Anxieties over the the high-speed "train to nowhere" in California.

Reported in the NYT.

I talk about the appellate argument in the Prop 8 case with Emily Bazelon.

The argument in the 9th Circuit Court of Appeals took place yesterday, and Emily and I gabbed about it this morning for Bloggingheads.

The oral argument in the 9th Circuit in the Prop 8 case is about to begin.

The case is Perry v. Schwarzenegger. You can watch live on C-SPAN. I'll update with comments soon.

UPDATE: You can read some details about the case here. I'll have some of my own impressions in a little while.

UPDATE 2: You can watch the whole oral argument here. The first hour of the argument dealt with the threshold question of standing. California Governor Schwarzenegger and Attorney General Jerry Brown were the original defendants in the case, and they have opted not to appeal. Proponents of Prop 8 (which banned same-sex marriage) need a way to intervene using some other party with a personal stake in the outcome or the decision of the district judge, finding Prop 8 unconstitutional, will be the final word on the subject.

It seems as though there should be appellate review, but the constitutional limits on federal court jurisdiction don't depend on how important it is for an issue to be heard. There are technical requirements, and it seems as though the plaintiffs' lawyers did a clever job of setting things up so a district court decision in their favor would be insulated from appellate review. But listening to the oral argument, I got the impression the judges thought it was too clever.

In the second hour, the substantive question boiled down to whether there was a rational basis for excluding gay people from marriage. The pro-Prop 8 side rested heavily on the fact that only heterosexual couples produce babies accidentally. But that has so little to do with the value of excluding gay people from the status of marriage. It's hard even to understand why reserving marriage to heterosexuals would make them do a better job of deploying their reproductive powers. Why should gay people, who aren't even the problem, bear the burden?

The high-speed rail boondoggle at its worst — in California.

Via Instapundit, Reason has the nauseating details:

The California High Speed Rail Authority is committed to breaking ground on a leg of the train that will serve passengers between the unincorporated town of Borden and the half-incarcerated town of Corcoran.

Corcoran!

Whether you call it the train from nowhere or the train to nowhere, nobody will be riding it even when it’s done. That’s not libertarian cant: The actual plan for the $4.15 billion leg is that upon completion it will sit idle until other sections of track are completed.

$4.15 billion!

Background: The CHSRA needs to break ground by September 2012 or lose $2.25 billion in federal funds. The U.S. Department of Transportation has for reasons of its own favored the sparsely populated Central Valley for this first leg of the thinly imagined high speed rail project. 

Reasons of its own? Can we get an investigation?

Meanwhile, in Wisconsin, we just elected a new governor whose central election promise was to say no to $810 million connect Madison and Milwaukee by high-speed rail:

Scott Walker has made no secret of his aversion to high-speed trains, but before he goes any further with his plans to derail the planned Milwaukee-Madison line, Walker might consider some earlier chapters in Wisconsin's transportation history. They indicate that the governor-elect could be putting his state in reverse.

As long as there has been a Wisconsin, residents have labored mightily to establish connections with each other and with the world beyond the state's borders. Although disputes often arose in working out the details, the general trend was unmistakable....

Connections! We're all about relationships among people.

The idea seems oddly nostalgic at first - why build passenger trains in the 21st century? - but it actually fits an emerging settlement pattern. Not in my lifetime but perhaps in my grandchildren's, and for better or worse, an interconnected megalopolis will sprawl from Benton Harbor, Mich., to Minneapolis-St. Paul. As the empty spaces fill in, there will be a demand for some form of transport that's faster than cars but has more frequent stops (and fewer exasperating waits) than airplanes.

The columnist — John Gurda in the Milwaukee Journal Sentinel — is imagining a megalopolis in the future and telling us what people then will want. But people don't even want trains now. We drive cars. Or we take planes. There's also the bus. True, a bus doesn't go at a speed in between the speed of a car and a plane, but come on. Pick one. Road or air.

But, anyway, we have a nice train in Madison:



A train and a Christmas tree in the Wisconsin State Capitol.

"California: The Lindsay Lohan of States."

"Listen up, California. The other 48 states—your cousin New York excluded—are sick of your bratty arrogance. You're the Lindsay Lohan of states: a prima donna who once showed some talent but is now too wasted to do anything with it."

Even California didn't want to legalize non-medical marijuana.

Prop 19 failed. In yesterday's Bloggingheads — the "Non-Obsolete Edition" — Matt Welch and I talked about the effort to legalize the so-called "recreational" use of marijuana, which is far less popular than the "medical" use. You can watch the whole segment here, but — I know these Bloggingheads things are long — I don't want you to miss the part where I connect the favoring of medical legalization to left-wing values that I despise. It's only 80 seconds:



Note that the "medicinal" use of alcohol — "self-medicating" — is considered especially bad. The good alcohol use is for personal pleasure — one might say the pursuit of happiness — and most certainly not out of a physical need. Isn't it odd that it's the other way around for marijuana?

***

If you watch the whole segment — 16+ minutes long, sorry — there's a lot of discussion of the way the federalism problem would work out if the state stopped criminalizing marijuana. It's a misnomer to say that would "legalize" marijuana, because the federal crimes still apply. It would still be a crime to possess, grow, or distribute marijuana. The federal government can't force state officials to carry out the enforcement of the federal law. (It can lure them into that role with conditions on spending, but it can't commandeer the state law enforcement personnel. That's Printz.)

As Matt notes, Eric Holder announced a few weeks ago, that if Prop 19 passed, federal drug agents would "vigorously enforce" the federal law in California. California's a huge state, and that would be damned hard to do. I suggest that Holder may have only said that to try to influence California voters to reject Prop 19, and Matt seems certain that was the reason. And that seemed to work.

It would have been quite chaotic if Prop 19 had gone the other way. In the 16+ minute clip, you can see that Matt loves the idea of the chaos that would destabilize everything with, perhaps, the ultimate result that the federal government would give up on its marijuana crimes. I, on the other side, resist the chaos. I don't think it would work well to have something appear to be legal and at the same time be a very real federal crime. Much as I like decentralized law and the benefits of federalism, where there is valid federal law, it supersedes state and local law. That is the constitutional structure.

"A kind of Marfa-meets-ganja art retreat north of San Francisco and a new economic engine for art philanthropy."

What?!

I love the way the paragraph I took that quote from has one hot link  — you know those links the NYT throws in that take you to other NYT articles? — and the link is on the word "marijuana." I know and you know what marijuana is, but what about Marfa? Eh. You either get the joke or you get that it is a joke... and move on.

Move on to the odd news about what would otherwise not be news — that you can make a lot of money growing and selling marijuana. But look! There's art in there. And pretty people. And it's medical marijuana...

At a going wholesale rate of $200 or more an ounce in the Bay Area for high-quality medical marijuana, it’s a lot simpler than raising money the traditional way, the project’s organizers point out. And — except for the nagging fact that selling marijuana remains a crime under federal law — it even feels more honest to the people behind Life Is Art. They see it as a way of supporting the cause with physical labor and the fruits of the land instead of the wheedling of donors, an especially appealing prospect in an economy where raising money has become more difficult than ever.

The nagging fact that selling marijuana remains a crime under federal law... which is so unenforced that pretty people pose in the New York Times with their pitchforks in American Gothic japery in the company of their big, sunlit marijuana plant. Tell me, how will it ever be possible to enforce those laws again? And if they are not going to be enforced, how can we accept the continual degradation of respect for the idea that it means something for an activity to be a crime?

In the Prop 8 case, Judge Walker has denied the motion to stay the judgment pending appeal.

So, unless a stay can be procured from the 9th Circuit Court of Appeals, you can get same-sex married in California beginning August 18th. Walker's opinion expresses doubt over whether there is standing to appeal, because the "state defendants" — the state's governor and attorney general — didn't oppose the stay. The remaining defendants, referred to in the opinion as "proponents" of Prop 8, may lack standing on their own to appeal. These defendants were permitted to intervene at the trial level, but that doesn't mean they have standing to carry the case forward to appeal. If the proponents can't get the state defendants to appeal, that may be the end of this case and Walker's opinion finding Prop 8 unconstitutional will be the last word in California. For now, the standing problem weighed against granting the stay pending appeal, because it undermined the likelihood of success on appeal.

The NYT has an article about Mickey Kaus and his Senate campaign, but...

... it's in the "Fashion & Style" section.

Getting to a peek at his living conditions seems to be a big point of the piece:

...his two-bedroom apartment in the Venice neighborhood.... Ikea furniture buried under a flurry of political tomes, magazines, printouts, cellphone manuals, and two-year-old Christmas card photos starring his friends’ children. A red laptop balances on a stool. 

A stool or a DAVE?

A small TV sits on a table. In the kitchen, spilled coffee grounds share counter space with a spread of vitamins and nonalcoholic beer....

He offers his guest water in a disposable plastic cup (“I hate doing dishes,” he apologizes). 

There's stuff about his background — jumping from a law career into mainstream journalism and then to political blogging. But the campaign itself, per the NYT, is "quixotic" and "insane" with "grim" prospects. The writer, Janelle Brown, catches him complaining "I’m completely allergic to Washington, D.C. I was literally developing asthma." (He worked at The New Republic and lived in Washington before retreating to his homeland, California.) She needles him by pointing out that the Senate meets in Washington. He "grimaces" and backfills with "I’ll invest in a lot of air-purifying technology."

Then Brown makes one of the funniest gaffes ever in the NYT:

For a solitary blogger, Mickey Kaus is astonishingly social and well connected: It’s difficult to find a writer or politico in Los Angeles who hasn’t knocked boots (or opinions) with Mr. Kaus at a party....

That's a lot of sexual intercourse! (Glenn Reynolds has already pointed out this gaffe.)

We eventually get to his positions on the issues, and really, Mickey can't complain about this. When does a candidate with no chance at winning get written up in the NYT? They can't be covering the political positions of everyone who qualifies to be on the ballot, even in a big state. You have to go in by the "Style & Fashion" door.

The official portrait of Jerry Brown (from his old governor days).

Interesting, no? I ran across that at Wikipedia as I was looking up some things this morning. I wasn't checking up on his new campaign for governor. I was trying to remember what had happened in the 1992 Democratic primaries. We'd been talking about Bill and Hillary Clinton. (Would we be better off now if Hillary were President?) And I remembered that back in 1992, early on in the primary season when there were a lot of candidates, my shorthand reason for rejecting Bill Clinton was: He's a Republican. Then I was trying to remember who I voted for in the Wisconsin primary, which I knew was late, after many of those candidates had dropped out. Who was the last man standing in the 1992 Democratic primaries challenging Bill Clinton? It was Jerry Brown. Did you remember that?

As the press now focused on the primaries in New York and Wisconsin, which were both to be held on the same day, Brown, who had taken the lead in polls in both states, made a serious gaffe: he announced to an audience of various leaders of New York City's Jewish community that, if nominated, he would consider the Reverend Jesse Jackson as a vice-presidential candidate. Jackson, who had made a pair of anti-Semitic comments about Jews in general and New York City's Jews in particular while running for president in 1984, was still a widely hated figure in that community and Brown's polling numbers suffered. On April 7, he lost narrowly to Bill Clinton in Wisconsin (37–34), and dramatically in New York (41–26).

Here's a New York Times report, from just before the primary:

Mr. Clinton yesterday appeared to be straddling the divisions between the two groups [blacks and Jews], at once putting an advertisement on black radio stations touting his civil rights record and accusing Mr. Brown of pandering to blacks by saying he would choose the Rev. Jesse Jackson as his running mate.

"I think that we should not play politics with the Vice Presidency, even though it can be a vote-getter," Mr. Clinton said....

At a meeting with a Jewish group on Thursday, Mr. Brown was repeatedly asked how he could expect to win the Jewish vote after embracing Mr. Jackson, who referred to New York City as "Hymietown" in the 1984 Presidential campaign.

For his part, Mr. Brown has tried to appeal to appeal to black and Jewish voters alike with a television advertisement that criticizes Mr. Clinton for playing golf at an all-white country club. Yesterday, Mr. Clinton attacked Mr. Brown for the commercial, which he said distorted his record on civil rights.

"Let me tell you something," Mr. Clinton said. "A few years ago Jerry Brown said the real solution to racial problems was for the white boys to teach black boys how to read and for black boys to teach white boys how to fight. Now, I could have run an ad on that and made him look like a bigot."

Ha ha. I could have run an ad on that and made him look like a bigot. He just said it and got it quoted as if he were refraining from using it. Hilarious. I cannot remember if, in the end, I voted for Clinton or Brown. Probably Brown. What an amazing career that man has had. Astounding that after all these years, he's worked his way back to the California governorship.

And, for an unusual guy, an unusual official portrait, by Don Barchardy.

"What helped bring Whitman to earth, he said, was what vaulted her skyward: money."

"Except in this case it was Poizner's money — the $24 million he has put into his campaign."

What might lead to the legalization of marijuana...

... the need for something more to tax.

"After years of litigation, endless depositions, the fictionalized portrayal of this lawsuit and its litigants on television, and innumerable histrionics, this Court is left to conclude that with this lawsuit, to quote Gertrude Stein, 'there's no there there.'"

And so the federal district judge would shut the drawer on the 1996 scandal known as Filegate.

While this Court seriously entertained the plaintiffs' allegations that their privacy had been violated  — and indeed it was, even if not in the sense contemplated by the Privacy Act — after ample opportunity, they have not produced any evidence of the far-reaching conspiracy that sought to use intimate details from FBI files for political assassinations that they alleged. The only thing that they have demonstrated is that this unfortunate episode — about which they do have cause to complain — was exactly what the defendants claimed: a bureaucratic snafu.

By the way the there that wasn't there for Gertrude Stein was Oakland, California, which really does exist. She just didn't think much of it. I'm not sure what that says about Filegate.

Ever since Gertrude Stein wrote that there was “no there there” during a return trip to her childhood home in Oakland, California, her words have been distorted to imply that Oakland was a “nowhere,” a dissing along the lines of Neil Young’s “Everyone Knows This Is Nowhere,” which was funny for Young, a transplanted Canadian singer, to write for an U.S. pop market, because Young had really been a Californian before he transplanted himself to California, as Stein had been really been an American in Paris long before she left the U.S., and returning to her “there is no there there,” she later clarified that the Oakland of her childhood was gone, she was commenting on her great theme, not just hers, of course, a great thread in American literature concerning place and memory, we all lose the place of our childhood, and in adulthood clutch that place, or more accurately, a complex tangled image of that place, close to our bosom, as Cather did with her....

Hey, wait a minute. I see what he's doing there. That sentence goes on for 1,316 words more. Essay dismissed.

The California Supreme Court upholds the state's same-sex marriage ban.

Proposition 8, approved by California voters, stands.

"'I guess it depends on what the meaning of the word "is" is,' observed one of the justices, a sly reference to Starr’s previous job."

"Starr did not take the bait. He merely smirked and carried on with his argument."

The justices were particularly interested in whether Prop 8 invalidates some 18,000 nuptials performed between the court’s initial ruling and the passage of the initiative. And they zeroed in on the precise wording of the proposition, which read: "Only marriage between a man and a woman is valid or recognized in California."