placed on leave as a result "of new information received over the weekend related to the ongoing investigation," according a statement from Dann's office. Deputy communications director Ted Hart would not comment further.

So this gets us up to two staffers who are being paid to not do anything as a result of these allegations. It does suggest a heightened level of cluefulness on Dann's part. Up until now it looked like the Gang of Three would fight together or die together. Now Dann looks more willing to throw people overboard if they did wrong. On the other hand, it looks like Dann is gearing for the long political fight that Dems have dreaded.

The comments section is now open for rampant speculation about what Jennings may have done wrong to earn this trip (his second, by my count) to the doghouse.

Worlds Are Colliding

Specifically my blog world and my part-time academic world.

Up until now I haven't told students about the Pages, nor have I written much here about teaching. It's hard to explain why, except that I'm big on strongly, consciously policing boundaries because I don't seem to have good natural instincts for them. There have been some impressive boundary-crossing screw ups in my past. Add to that a couple of academic friends who do or have blogged anonymously because they want to keep their politics neutral in the classroom.

So I've kept the two worlds separate. Like in other areas of life, Pho blogs here and that Scott Piepho guy does the other stuff. One of the advantages of having a nom de blog.

But this week the inevitable happened. Someone got wind and asked in class about the blog. Because of my jacked-up URL I generally tell people to find their way here by Googling Pho's alter ego and some have done so. (The first two hits came in during class. Nice to know my students are putting those laptops to good use.)

As I said at the time, the real surprise is that it's taken nearly two full semesters for this to happen. Just a few years ago someone would have Googled me the first week of class and that would have been up. The young adult online culture seems to have changed a bit. Less surfing, more chatting and social networking.

And of course the accursed texting.

Anyway, now some students are reading *waves.* So far I've gotten a very nice email and a Facebook friend as a result. The email was a revelation as it seems my politics were less than clear to the student. This is a good thing. My solution to the liberal professor thing is to consistently offer both sides of arguments, giving due respect to the position not my own. If my student's comments are an indication, the strategy works at least to an extent. And being a militant pragmatist helps.

As it happens, I've been thinking about posting bits from my lectures (I wouldn't blog anything about students unless I could be sure they would remain double secret anonymous and students swinging by here pretty much kiboshes that.) Partly it's because my business is to teach the law to laypeople and you can't have too much practics. Partly it's because there are things people don't know about the law and it really bugs me that they don't. And of course, it gives me material with little extra work.

Looking at the workload this weekend, I can't say that the first of these will go up any time soon, but it may become an ongoing feature.

Community WiFi Coming to Akron

The ABJ's lede today is the announcement that Akron will host a "wireless internet access corridor" under a plan unveiled yesterday. The Knight Foundation is granting $4.5 million to the nonprofit digital networking organization OneCommunity to set up the network. OneCommunity will set up the Knight Center for Digital Excellence to run the network. In addition, the Center will be part of a broader effort to expand community wireless access. This from the press release:

The nonprofit Knight Center of Digital Excellence will collect and
share international best practices online with communities everywhere. It
will provide on-the-ground aid to the Knight communities to develop
technology strategies and enable citizens to connect with each other and
the world. Knight's initiative includes a $10 million Digital Opportunity
fund offering challenge grants to Knight communities.

In addition to the seed money from the Knight Foundation, both the City of Akron and the University are pledging money to operate the network.

You can watch the press conference on Knight's site. Case Wester CIO and blogger Lev Gonick blogs about the presser here (h/t BFD. Gonick is also a OneCommunity co-founder.)

Ohio dot com hosts a pdf map of the area to be covered. With less functionality, we offer this:

This is very much about central city with a clear focus being business development. The area is bordered roughly by Memorial Parkway/Tallmadge Ave on the north, Route 8 and Exchange Street on the east, South and Fifth streets on the south and Mercer and Storer Ave on the west. While plenty of residential areas are included, much of what is excluded is residential. Most of the wealthiest (Northwest where the rubber mansions stand) and poorest (especially Summit Lake) areas are just beyond the coverage area.

More thoughts later.

Lurking in Marc Dann's Anxiety Closet: Civil Rule 26.

Yesterday we discussed the legal procedures at work in the AG's office sexual harassment case -- a scandal your blogger will heretofore refer to as Marc's Mess.

As alluded to before, the big step on the horizon is discovery. Assuming the plaintiffs move the case out of the OCRC, they have the right to ask the uncomfortable questions. It may be a stretch to say that whether Jessica Utovitch was wearing PJs in the frat house condo is relevant to whether Anthony Gutierrez harassed his subordinates, but that's not the standard. Here's the standard from Federal Rule of Civil Procedure 26:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense . . . For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).

This is why the allegation that Utovitch was rocking sleep clothes in the AG condo. As a practical matter it's nearly impossible to prevent the other side from asking a question tht has at least some connection to the allegations in the case. In this case, part of the allegation may well be that the office permitted a culture of licenstiousness that led to a hostile work environment. The big question -- whether Dann and Utovitch have an other-than-professional relationship is either relevant or likely to lead to relevant information about that.

So there will be a deposition and the big questions will be asked. At that point we have several possible scenarios. If the truth is that nothing untoward is going on, Dann and Utovitch will say so and either be believed or not. If something is going on and they tell the truth, Dann goes on but probably is mortally wounded poltically.

And if the don't come clean, then it's a matter of whether the other side -- either the other legal side or the other political side gets the evidence to break the stories. If that happens, game over.

No doubt Dann is concerned about losing the case and about his friend. But I bet what keeps him up nights is imagining himself in that deposition chair.

The AG Mess: ModernEsq's Thoughts Supplemented

Modern Esquire posted a must-read about the brewing scandal coming out of the office of Attorney General Marc Dann. If you haven't heard, a high-level supervisor and long term FOM, Anthony Guitierrez has been accused by two female staffers of sexual harassment. Part of the scandalmongering includes cries of cover up based on a) the fact that in-house EEO officers attempted to settle the matter before they filed their complaint and b) the in-house investigation is being handled by Assistant Attorneys General whom Dann had hired.

In my past lawyerly life your humble blogger has both litigated sexual harassment cases and prosecuted sex crimes. Like Modern, I've been troubled by some misstatements in the commentary about the case, but haven't had the time to post about it until now. Modern's post provides much of the necessary background which this post will supplement somewhat.

As Modern notes, the cover up controversy misunderstands the nature of the current legal controversy. To take an additional step back from Modern's post, understand that sexual harassment by itself is not a crime. It is, rather, a form of employment discrimination for which an employee can seek compensation under statute. So it is "against the law" in the sense that a statute creates the cause of action, but there is no crime defined as sexual harassment.

That's the backdrop for Modern's that the statutory scheme encourages employers to resolve cases of alleged harassment before complaints are filed. The EEO officers who tried to settle with the complainants may well have been motivated more by preventing embarrassment to the office than a sense of justice, but that's of no moment. The bottom line remains -- attempting to resolve a civil action prior to court proceedings isn't just OK, it's encouraged.

While sexual harassment isn't the name of a crime, there are crimes that might constitute sexual harassment. The most troubling allegation in the complaint is that one of the staffers lay down after drinking heavily with Gutierrez and awoke to find Gutierrez lying next to her in his underwear and three of the buttons on her pants undone. While troubling, it would be hard to prosecute a crime based on these allegations.

The nearest offense would be gross sexual imposition which is touch the errogenous zones of a helpless person for the purpose of sexual gratification. Two problems arise. First, the evidence at this point appears to be the word of that staffer. Without more, it's hard to prove a case beyond a reasonable doubt based on that evidence alone. (Please don't afflict me with scoldings about how I should believe women. It's not about that, it's about getting twelve randomly selected jurors to unanimously agree that her testimony proves the case beyond a reasonable doubt.)

The second problem is that the allegations by itself probably isn't enough to establish the crime. We know Gutierrez was in his underwear and we know her pants were unbuttoned. We have no evidence of actual touching. We can infer that probably the nearly naked guy touched her, but probably isn't beyond a reasonable doubt.

All of which is to say that the fact that a maybe crime is involved doesn't much change the original point that attempting to settle the case isn't an illegal cover up.

The other cover up complaint comes from the fact that the internal investigation is being done by Dann appointees. To flesh out Modern's point a little, let's consider what the internal investigation is all about. An internal EEO office does two things -- they police the office for potential violations of employment discrimination laws and, in the event of a complaint, to help compile the information that the agency uses to defend itself. The bottom line for the EEO office is keeping the agency out of trouble. The exact mix of the two somewhat contradictory tasks is a matter of internal policy.

But here's the main thing. The internal investigation isn't the definitive investigation. What's happening now is the beginning of a (likely protracted) adversarial process. Employment disco laws are a little different in that a plaintiff has to start in an administrative agency. That's what the Ohio Civil Rights Commission is. The OCRC hearing officer will take evidence from both sides and render a decision.

That is, if the OCRC process is permitted to go to conclusion. The statutes also allow a plaintiff to request permission to sue in court if the case isn't resolved in 90 days. That's what usually happens -- the plaintiff asks for a letter granting her the right to sue (cleverly called a Right to Sue letter) and goes to court. At that point the discovery rules kick in and, among other things, everyone at the condo that night give a deposition under oath. That ultimately is the real anxiety for Dann et al.

For now the questions about who wore PJs and when she wore them are a few months off. To get back to the cover-up talk, the bottom line is that the investigation in the AGs office won't be the bottom line.

Ultimately this will quite likely go badly for Dann and company, and will go badly for a long, painful time. But calling what has happened a cover up is a bit of a stretch.

Obama's Campaign Jack Makes Hillary Sad

The Hillary campaign is taking a break from telling me to sign a petition against The Horrible Injustice Done to Michigan and Florida for a new cringe-inducing tack. The email goes like this:

Dear [Pho]:

With 14 days to go until the people of Pennsylvania vote, the Obama campaign has decided to go all-out. They're trying to end the race for the White House with an unyielding media blitz. Right now, we're being outspent 4-1 on Pennsylvania television.

So now, here's what we have to ask ourselves: Have we come this far in our history-making contest for the Democratic nomination only to see the race decided not by the quality of our ideas but by the size of our opponent's media budget?

To paraphrase Jim Rome, Obama spends a lot of money because he has a lot of money. And he has a lot of money because over a million people (myself included) have given him money. He doesn't have a lot of money because his spouse pulls in a quarter million per for speaking engagements. And his self-imposed restriction on lobbyist money, though not perfect, has limited the money he's gotten with an expectation of future consideration.

So now here's question we really have to ask ourselves: What does it say about the two campaigns that one has generated such excitement that people have given more than votes and the other hasn't?

And it goes deeper than that. Remember all the stories about Hillary hiring canvassers in Ohio? It suggests she has burned more money on staff than Obama has because he brings out more volunteers. In a study of contrasts, my Obama email today didn't ask for money. It asked for Ohioans to make the roady to PA to help out. For obvious reasons, Hillary's contributor list hasn't gotten that email.

When they are not defending democracy, Hillary's flak cloud argues that the democratic result should be overturned because she is more electable based on her performance in big states. She doesn't understand that Obama's war chest is a far more compelling electability argument,

Another Day, Another Inane Billary Argument.

Let's get two things out in the open at the start:

1. I voted for Barack Obama.
2. I have a penis.
   

For a distressing number of otherwise sensible people, these two facts together appear to render my opinions on the Presidential race hopelessly flawed. If you fall into that category, feel free to stop reading, surf over to see Susie's¹ latest anti-Obama screed.

For the rest of you, let's sift through Team Clinton's latest iteration of "You hit me and I'm a girl!" An argument is going around that it is sexist -- sexist, do you hear -- for people to suggest that Hillary should quit the race, given the long odds that she could overtake Obama. Susie points out one particularly vociferous post, riffing off of an article on Real Clear Politics (because if a Clinton supporter can't find talking points on a right-leaning site, she just isn't trying).

The thesis of the RCP writer is that calls for Hillary to step down are unprecedented and caused by "Clinton fatigue." To wit:

To review the history:

• In 1988, Jesse Jackson took his hopeless campaign against winner Michael Dukakis all the way to the convention, often to great media praise.

• In 1980, Ted Kennedy carried his run against Jimmy Carter all the way to the convention, even though it was clear he had been routed.

• In 1976, Ronald Reagan contested the “inevitability” of Gerald Ford all the way to the convention. Few, then or since, have ever thought to criticize Reagan’s failure to step aside and let Ford assume the mantle.

• Also in 1976, three candidates — Mo Udall, Jerry Brown, and Frank Church — ran against Jimmy Carter all the way through the final primaries, even though Carter seemed more than likely to be the eventual nominee.

• Even in 1960, Lyndon Johnson and Adlai Stevenson fought the “certain” nomination of John F. Kennedy all the way to the convention floor.

In fact, until this year, it’s been an axiom of American politics that candidates are allowed to pursue their runs until they decide to drop out — which is usually, by the way, when they run out of money. Even Mike Huckabee kept running against John McCain in this campaign long after it was obvious he had no hope of winning the GOP nod.

The post Susie sites then argues that the candidates who were "allowed" to continue their quixotic runs all have in common possession of a penis. She argues that this, not Clinton Fatigue, is the root of the double standard.

No, let's really consider the history. All those candidates had something else in common. They were all implored, loudly and repeatedly, to sit the f*ck down already. Set aside Jackson's run which had nothing to do with actually seeking the nomination. Kennedy's 1980 run to this day is considered a black mark on his record (not easy to see among the many others.) Reagan's '76 run cost him mainstream party support at the beginning of the '80 campaign. In both cases, the losing candidates are widely credited with mortally wounding their party's nominee.

Udall was the only challenger anywhere near Carter and was pretty much a candidate in name only. He was not trashing Carter and arguing against the legitimacy of his nomination.

In every case, people made the argument that the clearly trailing candidate should stand down for the good of the party. That is what is happening today. And what is truly unprecedented is a trailing candidate throwing every dirt clod within reach of the leader. Hillary would be asked to step down regardless of her genitalia.

It's what comes of not winning.

¹Because she calls Barack Obama "Barry" of course.

The Next Press Club Program Includes Someone You Know

Monday, April 14 the Akron Press Club will present a panel discussion of the Roberts Supreme Court. Panelists will include law professors Jonathan Adler from Case and Will Huhn from Akron and political scientist Christopher Banks from Kent.

The moderator will be an underemployed slacker sponging off his wife attorney, writer and university lecturer named Scott Piepho.

Seriously, this is the first program I've helped put together as a Board Member. The program is called "From Guns to Guantanamo: A Guide to Life in the Roberts Court Era"

Details and reservation info here.

Now I have to get back to prepping.