Wednesday, June 09, 2010

NU Re-View: Realignment Watch

OK, my World Cup preparations are being disturbed by this noisy conference realignment story. I had intended to put my 'Husker coverage on the back burner until mid-July, but it doesn't seem like things are going to wait.

As it sits now, NU has been presented with an ultimatum by Texas - declare your commitment to the Big XII or we're leaving for the Pac-10 and taking the South Division with us. I understand the logic behind the move from Texas. The Big XII is very good to Texas, as they pretty well control the conference and still have the option to start their own television network. Losing Nebraska would significantly damage the viability of the conference, simply because the rest of the North teams don't carry enough football attraction nationally. If, as it appears, Nebraska does not yet have a Big Ten invite in the pocket of its' scarlet blazer, then it's smart for Texas to make a power play to force NU to make its' decision now.

At least, in the short term, it's smart. Whether this kind of hardball will ultimately spell the end of the awkward coupling that has been the Big XII remains to be seen. The question right now remains, what is Nebraska's best option? Here's my thoughts, in order of preference.

I know that's a surprise to a lot of people, as I have been excited about getting out of the Big Longhorn conference ever since the Big Ten first announced expansion plans. But the more I think about it, the more I think cutting a new deal with our "friends" to the south makes sense.

As insufferable as they may be, Texas is the single most powerful force in college athletics. While they've made a huge bluff (they don't call it TEXAS Hold 'em poker for nothing) about going to the Pac-10, Texas would much rather stay put where they are and put the finishing touches on a Longhorn Sports Network. For the first time since the inception of the league, Nebraska is in a position of power to dictate terms.

So what should Nebraska get to stay in the league? First of all, they would need an iron-clad guarantee that ALL members of the conference are staying put. Texas columnists are already pinning the black hat on Tom Osborne for NU's flirting with the Big Ten, but the truth is that Texas was doing just as much flirting with the hussy from up north. Texas has shown repeatedly that it will do what is in Texas' best interest, and if that means bolting for the Pac-10 in two years after the Big Ten expansion has completed, don't doubt for a second they'd go. If NU is going to give up going to the Big Ten, then the poison pill to keep NU in the Big XII needs to be big enough to keep Texas on the farm for the foreseeable future as well.

There's other things that should happen, including returning the football championship to a North Division site every other year, and modifications for the decision-making process to give northern teams more of an equal footing.

I'm also at least a little sympathetic to the plight of Kansas, Kansas State, and Iowa State. The death of the Big XII would spell big trouble for those schools. Kansas and Kansas State could end up in a geographically-unwieldy expansion into the Big East if they want to remain in a BCS conference, or in the up-and-coming Mountain West. Iowa State looks almost certain to end up in a non-BCS conference such as the MAC or Conference USA. While the marriage between Nebraska and Texas is far from healthy, there's a little argument to be made for staying together for the sake of the kids. I don't think 116 years of history is something to be thrown away lightly.

IF Nebraska doesn't get what it wants from Texas, and IF the Big Ten makes an offer, Nebraska should go. The extra dollars Nebraska would receive from the Big Ten Network would make an immediate impact, and Nebraska would be a good fit geographically in the conference.

It's not a perfect match, though. Gone would be the day-trip road games to KU, KSU, and ISU, and it would be more of a strain on the smaller sports. And, 'Husker fans, if you think you're sick of Texas arrogance, wait until you get a load of Big Ten administration arrogance. Really, the main difference between the two is the size of their belt buckles.

Still, if the offer is on the table, Nebraska almost has to go. Given the ultimatum that's been laid down, if Nebraska knuckles under without getting anything in return, then Nebraska will officially cede all authority in the conference to Texas. Kiss the basketball tournament in KC goodbye after the current deal expires. Kiss goodbye any thought of moving the football championship game from Dallas. The only thing left would be to add longhorns to the side of the conference logo.

No, it's not a Monty Python "there is no third thing" reference. IF Nebraska doesn't get the concessions from Texas, and IF there is no offer from the Big Ten, Nebraska should ignore the ultimatum and do nothing. If Texas follows through on its' threat to leave and take the division with them, the results will be catastrophic for the Big XII North schools.

Except for Nebraska. Of all those schools, Nebraska is the only one with the ability to generate viewers nationwide to make itself an attractive target for a big-time conference. I would ultimately be stunned if the Big Ten did not invite NU, although a "no other team" deal to get Notre Dame in could potentially block that move. NU could end up in the Big East. NU could also lead the North into a resurgent Mountain West conference. Currently the Mountain West is not a automatic BCS qualifier. But they're on the doorstep as things sit currently. If the BCS adds a national marquee team like Nebraska, plus the rest of the North, plus Boise State, all of a sudden the Mountain West Network (yes, Virginia, there is such a thing already) becomes a much more attractive prospect.

I really have no idea how this is all going to sort out. I suspect there's stuff going on behind the scenes we can't see and don't know about that will ultimately decide everyone's fate. If I had to guess, I would say that Nebraska will be in the Big Ten as of next week. But until we know, we don't know.

All I know is that just about my entire family on my wife's side are crazy Hawkeye fans. If NU goes to the Big Ten, and the Nebraska-Iowa game becomes the day after Thanksgiving traditional matchup, there's going to be some tense conversation over mashed potatoes and gravy over the next few years.

GBR, baby.

Tuesday, June 08, 2010

The LTG on

Thanks to Paul Lukas at for letting me be a part of his critique of the World Cup uniforms. Links are below:

Groups A & B:

Groups C & D:

Wednesday, June 02, 2010

And this is why you don't directly elect judges

Look, there's plenty of problems with appointing judges, don't get me wrong. But whatever problems they are, they pale in comparison to this. What an embarassment. From AlterNet (


New reports out of Afghanistan point to a province where Taliban followers hope to become judges, so they can apply their religious beliefs to court rulings, rather than the secular tenets of the law.

Wait, did I say the Taliban in Afghanistan? I meant Christian conservatives in California.

A group of conservative attorneys say they are on a mission from God to unseat four California judges in a rare challenge that is turning a traditionally snooze-button election into what both sides call a battle for the integrity of U.S. courts.

Vowing to be God’s ambassadors on the bench, the four San Diego Superior Court candidates are backed by pastors, gun enthusiasts, and opponents of abortion and same-sex marriages.

“We believe our country is under assault and needs Christian values,” said Craig Candelore, a family law attorney who is one of the group’s candidates. “Unfortunately, God has called upon us to do this only with the judiciary.”

I suppose the obvious observation here is that the direct election of judges — the law in 33 states — may not be the best idea.

But there’s far more to this particular problem, called the “Better Courts Now” initiative. Here we have a series of far-right attorneys who are running on a fairly specific platform — they promise to be biased, partial jurists, basing their decisions on a religious agenda. The difference between these kinds of judges and those found in Iran and Saudi Arabia is … well, there really isn’t a difference.

In other words, these judicial candidates want to turn their courtrooms into a position consistent with a theocracy. Indeed, the initiative was launched by two pastors.

“Any organization that wants judges to subscribe to a certain political party or certain value system or certain way of ruling to me threatens the independence of the judiciary,” San Diego County’s District Attorney Bonnie Dumanis told the AP.”Judges should be evaluated based on their qualifications and their duty to follow the law.”

Except that is apparently old-school thinking, which some elements of the right have no use for.

Why elect a judge who will provide a legitimate forum for a fair trial when you can elect a right-wing religious activist who believes he’s following instructions from above?

And given that voters don’t often turn out for down-ballot races like these, and that the candidates themselves are generally not well known to the public, organizers of this effort believe they have a reasonably good chance at pulling it off — and they may very well be right.

Tuesday, June 01, 2010

The "opt in" Constitution?

If you want to remain silent, you’d better speak up.

That’s what the United States Supreme Court has told criminal defendants who want to invoke their Constitutional right to remain silent. In Berghuis v. Thompkins, the Court ruled on June 01 that police can continue to question an arrested suspect as long as the suspect doesn’t explicitly tell the police he doesn’t want to talk.

The Berghuis ruling limits the rule in Miranda v. Arizona (1966), which requires police to advise criminal suspects of a number of their Constitutional rights, including the right to remain silent. (Bonus Constitutional fact – the right to remain silent comes from the Fifth Amendment’s protection against being compelled to testify against yourself).

Berghuis doesn’t change the rule that police have to read Miranda rights to a criminal suspect. What it does is allow the police to continue to question a suspect until he “affirmatively invokes” his Constitutional right to remain silent. Before Berghuis, police would have to wait until the suspect waived his right to remain silent before they could interrogate him.

In Berghuis, the police were investigating a murder. They were questioning a suspect under arrest, Van Chester Thompkins. They had Mirandized Thompkins (although he refused to sign a form acknowledging he understood his rights) and continued to interrogate him. Thompkins never told the police to stop the interrogation, so the police continued. They asked Thompkins if he believed in God, if he prayed to God, and then (start the tape recorder) whether he prayed to God for forgiveness for “shooting that boy down.” Thompkins said yes, and that “yes” can and was used against him in a court of law.

Thompkins was convicted of murder, and appealed, saying that his “yes” was a violation of his right to remain silent and should not have been used against him. The lower court agreed with Thompkins. The Supreme Court did not.

Justice Anthony Kennedy, writing for a majority that (unsurprisingly) consisted of Kennedy and the Conservative Four, said that a suspect’s waiver of his Miranda rights can be presumed when the suspect has been advised of his rights and chooses not to exercise them. The Berghuis decision significantly limits language in Miranda that said “a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.”

Not anymore. In Berghuis, the Court cut that portion of Miranda out, and fundamentally changed how a suspect’s Constitutional rights are understood. Before Berghuis, there was a presumption that a suspect will invoke his Constitutional rights (such as the right to remain silent), and the police would need the suspect to actually waive those rights before proceeding with an interrogation. Now, police can assume that a suspect is waiving his rights during an interrogation unless the suspect specifically says he is invoking those rights.

In other words, the Supreme Court changed the right to remain silent from an “opt out” to an “opt in.” It shifted the presumption from protecting the accused to assisting the government. It is, as Vice President Joe Biden would say, a big (SNIP) deal.

In the majority opinion, Kennedy said that Thompkins understood his rights when he chose not to invoke them. But how did Kennedy know that? After all, Thompkins didn’t sign the form saying he understood his right to remain silent. What if he didn’t?

Kennedy said that nothing has changed about the Miranda rule requiring a suspect to be advised of his rights in such a way that he understands them. But how can an officer tell if a suspect understands his rights if that suspect doesn’t say anything? In addition to allowing the police to assume a suspect is waiving his right to remain silent, Berghuis also allows the police to assume that the suspect understood his right in the first place and question a suspect who may not understand his Constitutionally-guaranteed right to remain silent – which was exactly the concern the Miranda court had when it made the advisement requirement back in 1966.

Strangely enough, we haven’t heard a peep from conservatives who get very upset about “activist judges” imposing their own policy views on the country. We haven’t seen a mis-spelled sign from the Tea Parties around the country who shout about their fears of the Constitution being destroyed by the socialist-communist-Marxist-Nazi-Klingon-liberal President Barack Hussein Obama. Berghuis seems to be a radical change in the law, and a significant limitation on Constitutional protections. And yet, a very strange silence from both parties.

Rookie Justice Sonia Sotomayor wrote the dissenting opinion, pointing out how the Berghuis decision “flatly contradicts” previous decisions from the Court, sets up “an unworkable and conflicting set of presumptions,” and “at worst, it overrules sub silentio an essential aspect of the protections Miranda has long provided.”

I know that’s a lot of quotes, but it’s a pretty impressive dissenting opinion from a first-timer. Although I do think she’s showing off a little with the whole “sub silentio” (meaning, basically, I’m not saying, I’m just saying) reference.

Given that Miranda has been called into question even by current Attorney General Eric Holder, I suppose civil libertarians should be pleased that the Court didn’t just outright overrule the decision in its’ entirety. But the underlying rationale of Berghuis is definitely concerning. Will the Court make other Constitutional rights “opt in” for suspects? Will the right to a jury trial be presumed waived? How about the right to an attorney?

In other words, how much more will the scales tip towards the government and away from the accused as the years go on?