A Festival of Burt Likko: A Bountiful Birthday Buffet of Our Editor-in-Chief Emeritus

In honor of Ordinary Times Editor-in-Chief Emeritus getting another trip around the sun on the ledger, a bountiful birthday buffet of all things Burt Likko.

[Burt1] Jeopardy! And What Is Actually Not So Important?

Burt sallies forth into the discourse to defend his beloved Jeopardy! against the scurrilous attacks of Andrew Donaldson who called for it to end.

I consider Andrew one of my top-tier internet friends and I dearly look forward to meeting him in person one day. But on this point, he is exactly and completely wrong. Jeopardy! is an enduring part of our culture enjoyed by a broad category of people, people of all ages, from every conceivable demographic group, and educational background. Its appeal is universal. You can watch it come on TV and enjoy it. You can play along with it in a bar and make friends with total strangers with it.

The breadth of things you need to know to have a fighting chance on Jeopardy! is staggering. Yes, you need “a head for trivia.” What does that mean? To be good at trivia requires that you have an interest in a broad spectrum of subjects, from history and geography to sports and entertainment to science and technology to mathematics and wordplay. You need to be a polymath, and probably have to get some of that information in your head autodidactically. Not coincidentally, I learned words like “polymath” and “autodidact” watching Jeopardy! and you can too. Jeopardy! encourages people to learn about these things.

If you pay attention watching Jeopardy!, you almost can’t help but learn some stuff.

True, some folks throw up their hands and say things like “Well, I’m just no good at math, but that guy sure is!” All by itself, that’s a good thing. The smart person is the admired person. Having knowledge is a good thing.

[Burt2] Heading Seventeen Degrees Westerly Of True North From Herlong Junction

Some of Burt’s best Emeritus-era writing was his sharing of his search for a “new hometown” before settling on Portland, Oregon.

But even as I write this before the move, I’m well beyond the point of no return. It’s been more than a year and a half since a divorce that broke my heart and changed my life forever. The losses have felt relentless and gut churning: my career ambition, my mother, my marriage, even my dogs. All of these once brought me happiness but are now gone. All things are transitory, the dead do not resurrect, and after a decent and appropriate time to mourn, one must move on with life. 3

I’ve changed career tracks, lost thirty pounds of excess weight (with more to go!), paid off old debt, re-entered the dating world, overcome at least the bulk of my depression, sold or given away more than half of my possessions, and now sold my house in California to buy a new one near the confluence of the Willamette and the mighty Columbia.

Thanks in no small part to friends I’ve made here on these pages, I’ve had several trips to Portland and enjoyed the friendship and hospitality of good people there, people who have gone out of their way to be good to me. Now, there’s good people everywhere, but the good people of Portland have shown me a place where I can readily access superlative food and drink, patronize the arts, surround myself with a progressive social environment, and enjoy a physically active lifestyle. It is a place where all signs suggest the environment will actively assist my pursuit of eudaimonia.

Internally, I’ve been at Herlong Junction for over half a year now. Separating myself from my roots in California’s high desert near Los Angeles. Halfway between where I came from and where I’m going. Where I’m going is now of much, much more interest to me than where I’ve been.

[Burt3] OT Contributor Network: Heard Tell Podcast Portland IRL w/Burt Likko and Tod Kelly

Burt Likko Speaks!

Burt was kind enough to join the Heard Tell Podcast along with fellow Ordinary Times legend Tod Kelly to discuss his new hometown of Portland and give a ground level view of all the news coverage of it.

[Burt4] The Two Year Chit: A Filibuster Suggestion

Burt is a problem solver! He took on a topic that is very relevant in today’s news cycle headlines: the filibuster.

Whichever party is in the minority in the Senate will find the filibuster useful; whichever party is in the majority will generally find it inconvenient. But, these days, every proposal to change the political system has to be evaluated with a metric consisting of “Is this good for my party, right now?” Democrats are interested in a no-filibuster Senate and Republicans are opposed to it.

I’m hesitant. It seems more likely than not3 to me that Republicans will re-take the Senate in the 2022 midterms (and frankly I think they have a good shot at re-taking the House). So, I’d tell Democrats that maybe abolishing the filibuster now is not only hurting themselves in the long term; they may find themselves wanting to filibuster stuff themselves, possibly as soon as January of 2023.

Instead, here’s my suggestion, to which I received a grand total of one response when I floated it on my Twitter feed recently: one Senator gets one filibuster per Congress. As with my proposal to reform the way we select Supreme Court nominees, I make no claim that the idea is original to myself, nor that it would advantage or disadvantage any party. Here’s the objection:

But leadership can just introduce a large number of bills to dilute the value of your limited filibuster.

— Rohit Gupta (@rohitgUCF) March 5, 2021

I don’t actually think the pushback I got raises a particularly salient problem. Yes, duplicate bill-introduction happens, as some scholars have documented and attributed to the motive of “credit-claiming.” So I take the point. And we’d need to figure out what happens in the event of a vacancy and replacement.

So, here’s the rule:

Each Senator may, once per Congress, interpose a filibuster to a bill or resolution then pending before the Senate by presenting the Clerk of the Senate with a Warrant of Filibuster. While filibuster is interposed, the Senate may not further debate nor vote upon passage of the bill or resolution.

The Clerk shall accept no Warrant of Filibuster as to the following: a) reconciliation of spending and appropriation bills already passed by the House of Representatives; b) ratification of international trade agreements to which “fast-track” authority shall have previously been granted by Congress; c) invocation of the Congressional Review Act; d) invocation of the War Powers Act; e) A proposed termination by Congress of a Presidential declaration of a national emergency; or f) judicial nominations [this mirrors existing exceptions to the filibuster].

The Clerk shall accept no Warrant of Filibuster from any Senator more than once per Congress. In the event of a vacancy in any seat filled by a successor through operation of state law, the successor Senator may present Warrant of Filibuster only if the same shall not have been previously presented by any predecessor within that same Congress.

Interposition of a filibuster to a bill or resolution shall apply to any succeeding bill or resolution substantially similar in content and effect to that to which the filibuster shall have been previously interposed and neither lifted nor set aside through cloture; any Senator may request a ruling from the Parliamentarian as to whether an interposed bill is substantially similar to a matter then pending before the Senate.

Cloture may be invoked upon the submission to the Clerk of the Senate a written motion for cloture signed by not less than sixteen Senators. Thereafter, if within ten days three-fifths of all Senators duly sworn indicate in writing their approval of the motion for cloture, debate shall proceed with no Senator thereafter having more than one hour to debate and no more than thirty hours debate total, divided equally between the floor managers for and against the pending bill or resolution [this mirrors existing Senate Rule 22(2), governing cloture motions].

I think the one-chit rule keeps what filibuster proponents generally say ought to be kept — the ability of a Senator to forestall the most extreme legislation that the majority might advance, and thus to force deliberation and compromise on those ideas that might be particularly sensitive to one or a few states. But it also imposes upon that Senator a substantial incentive to not do this except in extreme circumstances.

[Burt5] DC Statehood: 68.34 Square Miles of Constitutional Conundrum

Another problem Burt wades into the discourse with a solution too: DC Statehood

As I’ve argued above, we don’t need a Federal District. But in fact, we aren’t talking about getting rid of a special, extrastatial Federal District in which the government is seated. We’re talking about incorporating most of the District of Columbia into a new state. Note here, the most recent proposal for incorporation, which is called the “New Columbia” plan.

As you can see, about two square miles of territory would remain outside the borders of “New Columbia,” strategically chosen to exclude the White House, the Capitol, the Supreme Court, and a variety of Federal office buildings, the Mall, the Smithsonian, and a large number of national memorials and cultural sites.

This is a much smaller Federal district than what currently exists, but the only Constitutional specification is that the district be no more than ten miles to a side (contemplating a square shape).

One thing that would be very interesting, though, is that with a rump District, there would still be a 23rd Amendment in place, which means that the Federal District would continue to get three Electoral College votes in presidential elections. The number of people who would be residents in the rump district would be very small indeed (and would include the president and his family if they chose to register to vote in the Residence of the White House). What’s more, rent and housing prices in those areas are currently very pricey and probably would only increase. So it’s not unimaginable that Republicans might get those three electoral votes in a presidential election, until and unless the 23rd Amendment were repealed.

[Burt6] The Most Constitutional Right

Burt Likko, defender of the Constitution of the United States of America

So basic Constitutional government provides for mechanisms — clumsy and subject to political pressuring, perhaps — for the political branches of government to resolve issues of election problems. Judicial intervention in that fundamentally political process, as has already been extensively argued, arrogates to the Courts the properly political resolution of such disputes. Arguably, it violates the “Perpetuity of Government” right Judge Staton would have had the majority adopt in Juliana. But if the Supreme Court itself issues a ruling, and Congress and the president go along with it because it’s to their advantage or they lack the ability or will to successfully challenge it (as was the case in Bush v. Gore) then there isn’t really much that can be done: the public requires a substantial degree of durable outrage sufficient to reverse course in both congressional and presidential elections, which may take a long time to wind around.

I think what we’d look for by way of future exploration of this possible unenumerated right would have to be some kind of overtly authoritarian action by the executive. There are those who believe the incumbent President is likely to do such a thing, and some who allege he already has. In my opinion, what they’re really seeing is the breadth of the judiciary’s reluctance to apply the nondelegation doctrine combined with Congress’ failure to assume the leadership role in the bulk of contemporary governmental decision making. It might take something like a declaration of martial law or some sort of proclamation or Congressional act purporting to suspend the Constitution. Again, this sort of thing seems unlikely, but less so the more you think that the existing government has authoritarian tendencies.

In such a case, either the President actually has an overwhelming justification to declare martial law, or the President has an utter and complete disregard of the Constitution. In either event, such a president will simply disregard whatever any court says about the legality of his actions, and power will at that point rest with members of the military who will have to choose a side quickly and under enormous pressure. In this sense, there is no difference between the United States and any other nation facing a fundamental challenge to its system of government. That’s ultimately where I wind up with Judge Staton: by the time we confront the most fundamental Constitutional right of them all — the right to be governed by the Constitution at all — we’re necessarily at a fairly urgent state of affairs that won’t be effectively resolved by the courts under any circumstances.

[Burt7] The Great Cases: United States v. Nixon

Burt Likko the explainer breaks down one of the most consequential cases in American history so well even I can understand it:

Chief Justice Burger’s opinion was not a clarion call for the moral right in the manner of Brown v. Board of Education, but it did attempt to make a legal ruling rather than a political one. Burger had to be persuaded and perhaps cajoled and manipulated by his colleagues to getting there, or perhaps he had to compromise his preferences and vote against his own patron, but however he did get there, he got there.

It would overstate the case to say that the Supreme Court unmade a President with its decision in U.S. v. Nixon. Nixon was already in a great deal of political trouble, before the Court made its decision. But had this case been decided differently, it is within the realm of imagination that at least 34 Republican Senators would have stood by their party’s president and called him the victim of malfeasance by his overeager advisors, or at least insisted that there was a “reasonable doubt” that Nixon knew what was going on. The “smoking gun” conversation, where Nixon authorized Haldeman to tell the CIA Director to lie and stop the FBI investigation of the burglary, denied them the ability to make such a claim, leading to Senator Scott’s no doubt awkward conversation with Nixon (which was not recorded; Nixon had ordered the recorders turned off the day after Butterfield testified about them.)

It was painful for the nation to live through the consequence of the decision – painful but necessary, such that even his most fervid supporters had no choice but to see Richard Nixon for who he truly was. The “smoking gun” tape alone demonstrates the extent to which Nixon tried to subvert the rule of law, so that he personally could hold on to political power.

Two generations’ worth of perspective allows us to see with some clarity that removal of such a man from the government’s highest office, from the position of trust and honor inherent in the presidency, was necessary.

U.S. v. Nixon was, beyond doubt, the most consequential decision Burger ever wrote and probably the most politically consequential decision between Brown v. Board of Education and Bush v. Gore. However inelegantly he did it, Warren Burger may well have been the man who held the United States of America together as a lawful nation for the next two generations, contrary to the political pressures that had propelled him into that position.

[Burt8] High Sierra Ghost Stories

In which Burt Likko takes a break from legal explainers and the typical writing to punch you right in the feels with this raw, visceral, powerful self reflection.

For so long as the scars left on the hillsides from the silver mining are there, the ghosts of Virginia City will be there with them. Even if they are a little bit harder to see in a tourist trap like Virginia City than are the ones at Tallac Point, they’re there. Go and look for them. They are part of our shared cultural history and they will whisper to you if you listen.

Similarly, I’ve realized on this trip that absent something extraordinary happening to my brain, there won’t ever be any erasing the memories of my personal history, some of which are tied to this region of recreation and repose. I can avoid dealing with it if I want; no one makes me come here and I have alternatives for using my resources to take my time away from home elsewhere if I want.

Or I can accept that this is part of what went into making me who I am and not hide from my past. It’s oddly comfortable to wallow in rumination about things gone wrong in the past, which dominate over the reminiscences of things that went right in the past. Certainly I’m at a phase of my life where I’m more alone than I would like to be and most of my history here is from phases of my life that were different than this.

The dealers in the casinos might point out that sometimes you don’t get the cards you want, and if you want different ones, you need to stay in the game and play another hand.

Avoiding the past – hiding from it – is a fool’s errand that can’t succeed. It might be that if I refuse to address the pains from my past, they’ll just moulder like the shell of what used to be a 1970s head shop turned into… actually, the building I’m thinking of now is still being used as a head shop, but these days there’s a dispensary next door for easy one-stop shopping. Nevertheless, good Reader, I trust that you take my point.

Maybe I can find some way to curate my past, like the old log cabins of a 1910s-era resort, and makes something new and good out of it.

Maybe I can build on what’s there to make something that will meet the demands of the future.

[Burt9] The Politics Of Eighty Sixing

Another example of Burt writing something that is timeless in the way the issue keeps coming up again and again.

Now, make no mistake. The Masterpiece Cakeshop case was a setup, basically on both sides, from a very early point. That was always intended to be a bit of political and legal theater. Both sides got political, media-savvy allies right away and angled to keep getting the case reviewed at higher and higher levels until the Supreme Court effectively punted. It was intended to be a fight from a very early point, if not ab initio.

Sarah Sanders legitimately wanted to have dinner with her friends. She was not in Lexington, which is deep in Virginia’s Shenandoah Valley, 3 a three-and-a-half hour drive from the White House, to make any sort of a political statement. It was her night off.

And while the law remains murky as to the validity of a free exercise exception to public accommodations regulation, the law is not murky at about political affiliations: they are not protected by antidiscrimination law. You can turn someone away from your restaurant because they associate too closely with a political figure you find odious. Just as all of those eligible D.C. singles are not engaged in any kind of actionable discrimination by refusing to date Trump Administration staffers, so too is the Red Hen restaurant not guilty of breaking any law whatsoever.

My question is: how far does this go? We’re living in the Era of Bad Feelings, after all. Some things are intolerable. Other things are not. But in an increasingly polarized age, it’s easy to lose sight of just how much we will tolerate and when it’s time to raise holy hell. And in an age when anything anyone does might blow up into a Social Media Moment, political shunning carries a big risk: it makes it harder for us to talk to each other, harder for us to empathize with each other, harder for us to find common ground and recognize a fellow human in a political adversary.

In a way, it’s the “Nazi punching” debate framed differently, one relating not to the legal and existential necessity of controlling when violence is deployed, but rather to the admittedly lower but escalatable stakes question of when someone is doing something so awful politically that they are not owed the common courtesies one would freely proffer to a complete stranger.

[Burt 10] Lessons From Bar Fight Litigation

And finally, a personal favorite.

One of my first neurological-psychological speculations after the experience of deposing six witnesses and getting six different stories, and then hearing those same six witnesses each testify later, with each such story deviating substantially from the witnesses’ prior deposition testimony. I never went back to diagram it, but I believed at the time that each of these twelve stories told by these six witnesses, was in their own way mutually inconsistent with the other eleven available recollections of the disputed events (although not all of the inconsistencies was particularly material). How could this be?

I later found a neurological explanation. Memories are proteins encrusted on the outside of neurons within the brain. These proteins dissipate as the electricity flows through them and influence the direction or strength of this electrical impulse somehow, and then reconstitute when the electrical impulse is gone. Somehow, the pattern of electrical impulses is interpreted by the brain as a whole as a memory, but this means that every time we remember something, we are literally destroying that memory and reconstituting it — so each time that happens, there is a risk of error in replication. Think about how a computer file, say a JPG picture of your cat, has a small risk of data corruption every time it is used, copied, or otherwise accessed.

I’m not a neurologist. I’m not a (trained or properly-educated) psychologist. But I have had to make a study of how people behave, to take critical looks at how they seem to be thinking and communicating. So while I don’t really know if this is correct, it seems both a reasonable and satisfactory theory to explain my observations about the self-serving plasticity of human memory.

Even without my untrained and murky quasi-science, it’s nevertheless human nature that folks tend to tell stories that favor themselves, stories in which they at least don’t look bad, and generally in which they look good. About the only exception to this is when people tell stories with the intent of eliciting either laughter or sympathy from their interlocutors — then, they will tell stories that either reveal a trivially morally wrong but embarrassing behavior, or a story of overwhelming external circumstances and their own an unwise but understandable reaction to them.

The witnesses who testify in bar fight cases, which as it turns out is similar to the way witnesses testify in all cases, remember the dramatic events of the incident over and over and over again. If my theory is right, then what is happening is that people are telling themselves over and over again that they were the good guys, they were innocent of any significant moral wrongdoing, until they convince themselves to a moral certainty that this is the truth. No one wants to seem themselves as the bad guy, so they lens their own memories such that their own behavior becomes reasonable, socially acceptable, and morally justifiable. I’ve since observed that this phenomenon is powerful enough that witnesses will sometimes recant their own contemporaneous writings.

Just to round off our Bevy Of Birthday Burt, the words he wrote when he passed the reins of power at Ordinary Times off to others on September 29th, 2017:

Ordinary Times’ core function is to publish interesting things to read, multiple times every week. Ten years ago I came here looking for well-written, long-form essays that didn’t sound like sloganeering and reflected actual thought and this became my intellectual home. What an honor it’s been to have held the helm here. What an honor it’s been to have worked with so many bright and talented writers. The blog ten years ago would have been proud to post the kind of material we’re running today.

Sometimes it feels like we’re swimming against a powerful tide to push a message that a forum with multiple viewpoints is desirable, that the long-form essay remains a powerful and viable way to explore intellectual territory, and that people of different perspectives can come together in good faith and fellowship and engage in productive, civil argument. I’ve pressed as hard as I can on that during my editorship, and maybe I’ve made some mistakes along the way, but whatever the impact of those mistakes, please know that’s been the goal all along.

* * *

These are smart, dedicated people and I’ve complete confidence in them. Nevertheless, I urge you to help them out. Play nice in the comments section. Use the “flag comments” function if you think someone’s getting out of line — it really helps. Promote posts you find interesting on Facebook. Comment on articles, welcome new authors and greet infrequent authors with the same cheer you would old friends. Always keep your rhetorical swords sharp and your senses of humor intact. And when you feel like you’ve got something to say, write an essay and let them see if they can publish it!

It’s been my great pleasure to serve as the editor-in-chief. Whatever mistakes I have made along the way are strictly mine, but whatever successes have occurred under my watch have been the work of many hands and many minds. Thank you all very much for contributing to those successes. May the next and future incarnations of this project’s leadership only improve from here.

In valedictum: Scite verum, colite iustitia, vivere con gaudium.

We are doing our best with it, Burt. Happy Birthday, friend, and many more to you good sir.