.: I Respectfully Dissent :.

In defense of of the Judges

Writing last week in opposition to the nuclear option (2005-05-03) I wrote:

"My position, in general, is this. I do not object in particular to the nominees being proposed."(§I ¶1)

I write today to underline this point, viz., that while I oppose the use of the nuclear option on the grounds that the filibuster is not unconstitution (see Id. at §II), I do not agree with the Democrats' characterization of the judges in question either.

In particular, I dissent from the character assasination being performed on Janice Rogers Brown. I contribute occaisionally to Wikipedia, ad the entry for the nuclear option - written, it appears, by staunch democrats - prior to my attempts to add some balance, described Brown thus:

The Los Angeles Times calls Brown "A bad fit for a key court". Brown's alleged dogmatism and a style bordering on vituperation earned her only a qualified rather than well qualified rating from the American Bar Association. Some committee members found her unfit for the appeals court. The New York Times editorialized, "Brown's record as a judge is ... cause for alarm. She regularly stakes out extreme positions, often dissenting alone." People for the American Way President Ralph G. Neas described Janice Rogers Brown as the "far right's dream judge". Senate Minority leader Harry Reid said "She is a woman who wants to take us back to the Civil War days" A list of organizations that oppose Brown's confirmation is given here.

Let us not forget that Brown won re-election to the California Supreme Court with in excess of 75% of the vote - if she is so far out of the mainstream in a rightward direction, how did she achieve this in a state that is by any measure the furthest out of the mainstream in a left direction?

Of course the democrats oppose Brown; she is a conservative Judge who has made rulings with which they disagree, on matters like private property and civil liberties. But do I detect that they dislike this particular Judge just a little too much?

It's interesting that much of this language is reminiscent of the vitriol hurled at Clarence Thomas, when that jurist was confirmed to the Supreme Court. The fact here is that Brown is opposed to affirmative action; to assume that she is opposed to civil rights because of this is to assume that civil rights = affirmative action. This is not the case, in my view; I have previously argued (q.v. 2004-11-15 at ¶13 et seq.) that affirmative action causes grevious harm to progress in racial equality.

Another interesting point on this same theme comes to us by way of Sisu is a commentary from Thomas Sowell that wonders if perhaps democratic opposition to nominees like Thomas and Brown might smell distinctly of realpolitik:

"The things she says and does could lead other blacks to begin to think independently -- and that in turn threatens the whole liberal house of cards" (Liberals, race & History 5/24/05)

A similar theme is taken up by Tammy Bruce in The Death of Right & Wrong, who notes that if Democrats lose the black vote, they will never return to the White House, and in order to retain that vote, they decide (or are forced to) maintain the fiction that blacks are held back in society not by counterculture or a nihilistic and amoral culture of impoverished ambition, but rather, by white racism. They need to maintain the fiction that affirmative action is not only constitutional (it isn't) but desirable and effective (it is neither). Black conservatives who are successfull in their careers threaten this fiction, and might lead to questions of "well, if they can do it, why can't I?".

I can't help wonder if perhaps the other party's opposition to this Judge stems less from simply disagreeing with her rulings - although I'm certain they do so disagree - and more from a realization that there is no inherent reason why the Democrats have a lock on the votes of blacks and minorities, and the consequence of losing that block.

Posted 19:00, 5/26/2005 by Simon | Filed under: The Nuclear Option | Comment on this

No victory at all for democrats

I'm going to write more about the nominees later today, if I get time, but I wanted to repost a comment I made in objectioon to people lionizing Harry Reid for his performance in the filibuster fight. I wrote a fairly scathing post about Reid's behaviour post-compromise, and was questioned why I was being so hard on Reid. Well, here's why.

The right are furious at this compromise. They are already talking about doing everything possible to remove Mike DeWine at the next election. What Reid's comments - loudly and intemperately claiming victory - will do is to pour gasoline on a smouldering fire. By attempting to rob Republican moderates of the ability to claim that this was anything other than a capitulation, Reid is either trying to, or may simply be too stupid to realize that this will be the effect, encourage the burgeoning calls for a purge in the GOP, which will remove the very moderates who facilitated this deal. At best - callously stupid. At worse - calculatedly pernicious.

Besides, I dispute the characterization that it's a "victory" for either side. Moderates on both sides can claim a limited victory, and partisans on both sides have deafeningly claimed their party's ignominious defeat. Much has been said about why the Democrats "won" this, and now I shall present my argument why they didn't.

This isn't a victory for Harry Reid - the GOP effectively agreed to not use the nuclear option for as long as the Democrats don't filibuster. Owens and Brown - for all the democrats bitter hostility - will both have their gavels within a week. If the Democrats attempt to filibuster another nominee, thus breaking this hard-won compromise, they will find public support much diminished next time, which means that they've peaked prematurely, scant months before a Supreme Court nomination fight.

Furthermore, while much has been made of Frist's motivations in bringing this matter to a head, it seems to me that Harry Reid was spoiling for a nuclear showdown. Perhaps because the Democrat base has been clamoring for a leader that won't compromise or give in, a leader with more essential "toughness" from their previous four candidates.

Much has also been made of Frist's "refusal to compromise". A compromise is when neither side gets everything they want - what did Reid offer to give up in his proposed "compromises"? Nothing. To my knowledge, Reid never offered to compromise - he demanded that Frist surrender, but for the sake of the cameras, he did so in the dulcet tones of Irish diplomacy, which made it appear that he wanted to compromise.

When, in fact, a compromise came, it came in spite of Reid, not because of him, and he proceded (as discussed above) to do everything he could to shipwreck the deal. Tell me how any of that is a "victory" for Harry Reid.

Posted 09:15, 5/26/2005 by Simon | Filed under: The Nuclear Option | Comment on this

SCOTUS will hear abortion case

Reported today in The Washington Post, and as previously reported on SCOTUSblog, the Supreme Court will "consider whether laws requiring parental notification before a minor can get an abortion must make an explicit exception when the minor's health is at stake. More broadly, the case concerns the standard to be used by courts when reviewing the constitutionality of abortion laws." The opinion of the 1st Circuit U.S. Court of Appeals in this case can be found here (PDF format).

Posted 14:20, 5/23/2005 by Simon | Filed under: Default | Comment on this

Pat Buchanan and filibusters

I originally wrote this as a reply to Empresskara, who posted some comments from Pat Buchanan over the judicial battle, but alas: my "comment of 6413 characters exceeds the maximum character length of 4300". So it's going to have to be a (semi) full-fledged post here.

I dissent strongly from Pat on this point, both procedurally - q.v. my comments 2005-05-03 - and substantively. See brief comments 2005-03-25 and even briefer, 2005-03-31. I did write at more length about this, but it looks like I never got around to posting it, so I'll have to try to search that commentary out. I also previously posted a link to Buchanan's contemporaneous comments regarding Terri Schaivo, viz.:

...Conservatives are hypocrites, they charge. The Right opposes judicial activism and preaches states' rights. But in Terri's case, the Right clamored for judicial activism and rejected states' rights.

But this is absurd. The judicial activist in Terri's case is Greer, who sentenced a brain-damaged woman to death by starvation and dehydration. If this is not judicial activism, in violation of a citizen's right to life, due process of law, and not to be subjected to cruel and unusual punishment, what is?

I
Since Kara noted that I've written in support of Buchanan's ideas before, let me begin by explaining how I view Pat Buchanan: I broadly agree with Pat on immigration and trade policy. See, e.g., his excellent article No Nationalists on Kemp's Shining Hill, 8-2-2004; cf. my very brash and youthfull comments from last January - I laughed out loud reading this comment again after a year, at how much my writing has, ahem, grown). However, I disagree just as strongly with him over Iraq - his book A Nation Not an Empire makes a very compelling case for why Bush's post-9/11 change to a more neoconservative foreign policy is an aberration, understood in context of America's historic foreign policy, but neither that book nor any of his magazine's articles convince me that this change is anything other than a long-overdue and necessary course correction; cf. Robert Kagan, Of Paradise and Power; Richard Perle, An End to Evil - and on many aspects of social policy, e.g. his views on gays (i.e. homophobia) and, evidently (and surprisingly) his views of the judicial process.

I said "surprising" above, incidentally, because what's truly surprising is that it is the neoconservatives - a group that Pat Buchanan has routinely savaged - who are the most active advocates for using liberal methods - judicial activism, the welfare state et al; q.v. Irwin Steltzer, introductory essay to The Neocon Reader - to their own ends, while it seems to my mind that it is paleoconservatives (of which Buchanan is one) who are more generally associated with strict constructionism, "traditional" conservatism, and GOP-style libertarianism, although Buchanan's American Conservative magazine frequently includes articles which lean decidedly towards "social conservatism", or the "theocons" if you will. Perhaps I have simply misunderstood the term "paleocon".

II
Anyway, on with the show. As I previously wrote - see comments, 2005-04-06 - the role of the Judge, and of the Supreme Court, is to divine how the actual text of the Constitution applies to individual cases. It is absolutely not for the Judge to impute new meaning into the text, to make it better comport with their "own concept of what is fair, decent, and right", as Justice Hugo Black put it (In re Winship, 397 U.S. 358 (1970)), or as Justice George Sutherland put it, "the judicial function is that of interpretation; it does not include the power of [Constitutional] amendment under the guise of interpretation". (West Coast Hotel v. Parrish, 300 U.S. 379 (1937)).

The Constitution, properly (as I see it) understood, is a legal contract between two parties: the American people and their government; it sets forth what government may and may not do. Like any other legal document, the constitution says some things, and doesn't say others, and like any other legal document, if the meaning of that document is yielded by one party to be indefinitely malleable, then it will become no restraint whatsoever on the other. No matter how morally wrong what happened to Terri Schaivo may or may not have been, no matter whether you do or do not feel that the judicial process failed her / her parents / her husband (delete as applicable), no matter any of these things, what was done was legal and constitutional. If you don't agree with what the law says, change the law. If you feel that a right is so important that it should be constitutionally protected, pass and amendment. Executing a retarded minor for murder may be wrong; it may be very stupid. But it is not unconstitutional. Starving a brain-damaged woman to death may be morally wrong; it may be very stupid. But it, too, is not unconstitutional. Terri Schaivo was entitled to the due process of law; she received it, and conservatives who cheered Justice Scalia's dissent in Roper v. Simmons cannot possibly now turn around and criticize the result of Schaivo.

Dissenting in Dred Scott v. Sandford, 60 U.S. 393 (1856) - almost universally drecried as the low-water mark of American jurisprudence, both procedurally and substantively - Justice Benjamin Curtis wrote:

"Whether such decrees are wise or unwise, whether their subjects are citizens or not, if they are usurpation of power, our rights are both infringed and endangered. They are infringed because the power to decide and act is taken away from the people without their consent. They are endangered because in a constitutional government, every usurpation of pwoer dangerously disorders the whole framework of the state."

Once you hand over such power to the judicial branch, you effectively make the court system our improper masters - and this is insanity, whether you are right or left, because it means that nothing will ever be non-partisan again. Cf. remarks of Justice Scalia (RealMedia format), 4/23/2005.

To allow the Judge power to legislate - a power specifically reserved by the framers to the Congress - is judicial activism, and it is grossly wrong and foolish, no matter whether pressed into the service of the left - as it frequently is; q.v. Griswold, Roe, Lawrence, Roper, and innumerable others; cf. Editorial, New York Times, 1-26-2005 - or the right, as Pat would have had in Schiavo ex rel Schindler, et al. v. Schiavo, et al..

III
To me, what Pat's comments do is to give apt illustration to Andrew Sullivan's excellent recent cover piece in The New Republic, Crisis of Faith, in which he argues that the divisions within the GOP can be broken down into two groups - conservatives of doubt and conservatives of faith - which produces two fundamentally different kinds of Republican: one which wants to wield government as a tool of their agenda, and one of a more libertarian nature which wants to roll back government. Sullivan's conservatives of faith are those who have pushed the "all or nothing" approach to government business, which has brought us to this juncture.

I am of the latter group, and of the Scalia mindset, which holds that the Constitution says certain things and doesn't say others, and no matter how hard I concentrate, no matter how hard I wish for it, new provisions do not appear magically in the text, as they do for Justice Breyer, for example. The Constitution says what it says, and we do not need judges who will abuse their position to support either side's causes - we need judges and Justices who will leave those grand and important public policy debates to the gladiatorial arena across 1st Street from the Court, and who will, in the words of the Oath of a Supreme Court justice, "will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me under the Constitution and laws of the United States".

Posted 12:38, 5/23/2005 by Simon | Filed under: Default | Comment on this

The Cato, on filibusters

The Cato Institute also appears to have picked sides (this is what I get for almost never reading their daily briefings, I'm sure I'm late on this one).

Anyway, the Cato's David Boaz writes today:

Republicans who once extolled the virtues of divided power and the Senate's role in slowing down the rush to judgment now demand an end to delays in approving President Bush's judicial nominees. Democrats who now wax eloquent about a "rubber stamp of dictatorship" replacing "the rights to dissent, to unlimited debate and to freedom of speech" in the Senate not too long ago sought to eliminate the filibuster altogether.

Republicans were right in those days. They should take advantage of the Democrats' being right today and return to protecting the rights of the minority. No party holds a majority forever, and some day Republican senators will need to use the filibuster again to stop big-government legislation and slow down a Democratic president's most liberal nominees.

(Excerpted).

Posted 16:38, 5/19/2005 by Simon | Filed under: The Nuclear Option | Comment on this

RIP "the public interest"

Nathan Glazer, writing a farewell address for The Public Interest pulls out a great Irving Kristol quote:

"for well over a hundred fifty years now, social critics have been warning us that bourgeois society was living off the accumulated moral capital of traditional religion and traditional moral philosophy, and that once this capital was depleted, bourgeois society would find its legitimacy ever more questionable,"

This would be a prescient comment if written today, when confronted with the gradually encroaching cleavage of America into two nations under one flag (q.v., e.g., George Lakoff, Moral Politics; John J. Miller, The Unmaking of Americans: Multiculturalism and the Assimilation Ethic; John Sperling, The Great Divide), and its concomitant moral decay (q.v. Tammy Bruce, The Death of Right and Wrong) IMO; that it was written as far back as 1973 perhaps shows why Kristol is so highly regarded for his foresight and clarity of thought. I read his compendium (Neoconservatism: the Autobiography of an Idea) last year and found it a fascinating insight into a philospophy I had previously imagined to be a mere buzzword, but which appears to be well-grounded in intellectual inquiry. So The Public Interest is no more, but there are many years of well-written insight to go back through.

Posted 09:04, 5/19/2005 by Simon | Filed under: Default | Comment on this

Population heads southwards

I'm sure I've written a little on this subject before, but this fellow has more weight to his opinion: William H. Frey of the Brookings Institute has written a paper called The Electoral College Moves to the Sun Belt, in which he presents statistics and analysis projecting the increasing weight of the sun belt in the House of Representatives and Electoral College over the next thirty years.

While Frey is careful to add corollaries warning that this doesn't necessarily have to be terrible news for the Dems, the LA Times has all but ran up the white flag in a piece titled Democrats Covet the West, but Can't Keep Losing the South

new long-term population projections from the Census Bureau show that anyone who believes Democrats can consistently win the White House without puncturing the Republican dominance across the South is just whistling Dixie. The census projections present Democrats with an ominous equation: the South is growing in electoral clout even as the Republican hold on the region solidifies.

Posted 14:21, 5/16/2005 by Simon | Filed under: Default | Comment on this

Ba'Ath party scores London victory

In a surprise late result, Saddam Hussein's Ba'Ath party scored an electoral victory yesterday, winning the British Parliamentary Constitutency of Bethnal Green & Bow. The victorious candidate, George Galloway, heaped praise on the beloved leader, and attacked the infidels, such as the voters, the returning officer, the elections staff, the local government, and of course, George Bush. We may comfort ourselves solely with the knowldge that he will be forgotten and ignored. For those who have seen the movie Elizabeth, recall the comments of Sir Francis Walsingham, told by a prisoner hanging in jail, "the people will not forgive this outrage!". Walsingham leans close to the man, and dryly replies, "they will forget". Mostly, you have to feel terribly, terribly sorry for the poor people of Bethnal Green & Bow, who will now be without adequate representation in Parliament, having picked - by a majority of 823 votes out of over 44,000 cast - a man who never opens his mouth without subtracting from the sum of human knowledge. 4928 LibDem 6244 Conservative 1950 Green 15801 Ba'ath 14978 Labour http://politics.guardian.co.uk/election/story/0,15803,1477676,00.html

Posted 09:17, 5/6/2005 by Simon | Filed under: Default | Comment on this

Judicial filibusters - my take

I've commented many times in mostly every non-LJ blog I read, except my own, on
the filibuster business, so before they actually go ahead and do it - and they
are going to go ahead and do it, since both sides have now painted themselves
into a rhetorical corner from which there is no escape - let me just sum up here
my position on ending the filibuster on judicial nominations by the so-called
"constitutional" option.

Just before I begin, there is an excellent rebuttal of the Democrat position (i.e.,
that the filibuster is a well-established device for blocking judicial nominees)
that has been posted by Jeffrey D. King, who transcribed the Scalia speech I posted earlier today. Thanks to Jeffrey for finally prodding me into getting this post collated from my various other, and less structured, ramblings.

I
My position, in general, is this. I do not object in particular to the nominees being proposed. Nor do I object, per se to the principle that every nominee should get an up-or-down vote. Therefore, my remarks in this should not be construed as to support the Democrats on this matter. Where I do dissent, however, is the idea that the filibuster on judicial nominees is unconstitutional. As I previously posted regarding Roper v. Simmons, something can be a terrible idea, or in this case, undemocratic, and yet still be constitutional. The filibuster is such a device.

Let us dispense with two notions where I simply cannot agree with the leadership.

II
The first is the idea that the filibuster is unconstitutional.

The Constitution allows each House of Congress to adopt its own Rules. Art. I, §5, Cl. 2. Each time a new Congress convenes, each House is free to adopt, discard or amend the existing rules. The House, which is an entirely new body in each Congress, does this explicitly by voting on a new set of rules; in the 109th Congress, it did precisely that. Congressional
Record, 1/4/2005, p. H7. The Senate, by contrast, is a continuing body; the rules of the previous body remain in force by unanimous consent at the convening of the new session, unless challenged. Senate Rule V, §2. They were not so challenged. Q.v., Dick Morris, The Hill, 2/2/2005. Once those rules have been accepted by the Senate, they are binding until either a) a new session begins, or b) they are amended as provided within the standing rules.

Now, it's been argued that, when the Senate is in "executive business" - i.e., confirming nominees - that it functions under different rules. Such an argument is triffling. The Constitution makes no such differentiation; the Senate rules make no such differention. There is no such differentiation. The Senate rules are as they provide for them to be, as per the Constitution; the rights and perogatives of the Congress are not merely spelled out in Article I, but throughout the Constitution and its amendments. Nobody, for example, has attempted to contend that the Senate is governed by different rules and procedures when considering legislation determining the manner in which the public acts or record of a given state are proved to other states. Art. IV, §1, Cl. 2. The Constitution's definitive - and thusfar only - statement on the rules that govern Congressional consideration of any business placed before it can be found at Art. I, §5, Cl. 2.

Furthermore, it is important to evaluate the Constitution's language in context, and context provides a further hurdle for the notion that the Framers intended to micromanage the rules of procedings in either chamber of Congress:

Before the Constitution was ratified, the United States was governed by the Articles of Confederation. The Articles established a Congress composed of representatives from each of the states, with each state having one vote. Significantly, the Articles imposed a supermajority rule on Congress's exercise of many of its powers.

The Articles' use of a supermajority rule argues strongly against [the] claim that the Framers used "passed" to mean "passed by majority vote." The Framers would have expected the Constitution to be interpreted against the backdrop of the Articles. Because the Articles employed a supermajority rule, the Framers would not have simply assumed that everyone would understand that legislatures always pass bills by majority vote. Thus, if the Framers had intended to mandate majority voting, they would have done so explicitly.

(McGinnis & Rappaport, The Rights of Legislators and the Wrongs of Interpretation: a Further Defense of the Constitutionality of Legislative Supermajority Rules; 47 Duke L.J. 327)

Perhaps a more immediately watertight argument - and this is the one most frequently deployed - is, "The lack of Constitutionality of the filibuster in the debate on nominees is based upon the fact that the Constitution does not spell out supermajority requirements for that function". This argument is intriguing, but fallacious; the mere fact that the Constitution does not explicitly require a supermajority proves nothing. True, it could be argued that the constitution implies a simple majority - but it does not say as much, and indeed, the Constitution explicitly requires the Senate to give its consent to nominees, and it explicitly gives the Senate permission to set its own rules as to how to consider its business. Ipso facto, the explicit always superceding the arguably implicit, the filibuster is neither constitutional nor unconstitutional, but rather, a creature of whatever rules each Senate chooses to adopt. If the Senate wishes to amend its rules during a Congress - or adopt new rules at the start of a new Congress - it is free to do so, as provided by the rules of the Senate.

The problem is that, in order to amend the rules, Sen. Frist needs 60 votes (q.v. Senate Rule XXII, §2, para 2) - which he doesn't have. Therefore, the proposal was made - I believe it's credited to Sen. Stevens (R-AK) - to have the Vice-President make a ruling on the constitutionality of a filibuster, which could be upheld by a simple majority, which Sen. Frist may have. I could be pursuaded to vote to change the Senate rules to proscribe filibusters on Judicial nominees; I could be pursuaded to vote to vote for cloture on the inevitably-ensuing filibuster on changing the rules on filibustering judicial nominees. But where I am not convinced is the argument that the filibuster is unconstitutional, and thus if I were a member of the US Senate next week, I'm sorry to say I would join with the minority in opposing a ruling that it is unconstitutional.

III
The second is that the filibuster is wrong "because it thwarts the will of the majority".

Neither the explicit text, nor any reasonable reading of the intentions of the Framers, can lead to the conclusion that the Framers sought to create a government in which the will of the majority was excercised without constraint. To conclude that the filibuster is at aberrance with the intent of the Framers "because it frustrates the will of the majority" is little short of absurd. If the Framers had been so concerned about majority rule, they would have not created the Senate in the first place; their express intent in creating a body with the characteristics of the Senate - most saliently, a body chosen per state, without respect to population thereof, and with only one third elected at any one time - was precisely to DEFEAT the will of a transient majority.

Furthermore, one has to question what, in any event, constitutes a majority, where a body with the characteristics of the United States Senate is concerned. As noted above, the Framers specifically created the Senate as a body where each state had an equal vote, regardless of population.

It is perhaps worth noting that, while the GOP controls a majority of the seats in the Senate, these seats do not represent that majority of the population, that group to whom Sen. Frist claims to be deferring. 16 states, with a combined population of 117,657,044, send two Democrats to the Senate; 21 states, with a combined population of 112,828,577, send two Republicans to the Senate. 14 states send a split delegation, so for the sake of argument, we will divide the population of each split delegation state in half, and add that count to the population headcounts of those states sending a united delegation. By that math, the Senate's 45 Democrats represent 142,824,157 people, while the Senate's 55 Republicans represent only 112,858,577. Republicans hold a majority of the seats, but they do not represent a plurality of the people. Does this matter? No - because the Senate is not, and never has been, a majoritarian body. Which, of course, is precisely the point.

IV
I am a Republican and an Originalist, someone who really, really likes the US Constitutional order; I don't want to mess around with it simply because it suits my immediate cause. America is not, was not created as, and never will be, a strictly majoritarian democracy - it is a Republic, if we can keep it, in which majority rule is tempered with minority rights, as provided by a written Constitution, the meaning of which does not change other than by its amendment. I see no reasonable, originalist interpretation of the Constitution that is consistent with Senator Frist's nuclear option - and as such we must call it, because, Q.E.D., it most certainly is not a "constitutional" option - and thus I must respectfully dissent.

Posted 19:00, 5/3/2005 by Simon | Filed under: The Nuclear Option | Comment on this

Scalia on interpretation of authoritative texts

I'm sure I've posted these before, but I've managed to find transcripts to go with them:

Justices Breyer & Scalia on use of foreign law, at American University, 1/13/05:
Transcript
Video from C-SPAN

Justice Scalia on Constitutional interpretation, at Woodrow Wilson Center, 3/14/05:
Transcript
Video from C-SPAN

These are in Real format, which means you'll need the free Real Alternative to view it, or you could install RealPlayer if you so wish.

These segments transformed the foundation of my understanding of US Constitutional jurisprudence, in that for the first time, they presented a view of the Constitution which made a lot of sense to me, one which imbued the system with real meaning, one which was consistent with the founding premises of the Constitution. Fascinating stuff.

Posted 14:29, 5/3/2005 by Simon | Filed under: Default | Comment on this

Concept album, ahoy!

I'm starting to plan out a concept album at the moment. The central theme is that all power is fleeting and all time is borrowed; those ideas will be fleshed out in four songs, three drawing on history (the French Revolution, the British Empire, and an epic covering the fall of Rome and the preservation of the knowledge of the ancients through the dark ages by the monastaries, as fictionalized by Asimov in the classic Foundation series), and the fourth covering the concept from a more philosophical point of view. Musically, I suppose it will draw on exactly who you'd expect: Simon & Garfunkel, Yes, Genesis, Sky, REM (specifically, AFtP), Pink Floyd, Richard Wright, Roger Waters, Tori Amos, Mike Oldfield, Toto, early Dream Theater (1992-1997), Peter Gabriel (in particular, So), Miles Davis, Benny Goodman, Return to Forever, Hector Berlioz, Antonio Vivaldi, Benjamin Britten, Richard Straus and Gustav Holst. I'm sure other influecnes will work their way in there too, but that's my "inspiration corner".

I've considered myself a reasonably proficient musician for probably five years, having been a student of music (on the piano, and tenor and bass guitars) since I was 6. By comparison to several people making a living from music, I'm very proficient; by comparison to many others, I'm laughably bad. So I like to think of myself as okay - but for me, actually writing music has always been very, very difficult. Fortunately, we're now at a point where the technology is available for me to be able to piece together and record ideas fairly easily, and so it becomes a matter of creating a conceptual framework, mapping the flow of ideas and moods in a piece, and then writing the music to that map. In many ways, it's more like writing a soundtrack than what most people would picture as "writing songs" (I can hear fans of punk music or metal recoiling in horror to the idea of writing a concept album about the sack of Rome, where the ideas and lyrics at least partially predate and determine the musical content), but unless I want to play nothing but improvised melodies and grooves over and behind other people's compositions (which is fun, but unsatisfying), it's the only way I can do that.

The older I get, the less interested I am in music that isn't about anything.

When it's done, I'm going to need someone to do the sleeve art. Guess which forum I come to first for that. (Although, I should add, that the brief will be real simple: I don't care what media you use, paint, photos, whatever; but if it looks like it's ever been near photoshop or any other computer art program, it'll be rejected out of turn. I'm so incredibly sick of modern sleeve art and CGI, so I want a sleeve that is organic and real and reflects the artist's visual take on the themes I'm exlporing musically).

Posted 16:05, 5/25/2004 by Simon | Filed under: Default | Comment on this

My complaint with post-Rudess Dream Theater

I've used this - or something similar to it - several times when asked to explain why I've fallen out of love with the band Dream Theater since 1998. I reproduce it here for future reference. I will first describe the change, as I see it (§ I), and then discuss what I think's caused it (§ II).

I
As I see it, there is certainly a stylistic progression between Awake and the FII material (throughout this post, read FII as "the FII material in toto, not just the material which made it onto the album"), which is natural and inevitable; there was a stylistic progression between WD&DU and I&W, and then between I&W and Awake. Cf. ACoS (demo) and ACoS ('94). This is to be expected; musicians develop over time, and the replacement of a principle writer with Derek will not only have changed the writing style by dint of a different personality, but also affected the band's internal politics.

So we can say that one can compare Raise the Knife to Scarred and say that it is clearly the same band, but they have progressed slightly. A stylistic progression.

By contrast, there is a clear stylistic break between FII and SFaM that is so pronounced that one could almost say that DT broke up in 1998 and its members were incorporated into a Levin-less LTE. It is the LTE blueprint that has dominatd DT ever since; DT's instrumental sections have largely become duelling guitar solos vs. keyboard solos, often more closely reliant on virtuosity than melody. Cf., e.g., Paradigm Shift; Universal Mind; Strange Deja-Vu; Beyond this Life; The Glass Prison; The Great Debate; etc. But while LTE frequently allowed beautiful melody to supercede virtuoso performance (see, e.g., Kindred Spirits; Whenthe Water Breaks), as "Golden Age" DT frequently did (see, e.g., Take the Time; Learning to Live) post-LTE DT have rarely make such allowances. While previously, DT glided between styles within a single song, allowing melody and virtuosity to mingle and flow freely with heavy sections (see, e.g., Erotomania; Scarred), now DT albums seem less capable of incorporating flow and progression into songs, which usually means that we have the odd burst of melody (see, e.g., guitar solo in Goodnight Kiss) or emotional resonance (see, e.g., Vacant), but it is very much ghettoized, and separated from other styles.

I am not aware that anybody serious disputes this change. Some (I'll even allow most) fans say that the change is for the better, some argue that it is for the worse, and the merits of FII are still hotly debated, but I have not seen any serious dispute that the big stylistic "break" was between FII and SFaM rather than Awake and FII. Even those who contend FII was a commercial version of DT must surely recognize that it was "a more commerical take on DT's blueprint".

II
So that's the what; my theory for why is as follows. Derek joined DT in order to meet tour requirements, and thus his first experience with DT was spending an extended time on tour playing KevMo's material. I think that would have given Derek a firm grounding in what role the keyboards had previously played in DT music. Becuase he was also a hired gun, he was more locked into the previous DT style (i.e. KevMo's), and I think felt less keen to deviate from that material than JR (Cf.. Voices, 5YiaL; Voices, LSfNY). Derek's first writing experience with the band was, in fact, ACoS, which was certainly developed, and certainly carries important differences fromt he demo, but it is clear that Derek was fitting his ideas into an existing template. When it came to write FII, then, Derek had an intimate understanding of what the keyboards had done in KevMo-era DT, and was substantially less willing to deviate too far from that. And thus, they all wrote some absolutely fantastic material for FII, some of which made it onto the actual album.

Clearly, what Derek chose to input into DT is not the breadth of his taste or talent; q.v. Planet X and solo disks, but the records speak for themselves.

By contrast, when Jordan joined DT, he was joining them very much as an equal, and his first project with the band was writing an entirely new album. He thus immediately had less experience of what keyboards had previously done in DT, and a project where it "mattered less"; he also had a project in which he had far more freedom to put his own stamp, and an intraband relationship in which he was far more able to do so than Derek.

I think that there are other factors that have effected the change on DT, chiefly the seeming dominance of JP and MP personality-wise (see, e.g., MP's comments that JM "prefers to stay in the background", which is a de facto statement that JM "generally stays in the background"), the increasing dominance of the guitar (and guitar-type lines), the influx of new influences that I don't like (Muse and numetal, for crying out loud?!) the approach to writing (they had such a miserable time making FII, immediately followed by fun times making LTE, that they seem to have forever abandoned the more considered approach to making records which had served them so well up to and including FII; see also ante at § I ¶3), but that's my potted theory about why it changed.

None of which, of course, matters as much as the fact that they have changed, and I don't like it, so this might all be sour grapes. ;)

Posted 13:21, 5/30/2005 by Simon | Filed under: Music | Comment on this

Tushnet on Tribe

Marvellous quote from Mark Tushnet:

So, to quote Justice Jackson, "Baron Bramwell extricated himself from a somewhat similar embarrassment by saying, 'The matter does not appear to me now as it appears to have appeared to me then.' . . . But an escape less self-depreciating was taken by Lord Westbury, who, it is said, rebuffed a barrister's reliance upon an earlier opinion of his Lordship: 'I can only say that I am amazed that a man of my intelligence should have been guilty of giving such an opinion.' If there are other ways of gracefully and good naturedly surrendering former views to a better considered position, I invoke them all.")

Posted 23:16, 5/28/2005 by Simon | Filed under: Default | Comment on this