...the House hearing on whether to divide the 9th Circuit. You can, too, if you click here.

For a much more representative example of Justice Brown's questioning, I suggest listening to Russell Feingold's eleven minutes with Justice Brown about age discrimination. If you open up this link and move the tracker all the way to the end of the first, 2.5 hour section, it should start the second section, eleven minutes long. I'd really like to type out the whole thing, if I get a chance, but, it's, well, eleven minutes of pretty dense stuff. If anybody happens to find (or type up!) a transcript, let me know. Otherwise, listen to that for a pretty good taste of Justice Brown getting hard questions but giving precise, lawyerly answers.

The Volokh Conspiracy has blog-rolled us.

Southern Conservatives have dumped their comments. Celebrate by sending them an email.

This is how NPR quoted Justice Brown on the Supremacy Clause, which made me wonder if she was some sort of nitwit:

Specter: Well doesn't the Supremacy Clause of the Constitution mean that the Equal Protection of the 14th Amendment trumps California Proposition 209?

Brown: Doesn't the Supremacy Clause mean that?

Specter: Yes.

Brown: Well the U.S. Supreme Court has not said that.

Specter: Well the state cannot have a Constitutional provision that conflicts with a U.S. Constitutional provision, can it?

Brown: This is not an issue I have looked at in detail.

Specter: You invalidated affirmative action which was taken under a statute on the ground that California Proposoition 209 provides that the state shall not grant preferential treatment on the basis of race, sex, color, ethnicity or national origin. But isn't the California Constitution on Proposition 209 subordinate to the Equal Protection Clause of the 14th Amendment so long as there is a compelling state interest and the issue is narrowly tailored to address an identified remedial need?

Brown: Well if you're asking if a state would be precluded from having a higher standard, I don't think so. I mean the U.S. Supreme Court has recognized that prohibition obtains.

Specter: Well doesn't the Supremacy Clause of the Constitution mean that the Equal Protection of the 14th Amendment trumps California Proposition 209?

Brown: Doesn't the Supremacy Clause mean that?

Specter: Yes.

Brown: Well the U.S. Supreme Court has not said that.

Specter: I'm not sure whether they've said it or not, maybe they haven't had it presented. But the state cannot have a Constitutional provision which conflicts with a U.S. Constitutional provision, can it?

Brown: I think that, and I have to admit, that this is not the issue that was before us in that case, and so this is not an issue that I have looked at in detail--

Specter: (interrupting) --You may say that the program was not, did not meet the Equal Protection Clause of a compelling state interest, or wasn't narrowly tailored to address an identifiable remedial need, but I do not think that you can just base the conclusion on Proposition 209 when it conflicts with the Equal Protection Clause.

Brown: Well, since that was not the question that was presented to us, and the question was only whether the program of the city of San Jose violated the CA constition, I just have to say it's not an issue that I've looked at.

Specter: Well, was the San Jose provision addressing a compelling state interest? I'm going back to the 14th Amendment, the question is whether it was addressing a compling state interest and was sufficiently narrowly tailored, because if it satisfies the Equal Protection Clause of the 14th amendment, wouldn't that prevail over Proposition 209?

Brown: I don't know if it would or not, Senator.

Orrin Hatch: Now the Ninth Circuit court of appeals . . . . has ruled, and this is noted in the majority opinion of the Proposition 209 case, that Proposition 209 does not violate the Equal Protection clause. Also federal courts have ruled that that proposition does not violate federal civil rights statutes. Now in your opinion, I would note that you acknowledge the Supremacy Clause would dictate federal law would prevail. If Proposition 209 violated the U.S. Constitution or federal statutes, then literally federal law would prevail. Is that correct?

Justice Brown: Of course.

I'm not sure I actually have many more productive things to say about Smoking Bans. But I would like to offer up a piece of interesting reader mail, and then just sort of aimlessly link to everything that's already been said.

First, the email. Reader Bruce Baugh (who blogs here) writes:

I'm one of those people who is really, really badly affected by smoke, along with a whole lot of other things - I have an immune system that's gone through weak and troublesome into quisling territory when it comes to repelling possible menaces to the well-being of the rest of my body. My reactions to smoke start with nausea and disorientation and can range up to episodes hard to distinguish from petit-mal epileptic seizures. So I have every interest in minimizing my exposure, both cumulative and in terms of the concentration at any particular spot.

It's this second concern that advocates of smoking bans never seem to take into account.

Given that smoking is both addictive and enjoyable, it comes as no surprise to me that people both feel cravings to smoke and the desire to do so, or that they'll look for whatever opportunity they can get to smoke, within the limits of the restrictions affecting where they work.

And I hate the fact that building bans have made essentially every public building more dangerous for me to enter, since I have to budget the physical resources to cope with the cloud of smoke around every entrance. If people could smoke in their offices, or in interior smoke lounges, or whatever, they wouldn't need to go outside for it and leave a residue where it can affect me. Every time another class of facility becomes subject to a ban on smoking within it, there's another class of facility that will become unpleasant and even dangerous for people like me.

I've described this in the past to some anti-smoking activitists who then act as though the solution is more banning. But given the medical realities, all that spreading the zone of prohibition will do is concentrate that much more smoking at the zones' boundaries. The law can't readily change either the benefits or the liabilities of smoking for smokers, any more than it can change the tides. And from time to time I get angry that measures intended to benefit (among others) me actually make public activity that much harder for me.

I normally find Amy's taste in movies extremely good (which is to say "extremely close to mine," but nonetheless I think her entry into the "20 Best Movies" argument deserves a little scattershot critique.

While it's a close call between Fellowship of the Ring and Two Towers as movies the extent to which Two Towers deviates from the underlying text (the elves at Helms Deep, the wimp-i-fying of the Ents, and the damage to Faromir's character) should give this one to Fellowship, Jacob Levy's defense of TT notwithstanding(but see UPDATE).

I'm tentatively willing to excuse the loss of When Harry Met Sally from Amy's list, since it seems to betray a (largely justified) bias against romantic comedies, and it includes Moulin Rouge! (and MR! and WHMS function as substitutes in some odd emotional way).

There is, however, no excuse for the absence of Tom Stoppard's Shakespeare in Love, not even the presence of The Princess Bride.

I'll stop there.

UPDATE: Jacob Levy emails to clarify that he never defended Two Towers as being better than Fellowship, just "not-as-dismayingly-worse-as-people-first-thought". Good.

Originally, this was going to be a post about Janice Rogers Brown. I've just finished listening to about four hours of Senate Confirmation Hearing. But I'm not going to write that post right now, because I'm just too angry to be able to do it.

I have unease about some of the Bush administration's judicial nominees, but Justice Brown is quite impressive, and I can't understand what's going on in Chuck Schumer's head. I think I'd better get some lunch now.

I picked on Ampersand's last series of posts on workplace gender discrimination, so it's only fair that I point out that his newest series on partial-birth abortion has started out with a spot-on analysis of why Republicans want their ban to be struck down by the Supreme Court.

And I have to say that while I am no fan of late-term abortions, I just don't understand the purpose of banning one particular procedure because it scores high on the gross-out meter. I mean, a dead fetus is a dead fetus, no matter how it was killed. Right?

I realize I'm something of a Johnny-come-lately to the Volokh Conspiracy Darwin fish debate, but nevertheless, I want to go back and object to this statement by David Bernstein:

I've received quite a few emails about the Darwin Fish, mostly to the effect that it takes a sacred Christian symbol and profanes it, and how would I like it if someone took a sacred Jewish symbol and profaned it. I don't quite see it that way. The way I understand it, putting a Jesus fish on one's car is a public expression of religious faith. I emphasize the word public, because I think such public expressions, by there very nature, are meant to admonish non-believers that they should be believers--otherwise, what's the point of putting one's faith out there in the public domain?

Now, if Christianity were some sort of Ponzi scheme, it might be logical to say that all public displays of faith are meant to be prostletyzing. But Christianity also includes a moral system, a community of believers, and an obligation to confess one's faith before God and men. By displaying the fish symbol, a Christians say something about their moral code, identify themselves to like-minded individuals, proclaim their group alleigance, and discharge a Biblical obligation--all of which are only very tangentially related to converting others.

Incidentally, I learned that the fish symbol arose as a way for members of the early church to covertly proclaim their identity to fellow church members without arousing the suspicion of persecuting authorities. It's historical origins are about as far from prostletyzing as one could get. And as to how precisely a stylized fish is supposed to be a convincing argument for Christianity is entirely beyond me.

This is not to say that I think the fish symbol isn't appropriate fodder for the sort of mocking Jacob Levy defends, merely that one cannot get around the fact that parodying it is offensive by describing it as a public act of persuasion.

Roger Simon and Dan Drezner are arguing about whether or not movies of the last twenty years are by and large inferior products.

I've only seen fourteen of Drezner's picks, and twelve of Simon's, but while I would put seven of Simon's choices on my list of best films (if one allows for substitution in the Hitchcock and Wilder director categories--Notorious and Sunset Boulevard for The Lady Vanishes and Double Indemnity), only two of Drezner's picks and one of his alternates would make it on my top twenty list.

Nevertheless, I don't agree that movies have generally declined in the past twenty years. Granted, some once-popular generes (such as the musical and the western) have all but disappeared but others (such as action and sci-fi) have come to maturity. Meanwhile, movies have become almost uniformly better-looking in the past twenty years. One can compare Ben Hur and Gladiator--both mediocre epics set in ancient Rome--but where the first features stiff camerawork and stagey sets, the second is more notable for how much the stunning recreation of Rome doesn't look like a stunning recreation of Rome. Meanwhile, films such as Amelie, Moulin Rouge! and (yes) The Matrix show that computer effects can be used not just to make bigger and better explosions, but also to create serious screen art.

All art is reflective of the era in which it is produced, but for some reason, this truism seems even truer in regard to movies. Films such as Say Anything, or Clueless for my generation, speak strongly to their contemporaries, but seem quaint and incomprehensible to an audience coming along five or ten years later (or an audience that came of age five or ten years earlier). This isn't a particularly new development--if you're under forty, try watching something from Doris Day's oeuvre, and at best you'll find it cute. At worst, changing culture will have made it downright offensive.

But when thinking about films from forty or fifty years ago, Doris Day and Rock Hudson aren't what we remember, because Doris Day and Rock Hudson are no longer what we watch. These movies speak to a cultural moment that no longer exists, and so have been rightfully forgotten. But when watching films from ten or twenty years ago, it's much harder to tell what we like because it speaks to our particular cultural neuroses, and what we like because it speaks to us as human beings and art lovers.

And for those who are interested, here's my list of the twenty greatest films of all time, in no particular order

1. The Godfather - Francis Ford Coppola (No explanation necessary)
2. Sunset Boulevard - Billy Wilder (Movies about movie stars usually suck. This one doesn't.)
3. Mulholland Drive - David Lynch (Ditto Dan on the most erotic love scene filmed in the past twenty years.)
4. The Silence of the Lambs - Jonathan Demme (Conrad may have coined the phrase "fascination of the abomination" but Hannibal Lector embodies it much more richly than Mr. Kurtz.)
5. The Princess Bride - Rob Reiner (How many other movies are worth memorizing in their entirety?)
6. Casablanca - Michael Curtiz (Another no-brainer.)
7. Notorious - Alfred Hitchcock (The perfect suspense thriller, and the camera work is Hitchcock's best.)
8. Singin' in the Rain - Stanley Donen/Gene Kelly (Not the best music, but some of the best dancing ever filmed.)
9. Lawrence of Arabia - Sir David Lean (Watching Peter O'Toole twirl around in his new desert robes is one of the great moments of cinematic history.)
10. Bringing Up Baby - Howard Hawks (It's really a toss-up between this and Arsenic and Old Lace for best screwball comedy)
11. It Happened One Night - Frank Capra (Clark Gable was forced to make this film by his studio, but he and Claudette Colbert are the quintissential romantic comedy couple.)
12. Moulin Rouge! - Baz Lurhman (A demonstration of More's Law--if some is good, more is better--in action. The results are stunning.)
13. Indochine - Regis Wargnier (Historical melodrama at its best.)
14. Trois Couleurs: Blanc - Krzysztof Kieslowski (Tough to pick one of the trilogy but this one is, I think, the most haunting.)
15. Metropolitan - Whit Stillman (Again, tough to pick one of his Yuppies in Love trilogy.)
16. Being John Malkovich - Spike Jonze (Hilarious, weird, and oddly touching.)
17. Dr. Strangelove, or How I Learned to Stop Worrying and Love the Bomb - Stanley Kubrick (Best anti-war movie ever.)
18. The Talented Mr. Ripley - Anthony Minghella (One of the few movie adaptations to surpass the book upon which it was based.)
19. Lord of the Rings: The Two Towers - Peter Jackson (Hard to pick the best of the trilogy when the third one hasn't come out.)
20. Dirty Pretty Things - Stephen Frears (My pick for best movie of 2003, though it may not stand the test of time. Absolutely gut-wrenching.)