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[This post was originally published on The Living Room Tumblr.]

Above is a “word cloud” by Wordle, created via manipulation of the CSV file included in my personal Twitter archive, showing the 350 most frequently used words in the 79,787 tweets that I published – “new-style retweets” excluded – between August 26, 2008 and July 25, 2013. You can get a closer look here or here.

A few thoughts:

  • “PANIC” is in its place of honor, exactly as you’d expect. That giant word represents 4,832 uses of “PANIC” (4,596 in all caps, 176 in all lower case, and 60 in sentence case), or roughly 3.2 #PANICs per day since my first-ever “PANIC” tweet in June 2009. (First with hashtag? Super Bowl Sunday 2010. Bonus: Tim Tebow!) And that count is without including such variations as “PANICKING” (16 uses), “PANICKED” (5) and “PANICs” (4), not to mention “PAAAAAANIC” (3), “PAAAAAAANIC” (4), and of course “PAAAAAAAAANIC” (2). Then there are the many “compound hashtags” including PANIC, from the frequently used sub-memes like “WACPANIC” (31) and “LDSPANIC” (66) to one-offs like “typoPANIC,” “trafficPANIC” and “unenforcablecontractPANIC” (1 apiece), just to name a few. If every single variation were counted, “PANIC” would be even bigger than it is. But I’d say it dominates the word cloud enough as is. 🙂
  • “DOOM” is, to my mind, surprisingly small. You might not even notice it at first; it’s just a bit to the right of “@brendanloy,” in purple. Then again, I haven’t been using it as long as “PANIC.” Having basically stolen the “DOOM” meme from @CorcoranNYC just last year during his annual summer hiatus, I’ve already tweeted the word 1,149 times (all caps 845 times, no caps 266, sentence case 38). Give it another year or two, and it’ll look a lot bigger in my word cloud. That said, “DOOM” suffers, moreso than “PANIC,” from the fact that variations with extra letters go uncounted, such as “DOOOOM” (18 uses), “DOOOOOM” (38), “DOOOOOOM” (33), “DOOOOOOOM” (30), etc.
  • “@brendanloy” is an unusual one; you may be wondering why I talk to myself so often? The truth, as I explained a few weeks ago to @KilroyFSU (to whom I should apparently be Twitter-gay-married, considering I’ve @mentioned him more times, 2,199, than I have my wife @MileHighBecky, 1,851), is that my handle shows up frequently in my tweets when I old-style retweet someone else’s tweet mentioning me, and then add a comment before the “RT” (often “#PANIC!” or some variation thereof). I apparently do this quite often.
  • “USC” (located in between “PANIC” and “game”) is, as my Trojan tweeps will happily note, much bigger than “Notre” (right above “BREAKING”) or “Dame” (a bit southeast of “now”) or “ND” (several words north of the “S” in “@KilroyFSU”). This is partly because I always use the same term for “USC” – I virtually never call it “Southern California,” for instance – whereas I use “ND” and “Notre Dame” pretty interchangeably (as you can see).
  • “Boise” (below “@MelissaTweets”) is pretty much equal size to “USC,” which is impressive, considering I have no personal connection to the place. I blame the “BCS” – which is located underneath “Boise,” appropriately enough.
  • “@brando” (above “@MileHighBecky”) and “minich" (between ”@MileHighBecky" and “@kesgardner”) show up as separate entries because Wordle considers the _ character in @brando_minich’s name to constitute a word break. Heh.
  • “Now” probably appears in my tweets in a lot of different contexts, but I’ll give some of the credit for its largeness to Wolf Blitzer, RIGHT NOW. “Heh,” right under it, obviously gets credited to Glenn Reynolds.
  • “Obama” is way bigger than “Romney.” Ha ha. But both of them dwarf “Palin,” which is a teeny tiny word near the bottom left. (That’s largely because I didn’t really start to use Twitter regularly until well after the 2008 election.) The 387 references to “Palin” place her just barely above the cutline for inclusion in the word cloud, which seems to be around 325 or so.

Those are some of my observations offhand. What do you notice?

Incidentally, I say “350 most frequently used words,” but I should add some caveats to that. Wordle automatically excludes a bunch of extremely common words like “a” and “the,” and also excludes numbers. In addition, I manually excluded the following words (by using find & replace to delete all instances of them from my text list of tweets before I pasted that list into Wordle): RT, MT, one, just, like, and get. Without these exclusions, the word cloud would look like this:

twitter-word-cloud-all-words

Rather less informative, don’t you think?

I should also confess that, in constructing the word cloud, I engaged in one bit of blatant cheating. On my initial attempt, there was no reference at all to my “The SEC: it’s a WAR!!!” meme, aside from the tiny word “SEC” hidden in there somewhere. The main reason for this is that I sometimes use the full words, while other times I use compound-word hashtags (e.g., #itsaWAR or #theSECitsaWAR). Thus, there were 252 instances of “itsaWAR,” 83 instances of “theSECitsaWAR,” and 159 instances of “WAR” (counting it only when it’s in all caps) – numbers which are not quite large enough, individually, to “make the cut” (which, as I said, seems to be around 325 or so). Compounding the problem, there are many instances where I play around with the meme in all sorts of different ways, using compound hashtags to either say “[something]itsaWAR” or “theSECits[something],” as you can see from these word-count snippets:

theSECits-wordcount1 theSECits-wordcount2

It seemed unfair for this core Brendan Loy meme to be effectively excluded from my word cloud because of its diversity. So, as I said, I cheated. (How appropriate for the SEC. Ha! #trollin)

Again using find & replace in my textual tweet list, I put an extra space before every instance of “itsaWAR,” so that phrase would show up as a separate word even when used at the end of a compound hashtag. (There were 770 instances of the phrase, in its various contexts.) I also replaced all 88 instances of “it’s a WAR” with “itsaWAR.” And then I put a space before and after “SEC” in each instance of the phrase “theSEC” (of which there were 205).

The result is what you see above: the word “SEC” is pretty big (it’s in between “game” and “think,” right above “Denver”), and “itsaWAR” is also noticeable (below “PANIC,” in between “@brendanloy” and “@MileHighBecky”).

On FISA, the NSA, and the Rule of Law

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[This post was originally published on The Living Room Tumblr.]

Later today, the U.S. House of Representatives will vote on an amendment that would repudiate and defund the executive and judicial branches’ secret, lawless abuse of the Patriot Act’s “business records” provision. It needs to pass.

I don’t use words like “lawless” lightly, nor do I regularly throw around allegations of “tyranny.” I’m a squishy centrist, not a firebrand radical! But I feel very strongly about this issue, as my followers on Twitter already know.

More on what I mean by that in a moment. But first: Here’s the text of the amendment, which is bipartisan – proposed by Justin Amash (R-Mich.), and co-sponsored by, among others, John Conyers (D-Mich.) and Jared Polis (D-Colo.). It says simply:

None of the funds made available by this Act may be used to collect tangible things pursuant to an order under section 501 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861) if such things do not pertain to a person who is the subject of an investigation described in such section.

Here is Rep. Amash’s fact sheet. I urge you to call your congressperson and make sure they are voting “Yes.” (I tweeted at mine, and will follow up with a call.)

For me, this issue isn’t just about metadata spying; it’s about the constitutional order and the rule of law. I believe the Obama Administration (like the Bush Administration before it) and the FISA Court are behaving in a fundamentally unlawful manner. Passage of the Amash amendment would explicitly tell them to stop it. Conversely, failure to pass the amendment would be widely seen, fairly or unfairly, as an implicit ratification of what they are doing.

“What they are doing,” in my view, is unlawfully gutting – in secret – the limits on their power that Congress enshrined into law when it passed the “business records” provision of the Patriot Act. While I don’t doubt the good intentions of the people involved, what has occurred amounts to a form of classified collusion between the executive and judicial branches, arrogating to themselves an effectively unlimited power of metadata-collection power under 50 U.S.C. § 1861, despite the fact that  § 1861 itself imposes limits on that power.

To be clear, my primary argument is not that the NSA’s FISA-authorized spying on every American’s telephone metadata violates the Fourth Amendment. I personally believe that it should be deemed to do so, but I recognize that current precedents suggest it probably does not. Fine. Put that aside for a moment. Instead, my focus is on a question, not of constitutional interpretation, but of statutory interpretation. And whatever you think of the constitutional question – or, for that matter, the underlying substantive question (i.e., is this spying program wise or unwise?) – I urge you to join me in focusing on the statutory issue for a moment. Because, for the life of me, I cannot see how there’s a colorable argument that the Obama Administration and the FISA Court are doing anything other than blatantly violating the law in their (secret!) interpretation of the relevant statute.

The statute I’m referring to, and the statute Rep. Amash wants to amend, is the so-called “business records” provision of the Patriot Act, 50 U.S.C. § 1861. More specifically, § 1861(b)(2)(A). The pertinent text states:

Each application [to the secret FISA court for an order authorizing metadata collection] under this section— …

(2) shall include—

(A) a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, such things being presumptively relevant to an authorized investigation if the applicant shows in the statement of the facts that they pertain to—
(i) a foreign power or an agent of a foreign power;
(ii) the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or
(iii) an individual in contact with, or known to, a suspected agent of a foreign power who is the subject of such authorized investigation; and
(B) an enumeration of the minimization procedures adopted by the Attorney General under subsection (g) that are applicable to the retention and dissemination by the Federal Bureau of Investigation of any tangible things to be made available to the Federal Bureau of Investigation based on the order requested in such application.

(Emphasis added, natch.)

Those “minimization procedures” are what you’ve read a lot about in the press, if you’ve followed this issue: the idea that the information obtained is placed into some sort of sealed database, which then can’t be queried without another FISA order, with more stringent requirements. In other words, the NSA is hoovering up all this information, but it supposedly can’t look at it without going back to the FISA court. I have deep concerns about the long-term viability of such a “Chinese wall” within a single branch of government – in my view, such “minimization procedures” practically scream “abuse me!” – but, again, let’s put that aside for the moment. Let’s assume, for the sake of argument, that the minimization procedures are completely adequate, and that no abuse is taking place, or will ever take place. (Riiiiight.) Even making such an implausible assumption, my statutory argument would still stand. I would still believe that the executive and judicial branches are acting unlawfully.

Why? Because of the pesky word “and” at the end of § 1861(b)(2)(A)(iii). The statute requires that the government’s application for a FISA metadata-collection order “shall include" both the "minimization procedures” required by subsection (B) and the “relevance” showing required by subsection (A). Thus, by law, according to this duly enacted Act of Congress, the NSA can’t just put anything it wants into a secret database and worry about relevance later, when it queries that database. The NSA can only put things into the database in the first place if those “things…are relevant to an authorized investigation.” And the FISA court can only approve the NSA’s application, and issue the requested order, “if the judge finds that the application meets the requirements” of the statute, including the “relevance” requirement.

That’s not my opinion; it’s what the Patriot Act says. This is the governing statute, and its text is crystal-clear on this point: the initially collected information must be “relevant,” or no metadata-collection order may lawfully issue. End of story.

So, how have the executive and judicial branches (secretly) interpreted this statutory limit on their power? Absurdly, indefensibly, and lawlessly. From the recent New York Times article headlined “In Secret, Court Vastly Broadens Powers of N.S.A.”:

Under the new procedures passed by Congress in 2008 in the FISA Amendments Act, even the collection of metadata must be considered “relevant” to a terrorism investigation or other intelligence activities.

The court has indicated that while individual pieces of data may not appear “relevant” to a terrorism investigation, the total picture that the bits of data create may in fact be relevant, according to the officials with knowledge of the decisions.

First of all, let me pause and point out something very important. The very notion that we’re learning what the law of the land is from “officials with knowledge of the decisions” – i.e., the fact that We The People do not have access to the governing laws of our nation, because we are forbidden from having “knowledge of the decisions” that determine how the laws are authoritatively interpreted – is deeply disturbing, to say the least. While certain facts must at times be kept secret because we’re battling a cunning and deadly foe in Islamist terrorists, the law itself must never be kept secret, or we no longer have the “republic, if you can keep it” that Ben Franklin promised us.

Unfortunately, that secret-court business is baked into the cake. It was written into the statute when Congress passed the Patriot Act. It desperately needs to be fixed, but for now, it’s the law.

What isn’t the law is what the Obama Administration and the FISA Court have done with their secret powers. If the Times’s “officials with knowledge of the decisions” are accurately summarizing the decisions, those powers are unquestionably being abused. The notion that “while individual pieces of data may not appear ‘relevant’ to a terrorism investigation, the total picture that the bits of data create may in fact be relevant” is a completely indefensible interpretation of § 1861(b)(2)(A). That is not what the statute says. It is not what the statute means. It is not the law.

In describing what sort of “tangible things” can lawfully be collected, the statute doesn’t say the government must have a passing suspicion or vague hope that “the tangible things sought, when mixed with other tangible things, might create a total picture that may in fact be relevant to an authorized investigation.” On the contrary, it says the government must have “reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation.” That may be a weak standard, but it’s a standard nonetheless, and it can’t simply be ignored, or effectively read out of the statute. Yet that’s what happened.

The interpretation given to that statutory language by the Obama Administration and the FISA Court, as reported by the Times and others (and as made rather obvious by the leaked Verizon order), cannot be reconciled with the statutory language itself. It can only be arrived at by gutting the statute’s “relevance” requirement to the point of making it meaningless.

I’m no constitutional lawyer, nor did I stay at a Holiday Inn Express last night. But I know a little bit about principles of statutory interpretation, both from studying them in law school and from citing them many times in my civil litigation practice. And one of the core principles of statutory interpretation is that, if at all possible, judges are supposed to give meaning to every word and phrase and provision of the statute they are interpreting. Occasionally there are irreconcilable inconsistencies that have to be addressed, but barring that, judges aren’t supposed to just disregard a portion of the statute if they deem it inconvenient, or gut a statutory provision to the point where it no longer has meaning. Relatedly, they also aren’t supposed to interpret statutes to create “absurd results,” if such an outcome can possibly be avoided.

Here, the FISA Court – in rubber-stamping the Bush and Obama Administrations’ non-compliant applications to indiscriminately collect metadata – has violated both of these principles. It has effectively read the “relevance” requirement out of the statute, and it has created an absolutely absurd result.

If the NSA is allowed to, potentially, collect every American’s phone metadata, then, quite obviously, there is no effective “relevance” limit on its collection of such information. How can there possibly be “reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation” when “the tangible things sought” are the phone records of each and every Verizon customer (or AT&T customer, or Sprint customer – whatever). Answer: there cannot be such “reasonable grounds,” unless you believe that literally every piece of metadata in existence is potentially “relevant” (because “the total picture that the bits of data create may in fact be relevant”), in which case the “relevance” provision has lost all meaning and serves no purpose in the statute. Thus, to interpret the statute in such a fashion is to violate the core principle of statutory interpretation that says you must attempt to give meaning to every word, phrase and provision.

This is not a debatable interpretation, in my judgment. It is simply a wrong interpretation. The FISA Court (or FISA-gûl, if you prefer) has adopted the erroneous, indefensible construction of 50 U.S.C. § 1861(b)(2)(A) urged by the Bush and Obama Administrations in secret, one-sided, non-adversarial proceedings.

I believe this incorrect interpretation would be struck down by the U.S. Supreme Court, if it ever got there – but the deck is stacked against allowing that to happen, as the Times expains:

The 11-member Foreign Intelligence Surveillance Court, known as the FISA court, was once mostly focused on approving case-by-case wiretapping orders. But…it has quietly become almost a parallel Supreme Court, serving as the ultimate arbiter on surveillance issues and delivering opinions that will most likely shape intelligence practices for years to come …

Unlike the Supreme Court, the FISA court hears from only one side in the case — the government — and its findings are almost never made public. A Court of Review is empaneled to hear appeals, but that is known to have happened only a handful of times in the court’s history, and no case has ever been taken to the Supreme Court. In fact, it is not clear in all circumstances whether Internet and phone companies that are turning over the reams of data even have the right to appear before the FISA court.

Bottom line? The executive branch advanced an indefensible legal interpretation of an Act of Congress, gutting the limits that Congress placed on the executive’s power. The FISA Court, in a setting where it only heard from one side, adopted that indefensible interpretation. Bow it’s effectively the law of the land – and we wouldn’t even know about it, if not for Edward Snowden’s illegal leaks to The Guardian.

Well, we’d have some inkling, thanks to Senators Mark Udall (my senator!) and Ron Wyden. But only a vague inkling. We now know that this issue is precisely what the senators were talking about when they wrote to Attorney General Eric Holder in 2011 and 2012, and said, vaguely – because, thanks to secrecy laws, they were forbidden from revealing the governing laws of America to the citizens of America – that section 215 of the Patriot Act (as §§1861 and 1862 are also known) was being contorted beyond all recognition:

[S]ection 215, which is a public statute, has been the subject of secret legal interpretations. … We believe most Americans would be stunned to learn the details of how these secret court opinions have interpreted section 215 of the Patriot Act. As we see it, there is now a significant gap between what most Americans think the law allows and what the government secretly claims the law allows. This is a problem, because it is impossible to have an informed public debate about what the law should say when the public doesn’t know what its government thinks the law says.

As we have said before, we believe that it is entirely legitimate for government agencies to keep certain information secret. Americans acknowledge that their government can better protect national security if it is sometimes allowed to operate in secrecy and as such, they do not expect the Obama Administration to publish every detail about how intelligence is collected any more than early Americans expected George Washington to tell them his plans for observing troop movements at Yorktown. However, in a democratic society – in which the government derives its power from the consent of the people – citizens rightly expect that their government will not arbitrarily keep information from them. Americans expect their government to operate within the boundaries of publicly-understood law, and as voters they have a need and a right to know how the law is being interpreted, so that they can ratify or reject decisions made on their behalf. To put it another way, Americans know that their government will sometimes conduct secret operations, but they don’t think that government officials should be writing secret law.

Exactly, Senators Udall and Wyden. Exactly. And this is why I get so worked up: not so much because of the metadata-spying itself (though that’s bad enough!), but because of the underlying structural threat to the constitutional order. It fundamentally undermines the rule of law, and the very fabric of republican government, for the executive and judicial branches of the federal government to, in essence, secretly change the law from something that Congress passed (metadata collection limited by a “relevance” requirement) to something that Congress deliberately did not pass (metadata collection with no effective limit). If that can happen, and not be corrected, then we are in deep, deep trouble.

I use the word “tyranny” because, regardless of the motivations (or party affiliations) of the people presently in power, a nation in which Acts of Congress can be indefensibly contorted, through secret judicial “interpretation,” into something directly contrary to the will of Congress, is not a nation governed according to principles of republicanism or representative democracy. It is a nation which has, in the name of fighting terrorism, abandoned all pretense of checks and balances with respect to security and surveillance policy. And that’s just not okay.

I’ve been focused on this narrow – but critical – issue of the interpretation of 50 U.S.C. § 1861’s “relevance” provision since the very day the NSA metadata-spying story broke, June 5. That evening, I basically erupted on Twitter in a fit of civil-libertarian rage:

In addition to suggesting “impeachment should be considered,” I also tweeted, “So help me, if I have to vote for f***ing Rand Paul in 2016 to drop this insanity, I will. Enough is enough.” (My point being, this is much more important than typical policy differences; it goes to the heart of our structure of government itself.)

And then, a Star Trek reference:

In response to the inevitable backlash against the “impeachment” and “Rand Paul” comments, I conceded, “I’m a bit worked up. Having a @sullydish moment.” I also clarified, “Look, it’s not like I’m committing to vote for Rand Paul here. #shudder. I’m just trying to emphasize how much this matters.” As for impeachment:

I said “should be considered.” I’m worked up, but I chose my words carefully. Not saying “impeach!” But not off the table. THIS MATTERS. If we won’t even consider impeachment for exec & judicial officials who won’t explain legal basis for what appears facially to be an indefensible interpretation of the law that allows them to illegally spy on all Americans, then why does impeachment exist?

About a month later, after the Times article, I framed the issue a bit less controversially, in terms of my own future votes:

And now here we are today. Unfortunately, the continued “existence of secret federal common law” isn’t up for a vote, at least not yet. Only the metadata-spying regime – the one specific, known example of “secret federal common law” leading to an obviously-wrong result – is before the House today.

Even so, the Amash amendment is important because, as I said before, its passage would serve as an explicit repudiation of the executive and judicial branches’ lawless quasi-repeal of the statute’s relevance provision. By contrast, and perhaps even more importantly, a vote against the amendment would likely be touted by the dissembling demagogues on the other side of this issue as a definitive judgment that Congress has ratified this absurd interpretation. Given the insular and risk-averse culture of D.C., a defeat today could shut down further efforts to address this issue, while a victory today could invigorate those efforts.

So, the amendment needs to pass. Call your congressperson. Let’s do this.

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[This post was originally published on The Living Room Tumblr.]

Merkley: “Cast it into the fire!! DESTROY IT!!!”
Reid: “No.”
Merkley: (years later) “It should have ended that day. But the Filibuster was allowed to endure.”

A tweet-nado to remember

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[This post was originally published on The Living Room Tumblr.]

Last Thursday, the SyFy network aired an absurd, low-budget, deliberately campy made-for-TV movie called “Sharknado.” It was a ratings bust, but a Twitter blockbuster, starting on Wednesday when the final trailer hit the Interwebs, causing a frenzy of anticipation, commentary and snark – a “snark-nado,” if you will. As Thursday dawned, the use of #Sharknado ballooned on Twitter, and by the time the movie aired, it was a genuine Twitter phenomenon.

I would argue, in fact, that the #Sharknado of Thursday, July 11, 2013 may have been Twitter’s finest hour for absurdist comedy since the days leading up to the predicted #Rapture of May 21, 2011. I memorialized that event – which I now remember primarily as the source of a series of funny tweets that cemented my bipartisan, multifaith bromance with Zach Bloxham – with a blog post, so I thought I would do the same with #Sharknado.

After the jump is an embedded Storify archive of my tweets and RTs about #Sharknado – and, later, having fun with “-nado” as a generic suffix – but first, a few (okay, a bunch) of my favorites:

There was also, in the aftermath of #Sharknado, my invention (well, quasi-invention; I came up with it myself, but later eventually saw that a few others had gotten there first) of the term “derpnado” to describe Twitter’s periodic outbursts of political absurdity at the latest Outrage of the Moment. Here are some tweets on that:

So, there you go. 🙂 An even fuller history of #Sharknado and its aftermath, as told by my Twitter feed, is after the jump.

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[This post was originally published on The Living Room Tumblr.]

They were once judges. Great sages of justice. Then Congress the Deceiver gave to them a Secret Court of Power. Blinded by their patriotism, they joined it without question, one by one falling into darkness. Now they are slaves to the Executive Branch’s will. They are the FISA-gûl, Judge-wraiths, neither judicial nor executive. At all times they feel the presence of the NSA, drawn to its power. They will never stop authorizing the government to spy on you.

How Aragorn would describe the Foreign Intelligence Surveillance Court.

New conservatweeps: I come in peace!

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[This post was originally published on The Living Room Tumblr.]

I’m in Salt Lake City this 4th of July weekend, attending FreedomWorks’s “Free the People” event (a.k.a. #FTP2013) and the closely associated Glenn Beck event, #maninthemoon, as well as the speaker series put on by #M1Charity. My family and I drove in from Denver on Wednesday, and we will be enjoying a mini-vacation in SLC – our first time visiting the area – in between events. I’m very excited to be here!

UntitledOver on my Twitter account, @brendanloy, I’ve been newly following a lot of people who are using the event hashtags, so I’m getting a bunch of follow-backs. Some of these new followers might vaguely remember me from my 15 minutes of InstaPundit-fueled Hurricane Katrina fame, or from any of my various other Instalanches over the years, like the one to my pro-Lieberman, anti-Lamont post in 2006 (a hit among conservatives, naturally). Others might know me as the Pajamas Media “Weather Nerd.” Many others will never have heard of me.

Regardless, unless they’re already familiar with my politics, many of these new followers will likely become confused when they notice that my Twitter timeline skews a bit, well, uh, left of the mainstream for this particular event. As in, “Wait – this guy writes for Pajamas Media and comes to FreedomWorks/Glenn Beck events, but he sounds like a stinkin’ Democrat! What gives?!” So I thought, lest any confusion or misunderstanding arise, that I should introduce myself to these new conservatweeps:

My name is Brendan Loy. I have a wife and 3 daughters, ages 5 and under. I’m a long-time blogger, a recovering journalist, and a Colorado attorney.

I’m also the “FreedomWorks Token Democrat.” And I come in peace.

Exactly how I ended up as a guest of FreedomWorks at this event – with a VIP pass for the speaker series, and a seat on Blogger Row for #FTP2013, no less – is a bit of a long story, which I won’t relate in full here. But, as a famous Kenyan* might say, let me be clear. I’m not some “occupier” or Code Pink protester. I’m not some leftist jerk. (At least, my many conservative friends and tweeps don’t seem to think so.) Yes, I’m a bit left of center overall. But I’m here to listen, not to disrupt. I’m hoping for friendly and respectful conversation, not rancorous argument.

As I said, I’m FreedomWorks’s guest this weekend (it’s the second time I’ve attended one of their events), and I intend to be a good, well-behaved guest. So if you see me use a hashtag like #OccupyFTP2013, rest assured, I’m just kidding. 🙂

I’m genuinely looking forward to hearing Mia Love and Sen. Mike Lee, among others, speak this weekend. I’m also thrilled to finally meet, in person, my longtime Twitter friend @zachblox, himself a very conservative fellow. As for Glenn Beck? Okay, look, I’ve got to be honest. I don’t like Glenn Beck. So, you can expect to see me tweet some negative things about him. But I’ll do my very best to keep it civil and light-hearted. Regardless, nothing I say about Beck is intended as a personal attack on people who are fans of his. I just don’t personally care for the man. If you like him, as presumably most of you do (given that you’re here!), that’s fine. Agree to disagree. 🙂

More broadly, I can’t promise a Twitter feed devoid of snark or #trollin… but that’d be just as true, if not moreso, if I was tweeting at Netroots Nation or whatever. I mostly just enjoy silliness and snark.

Anyway, thanks for welcoming me to your shindig, conservatives. I look forward to a fun weekend!

Oh, and Happy 4th of July!!! America is the best, ain’t it?

*That “Kenyan” thing was a joke. 🙂 I like jokes. Ideology takes a back seat to humor in my book. (My book, by the way, is available in all 57 states!) (See?)

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[This post was originally published on The Living Room Tumblr.]

Firefighters are heroes.

They always insist they’re not heroes. They say they’re just doing their jobs – nothing heroic about it. And they do those jobs so professionally, making extremely dangerous feats look so routine, that it’s easy to almost believe them.

But then something like the tragedy in Arizona happens, and we’re reminded of exactly what they risk to protect us all from the unpredictable whims of fire.

We in Colorado have had plenty of reminders recently of the heroism of firefighters. Driving through Black Forest on Saturday, you see it in every house that was spared the fate of the destroyed one next door, in every block that was unscathed while the one across the street burned –  because firefighters stood in the road and held their ground.

You see their heroism, too, in the photos and videos of firefighters braving heat and smoke and wind and flame to protect lives and homes.

And you see it in countless news accounts, like the story about the firefighters who formed a line in front of the School in the Woods, faced down a wall of shadow & flame, and made sure that it “shall not pass” – saving the school.

I suspect we’ll learn eventually that certain mistakes were made which, in hindsight, contributed to the tragedy in Yarnell, AZ. Firefighters will try to learn from those mistakes, whatever they were, for the future. And that’s as it should be. But perfection is impossible to achieve in this life. Mistakes happen, and when they do, fire is unforgiving. The fact is, every time these brave men and women go to the front lines to battle one of these dangerous, unpredictable, raging wildfires, they take a risk that what happened in Yarnell will happen to them. They take this risk willingly, with full knowledge of what could happen, because to them, protecting others is worth the risk. Because they are heroes.

God bless them.

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[This post was originally published on The Living Room Tumblr.]

VICTORY. Good riddance, #DOMA.

My SCOTUS gay marriage prediction

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[This post was originally published on The Living Room Tumblr.]

photo 1

With one hour until we finally get to the gay stuff, I might as well post my thoroughly underinformed, wild-guess predictions for what the Supreme Court will decide. Here goes:

DOMA: Struck down by a vote of 7-2. Chief Justice Roberts writes the majority opinion, striking down the law on states’ rights / limited federal power grounds. He is joined by Kennedy, the four liberals (at least as to the result), and… Thomas. Yes, Thomas.

Alito dissents; Scalia joins him. (Scalia will save his rhetorical fire for his Prop 8 dissent.) The liberals, of course, also separately concur, to say they would strike down DOMA on 14th Amendment grounds too.

Why Roberts in the majority, and as the author of the opinion, no less? Well, for one thing, because despite his skeptical questioning, you can’t trust oral argument tea-leaf-reading. You just can’t. But beyond that, I predict that Roberts will have wavered behind-the-scenes on this one, but after seeing the writing on the wall (i.e., that Kennedy was solidly with the liberals), he will have decided to be on “the right side of history” for the sake of his legacy – and to shape that history/legacy by writing the opinion himself.

Prop 8: “Punted” by a vote of 6-3, probably on grounds of standing. Kennedy writes the majority opinion. Roberts joins him. The four liberals find some tortured way to join in just enough of Kennedy’s opinion to make it a “majority” decision, but then they concur separately (or dissent in part??) to say that Prop 8 should really be struck down on 14th Amendment grounds. Scalia scathingly dissents, delighting conservatives with his biting quips and quotes. Alito and Thomas join him.

Here’s my thinking on Kennedy’s internal rationale: again, it’s a “right/wrong side of history” thought process. He won’t want to uphold the law, and enshrine firmly into 14th Amendment jurisprudence the principle that gay marriage isn’t entitled to equal protection, because he knows that’ll look really bad in 20 or 30 years. But he also won’t want to strike the law down, because he won’t want to insert the Supreme Court into the “liberal” side of a hot-button issue where the democratic process is already rapidly liberalizing the status quo. (This is a key difference, incidentally, between this situation and the situation before Brown v. Board of Education. The democratic process was making no headway there, so the court really “needed” to step in. Not so here, Kennedy will conclude. Although, get back to me in 10-20 years, if thirty-some states have legalized gay marriage, while a solid bloc in the Deep South/Great Plains/Mormon areas don’t even have civil unions yet. This scenario is one reason the “punt” will appeal to Kennedy. The time isn’t right to insert the Court into this issue – but maybe later.)

Anyway, not wanting to either uphold or strike down Prop 8, Kennedy will look for a middle path, and will find a “punt” rationale that he likes. Which one? Meh. I recall reading after oral argument that there were several possible flavors of “punt” available. I don’t remember all the details right now, and don’t really care to re-read them. The bottom line is, SCOTUS won’t decide the 14th Amendment merits.

As for Roberts, I have him joining Kennedy in a 6-3 opinion, and thus doing what everybody thought he might do with Obamacare: becoming the pragmatic/legacy-protecting sixth majority vote in what is really fundamentally a 5-4 decision with Kennedy as the swing vote. Had Kennedy swung the other way, Roberts might have too, but he won’t stick out his neck here for a lost cause. (With Obamacare, of course, everyone was wrong about this – Kennedy sided with conservatives, so Roberts’s fifth vote to uphold it was the only reason the law stood. This time, though, he’ll actually do the “Kennedy’s shadow” sixth-vote thing, to prevent “his” court from issuing another 5-4 high-profile decision.)

So, those are my predictions. They are almost guaranteed to be wrong. But I just wanted to put them down for posterity, because hey, you never know.

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[This post was originally published on The Living Room Tumblr.]

The sunset in Denver last night was absolutely stunning, because of  smoke from the Lime Gulch Fire. (The wildfires are awful. But they do create a certain perilous, bittersweet beauty at times, and this was the ultimate example of that.) I was heading to Walgreens to pick up prescriptions when I saw it, at which point I promptly changed my route and drove toward the Stapleton Control Tower, realizing that that was the photo I absolutely had to have. It was reminiscent of the time, during law school at Notre Dame, when I sprinted across campus to the Main Building when I saw that there was a beautiful rainbow overhead and immediately realized that the rainbow over the Golden Dome was the dynamite, must-have shot. Anyway, on this occasion, I pulled over on Central Park Boulevard near the intersection with MLK, got out of the car, madly jaywalked across the street in search of a better angle, and ultimately took a whole bunch of shots with my iPhone. (This all happened too fast to think of bringing my SLR.) My favorite photo, I think, is the panorama above, but I tweeted several others, too: here, here and here.