Archive for April, 2010

Warty Bliggins and the Universe

April 28, 2010

We have a small pond with a recirculating pump in our backyard. A  group of toads, thinking that we created the pond for their personal pleasure, use it each spring to mate.

About ten of them are here now and they spend their evenings talking about things. Their callings sound exactly like a train rounding a tight corner when the inside-wheel flanges scrape the rails. I guess toads find it romantic, but it reminds me  of fingernails scraped across a blackboard or Richard Nixon assuring the nation that we weren’t bombing  Laos and Cambodia.

The toads reminded me of Warty Bliggins, the toad introduced by the early 20th Century writer Don Marquis, who we quoted in this space last week. Marquis was a newspaperman who wrote a column for the New York Sun. Actually, he didn’t write it, Archy the Cockroach wrote it. Each night Marquis left a piece of paper in his typewriter and Archy would come in after everybody had gone home and write a poem in free verse, which was popular in those days of Prohibition and newspapers. Because Archy was a cockroach, the only way he could type was by throwing himself on one typewriter key at a time. He couldn’t do capital letters because he couldn’t hold down the shift key at the same time he flung himself at a letter. He also didn’t bother with punctuation marks, so when you read one of his poems, it is best to read them out loud. That way you can keep track of who is talking.

Warty Bliggins, as I said, was a toad and Archy has a conversation with him:

i met a toad
the other day
by the name
of warty bliggens
he was sitting under a toadstool
feeling contented
he explained that when the cosmos
was created
that toadstool was especially
planned for his personal
shelter from sun and rain
thought out and prepared
for him

Confident that the universe was prepared especially for him and certain he lived at the precise center of the universe, Bliggens thought:

the earth exists
to grow toadstools for him
to sit under
the sun to give him light
by day and the moon
and wheeling constellations
to make beautiful
the night for the sake of
warty bliggens

Archy the cockroach asked the toad why he was so certain of this and the toad tells him he is asking the wrong question. The correct question to ask, according to Bliggins, is what has the universe done to deserve him?

Archy leaves us with this thought:

if I were a
human being I would
not laugh
too complacently
at poor warty bliggens
for similar
have too often
lodged in the crinkles
of the human cerebrum


The news that the current occupant of the governor ‘s office of Texas shot and killed one of God’s dogs  also reminds me of Warty Bliggens. Perhaps the governor should now be called “Governor Bliggins,” instead of “Governor Perry.”


Insects and Justice

April 22, 2010

With the President about to make another appointment to the Supreme Court, we’re hearing that word “empathy” again as if it were some terrible thing.

Well, today is the 40th “Earth Day” and a piece at the New Yorker, where they are celebrating the 85th anniversary of that excellent magazine, reminded me of an insect’s view of empathy and of justice as imagined by Don Marquis.  The New Yorker is running a series of articles taken from its  eighty-five years of publication. Today, they feature Rachel Carson. Her book, “Silent Spring”, marked the beginning of public awareness that Mother Earth requires attention. The Environmental Protection Agency has published an official history in which it says that its mere existence is the “extended shadow of Rachel Carson.”

Rachel Carson

The first publication of “Silent Spring” came in the pages of the New Yorker which ran three extended excerpts before it was published in 1962. In the first, Carson detailed what happened at Clear Lake, California. Clear Lake was a popular fishing destination that also constituted perfect habitat for billions of little gnats that annoyed the fishermen. Thinking it would be good to rid the lake of those pests, the authorities decided to spray the lake with DDD, a close cousin of DDT. Three times they sprayed and millions of gnats died.

Unfortunately so did the Western Grebes.

Western Grebe

“The following winter months brought the first intimation that other life was affected; the western grebes on the lake began to die, and soon more than a hundred of them had been reported dead. At Clear Lake, the western grebe is a breeding bird and also a winter visitant, attracted by the abundant fish of the lake. It is a bird of spectacular appearance and beguiling habits, building floating nests in shallow lakes of the western United States and Canada…. Following a third assault on the ever-resilient gnat population, in September, 1957—again in a concentration of one part of DDD to fifty million parts of water—more grebes died . . . .”

By now, we know the rest of the story. As Carson wrote,

“Water, of course, supports long chains of life – from the small-as-dust green cells of the drifting plant plankton, through the minute water fleas, to the fish that strain plankton from the water and are, in turn, eaten by other fish or by birds, mink, raccoons, and man himself, in an endless transfer of materials from life to life. We know that the minerals necessary for all these forms of life are extracted from the water and passed from link to link of the food chains.”

The DDD sprayed to kill the gnats went to the fish where it concentrated and then to the grebes which ate the fish and then died.

As I said, all this reminded me of archy the cockroach’s complaint in the poem by Don Marquis called, “Pity the Poor Spider.”

I will admit that some

of the insects do not lead

noble lives but is every

man s hand to be against them

yours for less justice

and more charity


The part of the Carson piece in the New Yorker that you can read without a subscription is here. The entire piece requires a subscription but it’s worth it. Subscribe to the magazine and you get access to the entire eighty-five years of the New Yorker, every article and every cartoon. We read around in back issues the way a dog eats dinner.

What’s more, the New Yorker remains true to its environmental concerns. Elizabeth Kolbert picked up the Carson mantle and carries it forward.

The Western Grebe photo is by Dominic Sherony and graciously made available through creative commons. The photo of Rachel Carson is her USFWS official portrait and is in the public domain.

Supreme Court Short-Listed!

April 19, 2010

Justice Stevens in 1976

Good news! I’ve been short-listed for Justice John Paul Steven’s seat on the Supreme Court! Five people have now said that I would be a good replacement for him and, you have to admit, that’s a pretty short list. I’ve left room at the top for President Obama to add his name.

For those of you who know me personally, the FBI will be doing the necessary background check and an agent will soon arrive at your door or call you. Here are some helpful phrases to help you with the interview: “great veneration for the law,” “highest personal standards,” “unquestionable moral purity,” “great personal modesty,” “humility,” “genius,” “sleeps with his copy of the Constitution under his pillow.”

And most important, “finest legal mind in the country.”

Of course, I could name five lawyers in as many seconds who think I’m a dolt, but I intended for them to think that, you see. Sometimes it is a good thing when your opponent underestimates you. Think of the French attitude about the English before Agincourt or King George III’s dismissive ideas about American colonists.

President Ford said, at the time he nominated Justice Stevens, that he was looking “for the finest legal mind in America.” That was not entirely accurate, of course. If the finest legal mind in America in 1975 had belonged to a Democrat, I imagine that President Ford would have begun a search for the second-finest legal mind in America.

Still, that’s a pretty good criteria for a President to use. Mostly they don’t, but they ought to.

A good case can be made that Ford did get the finest legal mind in America in 1976 when he picked Justice Stevens. Ford himself certainly thought so. Toward the end of his life Ford said that he was happy if his entire presidency was judged by that one act of selecting John Paul Stevens for the Supreme Court.

Justice Stevens’ retirement marks the end of an era in this Nation. He is the last World War II veteran serving in high office in Washington. When he leaves this summer, none will remain.

Admiral Isoroku Yamamoto

To Admiral Isoroku Yamamoto’s great misfortune, the Navy recruited the mind of John Stevens to be a cryptologist. He joined and, with orders to report to Pearl Harbor, went on active duty on December 6, 1941.

Nobody underestimated Admiral Yamamoto who, you will remember, was the Commander-in-Chief of Japan’s Combined Fleet. Knowing that Japan could never win a protracted war with the United States (He had lived in the U.S. and studied at Harvard) Yamamoto designed Japan’s strategy of delivering a knockout blow to the U.S. Navy in a surprise attack at Pearl and then bringing the remnant of the U. S. fleet to a decisive battle. Yamamoto hoped, but apparently didn’t really believe, that two convincing naval defeats would bring the U.S. to the bargaining table. It didn’t work, of course. The U.S. won the Battle of Midway, but it is worth remembering that Midway was a close-run thing for a while.

After Midway, Yamamoto remained in charge of the Japanese Navy and was revered by his sailors and by the Japanese people. His was the finest military mind in Japan.

Last Photo of Admiral Yamamoto Alive

Justice Stevens spent the entire war stationed at Pearl, reading the Japanese military’s mail. He worked for Admiral Layton, the Navy’s chief intelligence officer on Admiral Nimitz’s staff. Stevens was the junior officer who discovered Yamamoto’s plans to visit forward military installations in the Solomon Islands. Stevens reported Yamamoto’s precise itinerary, including what planes would be flying escort.

President Roosevelt personally ordered an ambush. Sixty-seven years ago yesterday, a squadron of P-38s attacked and Admiral Yamamoto died.


UPDATE:  Here, from an editor at the Chicago Tribune who is writing a biography of Justice Stevens, is a more detailed account of his war service. It differs in detail from other published articles on which I based this post.

Judicial Temperament

April 11, 2010

Justice Stevens made it official last Friday: He is retiring from the United States Supreme Court this summer.  I suppose and I expect that – once again – the President of the United States will, as each of them has during my career at the bar, not appoint the most qualified person available:  The person whose veneration for the law is exceeded only by his titanic intellect, intuitive grasp of justice, and personal humility and modesty.  In these general, vague terms, I refer to myself.

And, since the President will not appoint me, I will have a great deal to say about who he ought to nominate in my stead.

But right now, I expect you are a little tired of all the pundits weighing in on the subject. One of them, I think it was Dahlia Lithwick, wrote that guessing about who a president will nominate to the Supreme Court is, for political pundits, like a pie eating contest: You eat everything you see as fast as you can until you can’t eat any more. So, instead of inflicting more of that on you today, I thought a little humor might be in order.

In England, it is a common practice for judges to comment on the evidence before a jury retires to consider its verdict. While not illegal in the United States, judges seldom do it. Without further ado, here is an example of a judge who lacks “judicial temperament” and should not sit on the Supreme Court. (The piece has sound and is about seven and a half minutes long. You’ll have to click on it twice, first on the arrow, then on the link in the black screen that appears.)

The Correct Spelling of Chile

April 4, 2010


United States v. Dowdy

Judge Henbane writing for the Court:

Defendant Maureen Dowdy is a columnist for the “New York Sun” newspaper.  Indicted and tried for misspelling the word “chile” in her columns, a jury found her guilty and the lower court sentenced her to seventy years at hard labor.  She appeals her conviction and sentence.

During the years that Defendant Dowdy was employed by the newspaper, her column was read widely throughout the nation. From time to time she used the word “chile” in her column but deliberately misspelled it, writing “chili[sic].” Indeed a plague of misspellings of “chile” afflicted the land, entrapping many innocents into spelling the word wrongly. One study indicated that 47 per cent of the adult populace habitually misspelled the word. See, Posner, 16 Jr. of Law and Econ. 344.

Confronted with this crisis, Congress acted; passing the law under which defendant Dowdy was arrested and prosecuted.  99 U.S.C. Section 0000045, makes it a felony to misspell “chile.”

Wrong. Abysmally Wrong

In her column, published by her newspaper, defendant questioned the wisdom of the law.  In the columns she deliberately and flagrantly misspelled chile repeatedly, using the felonious “chili.”  The jury quite properly convicted her.  The very learned trial judge imposed the 70-year sentence and this appeal resulted.

The defendant seeks to avoid her just criminal conviction by arguing that the statute making it a crime to misspell “chile” is unconstitutional because it violates her right to Free Speech and the right of a Free Press.  As far as we can tell, this is the first time in the history of the Republic that someone has seriously suggested there is a constitutional right to misspell.

The First Amendment to the Constitution of the United States provides that Congress shall make no law “. . . abridging the freedom of speech, or of the press. . . .” The Amendment speaks only of protecting free speech and a free press.  No where does it protect misspelled speech.  As Justice Scalia is fond of noting, “The Constitution is a legal document that says some things and doesn’t say others.” It doesn’t say that misspelling ordinary words is a constitutionally protected right.

If the Founding Fathers had wanted to protect misspelled speech they could easily have done it, simply by adding two words to the Amendment.  They could have prohibited Congress from abridging the right to “free or misspelled” speech.  They did not.

The defendant tries to get around this obvious conclusion by reminding us that the Fathers constantly capitalized words improperly.  For instance, the Preamble of the Constitution consists of only one sentence, which is fifty-two words long.  Sixteen of the words, more than 30 percent, are capitalized.  Defendant argues that this flagrant misuse of capitals constitutes misspelling and proves that the Founding Fathers intended to protect poor spellers and bad spelling.  This is an argument about insulting the Founding Fathers, not about the merits. Even a cursory review of their letters and other writings establishes that they were well-educated people suffering only from ignorance about chile which was not widely available in the East at that time. For that matter, it still isn’t. Just try to find some Hatch Big Jim chiles in Washington, D.C. or New York City.

Defendant also calls our attention to the fact that many great writers of English were chronic misspellers.  We’ll assume that’s true. It has to be or her goose is cooked. She cites, as one example, Shakespeare’s abominable spelling.  Shakespeare frequently misspelled his own name. No matter. Shakespeare was not a citizen of this country and therefore not bound by our laws.  If Shakespeare were alive today and living here, we would send him to jail in a New York minute if he couldn’t decide how to spell his own name or misspelled “chile.” In fact, we might send him to jail anyway. Hamlet takes far too long to make up his mind.

Six Known Shakespeare Signatures

Nor is it any help to defendant that loosely educated people cannot spell well.  Imagine what would happen to our language and Nation if people were free to misspell.  Teachers could no longer have spelling tests, newspapers would be unreadable, blogs incomprehensible, and no one would have the slightest idea how to spell “chile.”  Children would never learn the wise and venerated rule, “i” before “e” except after “c” [and after the “l” in “chile.”] The desire to misspell is not the power to misspell as long as this court sits.

Finally, defendant resorts to that last refuge of all such scoundrels, the dictionary.  She cites the American Heritage Dictionary of the English Language (3rd ed).  There we see an astonishing thing.  We see the word “chile” misspelled.  But the fact that the editors of the American Heritage Dictionary are criminals too is no help to Ms. Dowdy.  There are no free throws in criminal trials and the fact that other people may also have violated the statute is not a defense for Ms. Dowdy’s own illegal conduct.

This court has notified the appropriate authorities and we are confident that the editors of any dictionary misspelling “chile” will soon be in jail along with Ms. Dowdy. Perhaps they will have spelling bees to pass the time.

The judgment and sentence are affirmed.