Holiday special 2016

Musicam novam præsento. I’m calling this one my “holiday special”; it’s a fun little thing that came out of mucking around with a bunch of vAnalog synths. (I had spent several days writing to Adam Lastiwka’s very electronic Travelers soundtrack and was inspired to spend a studio day working with electronic sounds, which I haven’t really fiddled with since this.) In terms of production-approach and mix, nothing has really changed from Saoirse and Between Breaths, so I don’t have a lot to say about that. I will say a couple of things about instrumentation.  

The main synth lead is an Elektrostudio Davosynth, an emulation of a two-VCO monophonic Italian synthesizer, which sounded okay until I rammed it through a distortion plugin, and all of a sudden it became holy crap! That guitar-synth duel thing is familiar from, say, Dream Theater or this, and that big, cutting synth sound lends itself very nicely to sparring with the Ibanez. Among other things, there’s also three 6MJ polys (also from Elektrostudio), which provide both the synth underpinning the guitar chords at the top and also the arpeggiator, a MinimogueVA (does exactly what you’d expect), an EVM UltraSonique (provides some quasi-modular bubbling noises) and a couple of different string-machine synths providing pads. There’s also a Korg M1 and Roland D10 lurking around in the mix; that big square-wave pad that comes in under the solos is the M1, which sounds as glorious today as when I first heard it on Mike Oldfield and Genesis records over two decades ago. Lastly, there are both acoustic and electronic drums; the electronic snare is from a Linn emulation, and I can’t remember off the top of my head whence the kick. 

I should say that if there is one word that captures the feeling, it’s wistful. This has been a difficult year. But there’s an ecstatic quality in the second guitar solo that recalls the Between Breaths solo, and I think that makes a lovely contrast.

Of our current moment

So tedious a thought is it that I might have to spend four years prefacing my every comment with the same words, again and again, that I might have a t-shirt made up:

“#NeverTrump, I didn’t vote for him—buuuut…”

Rich Lowry has a pretty good piece in the National Review this morning, arguing against what he calls a “coup.” Over the last month, a growing drumbeat has been heard from the sinistral side of the aisle, demanding that electors refuse to vote for Trump, either electing Hillary Clinton or at least throwing the election into the House. (For sake of concision, I’ll call them “Podestites.”) Now, “coup” is a strong word, but Lowry argues that “the norm of electors rubber-stamping the election’s winner is so ingrained in our system that any deviation from it would constitute a revolutionary act.” And the “rationales advanced for a radical departure from the practice as established over a couple of centuries are tinny and unconvincing at best.”

#NeverTrump, I didn’t vote for Donald Trump—but I agree. I have some remarks to offer on three aspects of the moment.

As to the so-called “electoral college” (something of a misnomer, but a common one): Here is my Scalian view on this. 1 We have a text, article II of the Constitution as amended by the Twelfth Amendment, which directs that “[e]ach State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress … [who] shall meet in their respective States” to cast votes for President and send to the Congress the results. Reading this cold, one might expect that in this system, the fifty “electoral colleges” would function as a deliberative body. That the framers expected it to function in such manner is undoubted; Alexander Hamilton’s Federalist 68 is explicit on this point.

But we also have a tradition that they do not. As early as 1833—not halfway into the administration of only the seventh President of these States United— Justice Story remarked that the founders’ expectations as to the operation of the electoral college had been confounded  

in the practical operation of the system, so far as relates to the independence of the electors in the electoral colleges. It is notorious, that the electors are now chosen wholly with reference to particular candidates, and are silently pledged to vote for them. Nay, upon some occasions the electors publicly pledge themselves to vote for a particular person; and thus, in effect, the whole foundation of the system, so elaborately constructed, is subverted. The candidates for the presidency are selected and announced in each state long before the election; and an ardent canvass is maintained in the newspapers, in party meetings, and in the state legislatures, to secure votes for the favourite candidate, and to defeat his opponents. Nay, the state legislatures often become the nominating body, acting in their official capacities, and recommending by solemn resolves their own candidate to the other states. So, that nothing is left to the electors after their choice, but to register votes, which are already pledged; and an exercise of an independent judgment would be treated, as a political usurpation, dishonourable to the individual, and a fraud upon his constituents. 2

Lowry is correct; we have already heard from Hamilton, who continued in Federalist 68, underscoring the importance of procedural regularity: “[In designing a means by which the President be selected, it] was also peculiarly desirable, to afford as little opportunity as possible to tumult and disorder.” And he assented to its later amendment precisely for fear of procedural irregularity: “[B]ecause the present mode gives all possible scope to intrigue and is dangerous as we have seen to the public tranquillity.” 3 Story, too, noted the wisdom of an electoral college as a bulwark against the nation being “convulse[d] … with any extraordinary or violent movements….” 4 The text of the Constitution is in many regards open-textured; one can easily imagine other systems of government that fit into its text. An imperial presidency in which all executive-branch officers are simply ministerial vassals of a micromanaging President regnant a la Nicholas II is the logical endpoint of the unitary executive doctrine—yet, although Presidential power over the executive branch (and aspiration as to the other two) has waxed and waned between Windsorian and Romanovan, the American tradition has never gone to such an extreme. 5 The electoral college is similar. We can imagine a system in which the electors deliberate, and that system fits within the textual boundaries. But that system is not our system.

Now as to Russia. Articles about this tend to shroud the specifics of what’s being alleged under vague abstractions: “Interfere,” “hack,” “influence,” and similar. At bedrock, there seem to be two concrete allegations in service of a third insinuation. The first is that the FSB hacked into the email accounts of the Republican and Democratic National Committees and senior Clinton officials, and provided some or all of those materials to “Wikileaks,” which may be (stories vary) a useful idiot, a cats-paw, or an FSB front. Second, “Russia” (presumably although less than necessarily, the FSB) engaged in a campaign of information warfare: Fake news, manipulation of social media using automated accounts (for example, pushing the “trending” rankings on Twitter), that sort of thing.

I will stipulate arguendo that the FSB hacked the DNC and Camp Clinton and released a trove of hitherto-private documents, hoping to influence the election. 6For all that is secret will eventually be brought into the open, and everything that is concealed will be brought to light and made known to all” notwithstanding, this is a matter of concern. Any foreign power’s espionage in obtaining private information (and so leverage) on any American citizen or organization is concerning. 7 Where I have beef is the Podestite non-sequitur that if this is true, therefore Trump’s election was illegitimate and we must either have another election or the electoral college must take extraordinary steps to deny Trump the Presidency. (A third possibility, logically intermediate between these two proposals although never one that seems to appeal to those advancing the break-with-tradition argument, is simply for states to appoint new electors. 8) My objections to the latter, I have already covered, and as to the former, I would note simply that the Podestite proposal is not rationally related to the supposed harm to which it supposedly responds: The same Russia-disclosed information would still be in circulation.

I confess suspicion that the vagueness in the reporting and the frequency of that magical word “hack” is a deliberate play in support of the Podestites. Perhaps sensing that these concrete allegations are somewhat weak tea, what it is perhaps hoped that we might glean is a third allegation, one made only by insinuation (there seems to be little or no evidence for it): “Russia” somehow “hacked” the voting machines, compromising the process and so directly interfering in the election. That would make the Podestite positon rational and something less than brazen partisanship. That would be deeply, profoundly troubling. But there is no evidence for it—not even enough, it would seem, to allege it openly.

Finally, a few words on the supposed “national popular vote.” Bluntly: There is no national popular vote. To be sure, we can make one up, as a matter of mathematics. Every state currently appoints its slate of electors subject to statewide plebiscites, and we could aggregate the votes cast for each candidate in each of those plebiscites plus those cast in the District of Columbia and call the result a “national popular vote.” It is, doubtless, a soothing fiction for the losers. But as a matter of political process, it’s otiose. That isn’t how we elect Presidents. There’s a recurring defect in left-leaning political thought: “We can change a system without affecting the behavior of the people in the system. We change the rules, behavior stays the same, therefore the change effects the desired result.” But it doesn’t work that way; whether it’s tax policy or election rules, if you change the system, everyone knows it, and changes their behavior accordingly. You don’t have to be John Rawls to realize that you can’t hold the vote, see the results, and then decide what system those votes should be fed into! And if you change the system by which Presidents are elected to a nationwide plebiscite—lots of luck—everyone will knows it, and the behavior of voters and the campaigns that target them will change.

I didn’t vote for Trump; I lament his election and the apparent orphaning of the conservative movement in America. (Surely no conservative or libertarian can call a populist GOP home.) But he won. Those of us who were so confident that he would not should be chastened by that fact—it is a time for self-reflection, not subversion. And it wasn’t so very long ago that those who would not commit themselves in advance to the results of a hypothetical election result were “horrifying … [and] really troubling” (inter alia); astonishing, then, that those who nodded along with those sentiments (quite rightly) now refuse to accept in fact the results of an election that has actually happened. At the final debate, Hillary Clinton was emphatic that Trump much accept the result, like it or not. He can’t just wait and see how it turns out:

[T]hat is not the way our democracy works. We’ve been around for 240 years. We’ve had free and fair elections. We’ve accepted the outcomes when we may not have liked them. And that must be expected of anyone standing on a debate stage during a general election.

She was wrong that the result at issue would be her election as President, but she was right about the principle. And the principle’s the thing.


  1. See generally Ralph Rossum, Antonin Scalia’s Jurisprudence: Text and Tradition (2006).
  2. Joseph Story, Commentaries on the Constitution § 1457 (1833).
  3. Hamilton, letter to Morris, March 4, 1802.
  4. Commentaries, § 1451.
  5. See generally Peter Shane, The Law of Presidential Power (1988).
  6. With characteristic sanity, the Rt. Hon. Charlie Cooke suggested in an appearance on the Fifth Estate podcast that the motive is being assumed erroneously; it is at least conceivable that the FSB assumed that Trump would lose and that their goal was to damage the incoming President Clinton rather than to elect a President Trump.
  7. Cooke, again, is astute in asking why it is Trump who is blamed for this, rather than the actual President who actually presided over it happening.
  8. See Bush v. Gore, 531 U.S. 98, 113 (2000) (Rehnquist, C.J., concurring).

Populus Coloniarum Duodecim vs. Gaius Baltar

As @BSGMuseum’s #bsgglobalrewatch2016 gets ready to head into the last stretch of season three, “the trial of Gaius Baltar,” Laura observes that “for all his crimes, he’s one of us,” and the question is put: Upon first watch, would you have found him guilty/innocent before his trial?

That’s not straightforward to answer. The easier answer takes for granted our knowledge as the viewer, so let us set aside the epistemological problem for a moment and assume that we are to judge Baltar on the basis of what we know qua the near-omniscient audience.

On Caprica before the Fall, Baltar was a “top consultant for the ministry of defense on computer issues,” with extensive access to the defense mainframe. He was involved with a woman; he seems to have believed that she worked for a defense contractor and, because of his relationship with her, he allowed her to use his access to “pok[e] around inside the defense mainframe” in the belief that it would help her company bid on a contract. The colonial equivalent of the United States Code surely includes crimes for which Baltar could be tried on these facts; unauthorized use of defense information, for example. (Cf. 18 U.S.C. §§ 793(d) et seq.) But to charge him with espionage, collusion, conspiracy, or even, preposterously, genocide (as the Roslin administration later presses Prosecuting Attorney Cassidy to do) would require something much more: Intent. And as the audience, we know he didn’t have it. It could not possibly have occurred to him that she was a Cylon agent. No one had seen a Cylon in forty years, and the last time someone did, they looked “like walking chrome toasters”; Baltar could not possibly have anticipated the transition to organic bodies. And his reaction when she tells him approximately ten minutes before the attacks confirms that he did not know. Accordingly, knowing what we know, Baltar must be thought not guilty on the explosive charges that President Roslin would like to level against him.

The case that Cassidy ultimately brings against Baltar instead hangs on his conduct on New Caprica. Shortly before the first post-Fall election, Margaret “Racetrack” Edmondson and Hamish “Skulls” McCall discover a habitable planet in a freak accident. The military and civilian leadership appears to have let word get out, and when Baltar—by then the candidate opposing Roslin in the election, and trailing in the polls—made settlement his signature issue, he won. (Worthwhile sidenote: With the permission of President Roslin, her Chief of Staff Tory Foster conspired with the Galactica‘s XO, Col. Tigh, to rig the election for Roslin; when Gaeta-supporter Lt. Gaeta discovered this play in media res, Admiral Adama lost his nerve and failed to back Tigh’s play; the fraud was outed and Baltar declared the winner.) Settlement proceeded, but a year later, the Cylons discover the planet, what remains of the fleet flees, and the Cylons take de facto control of the planet, making the Baltar administration its puppet. (Three later remarks that formally, the Cylons are there simply as aides and advisers to the legitimate government of the colonies.) Baltar is left with little choice but to do as they say: In at least one instance, his cooperation is forced at gunpoint. What exactly Cassidy charges him with is never specified, but knowing as we do that Romo Lampkin and Lee Adama are correct that Baltar’s choice was between cooperate and do whatever he could or resist and die and become the proximate cause of the extinction of the entire human race, it seems fair to say that whatever Cassidy charged, duress would excuse Baltar’s conduct.

Let us now deal with the knottier problem of how we might apprise Baltar in-universe. The epistemological problem is this: We as the mostly-omniscient viewer are privy to more information than any or all of the characters, and we have more emotional remove. To see this problem in another context, consider the mutiny: Most of the crew, to say nothing of the people of the fleet, have not (as we have) looked over Adama’s shoulder in private meetings. They haven’t seen the challenges that Roslin and Adama have worked through. They don’t know that we’re in the back half of the last season, so don’t worry, guys, it’s almost over. What the average person in the fleet knows is: The Cylons are the bad guys, they killed almost all of us, they’ve hunted us for several years at this point, Adama’s promise to get us to Earth turned out to be worthless (even if it was technically fulfilled), and now all of a sudden we’re being told “oh, don’t worry, these Cylons, you can trust, oh, and by the way, the XO is one of them, it’s cool.” Come again? Now add to that: You might think to yourself, you know what? What did President Zarek ever do that was so bad? And because gossip travels, you might also remember, hang on, didn’t Adama vote to acquit Baltar on charges of collaborating with the Cylon enemy? Didn’t Gaeta turn out to be a hero of the resistance to that enemy? You might even recall (as Racetrack does explicitly in “The Turning Point”) that your friend Felix, diligent, nerdy, loyal, reliable Felix, lost a leg so that Starbuck—very likely a Cylon herself—could run off to collaborate with the enemy. Is it really so clear that, on the information available to them, that they were wrong?

How then are we to assess whether Baltar is innocent or guilty without access to the information that we would have as an omniscient viewer? From whose viewpoint are we to decide? Adama’s? Laura’s? What do they know? In fact: Frak-all. Laura’s direct knowledge of what Baltar did behind closed-doors is almost nil; her testimony and Col. Tigh’s seek to impute guilt by association, speculation, and hearsay. Ah, but surely Gaeta, who served as Baltar’s Chief of Staff, has the goods? He does not. If he did, he could have testified to events that he witnessed, without having to perjure himself as to events he did not witness. In fact, none of the witnesses called by Cassidy are able to offer relevant testimony, and every single one of them is masterfully impeached by Romo Lampkin, esq., with the exception of Gaeta whose perjury is essentially beyond rebuttal. We are left with a vague charge supported by vague, unreliable evidence. If we take the position that the best place from which to assess Baltar’s guilt or innocence is that of a judge at his trial, we cannot but agree with one of the judges: “The defense made their case; the prosecution didn’t.”

Ultimately, it is hard to disagree with a single word of Lee’s de facto closing argument (and a towering Jamie Bamber performance):

Did the defendant make mistakes? Sure, he did. Serious mistakes. But did he actually commit any crimes? Did he commit treason? No. It was an impossible situation. When the Cylons arrived, what could he possibly do? … What would you have done? If he’d refused to surrender, the Cylons would’ve probably nuked the planet right then and there. So did he appear to cooperate with the Cylons? Sure. So did hundreds of others. What’s the difference between him and them? The President issued a blanket pardon. They were all forgiven. No questions asked. Colonel Tigh used suicide bombers, killed dozens of people. Forgiven. Lieutenant Agathon and Chief Tyrol murdered an officer on the Pegasus. Forgiven. The Admiral instituted a coup d’etat against the President. Forgiven. And me? Well, where do I begin? I shot down a civilian passenger ship, the Olympic Carrier, with over a thousand people on board. Forgiven. I raised my weapon to a superior officer, committed an act of mutiny. Forgiven. … I’d say we’re very forgiving of mistakes. We make our own laws now, our own justice. We’ve been pretty creative at finding ways to let people off the hook for everything from theft to murder. And we’ve had to be. Because … we’re on the run. And we have to fight to survive. We have to break rules. We have to bend laws. We have to improvise. But not this time—no! Not for Gaius Baltar. No, you, you have to die. Because we don’t like you very much. Because you’re arrogant. Because you’re weak. Because you’re a coward. And we the mob, we want to throw you out the airlock because you didn’t stand up to the Cylons, and get yourself killed in the process. That’s justice now. You should’ve been killed back on New Caprica, but since you had the temerity to live, we’re gonna execute you now. That’s justice!

This case is built on emotion. It’s built on anger, bitterness, and vengeance. But most of all, it is built on shame. It’s about the shame of what we did to ourselves back on that planet. And it’s about the guilt of those of us who ran away. Who ran away. And we are trying to dump all that guilt and all that shame onto one man, and then flush him out the airlock and hope that that just gets rid of it all. So that we can live with ourselves. But that won’t work. That won’t work. That’s not justice. Not to me. Not to me.

Election day, 2016

In May, when a plurality of the GOP defiled the party by nominating Donald Trump, I walked out and said that I would not vote for him. Today, I did not vote for him.

Instead, I stood in line for thirty minutes and voted for Carly Fiorina. Until last week, my intention had been to vote for Evan McMullin, but I discovered that my write-in ballot for either of them will not be counted; I do not mean that it will not count, mind you, but that it literally will not be counted. (See Ind. Code § 3-12-1-1.7(a)(1).) By voting for McMullin—though he is a good, brave, and honorable man—I would not be adding to a count of McMullin votes that can then be waved as proof that we weren’t all insane, as I had intended, or to legitimize his election by the electoral college in the public mind. The instrumental value of my vote is, in this case, literally zero.

But a vote has a moral value, too. Fiorina was my first choice; it befits that she be my last choice. I didn’t get to vote for her during the primaries. I did my part and voted for Cruz in order to stop Trump. My vote in May could have but didn’t stop Trump winning Indiana’s primary, but nothing I do with it today will stop him from winning Indiana’s votes in the electoral college. That being so, I will take the opportunity to finally vote for the person whom I actually wanted to be President—the person whom we should have nominated, and who, had she been nominated, would undoubtedly been our next President. (A good one, too, I think.)

Tomorrow evening, America will have elected a person for whom I did not vote. If my brethren wish to surrender the highest office in the land to either a crook or a chintzy charlatan, that’s their business. But they will not make of me an accomplice to that act.


How I use e-mail

I have previously explained how I use Wunderlist and iOS. This post tackles a productivity problem that I see all the time. Dear reader: Is your inbox a disaster? Do you open Outlook and look upon a reverse-chronological list of every email you’ve ever received and feel a sense of dread and frustration? Verily: Do you (appropriately for Halloween) shiver with fear when opening… nay, at the very invocation of the dreaded word… E-mail?

You need a system for managing your e-mail. You need it right now—but the problem is so massive and frustrating that you don’t know where to start and you don’t even want to think about it. Dear reader: Have hope.

One of the changes that I made to my life last summer—for reasons explained in my Wunderlist post—was to get serious about the realities of e-mail. It was “do or drown.” I was receiving nearly two hundred e-mails a day (don’t hold me to this, but I think that the specific number when I averaged it over a week was 185) and things were slipping through the cracks. And, yes, I had a spiderweb of creaky ad-hoc mail-processing rules that had built up over the years directing some of the more obvious it to a folder called FILTER, and, yes, I had the mortal remains of various attempts to implement a folder structure, but my inbox was still a disaster. So, one day, I held my breath and deleted all those rules and started from scratch.

To be clear: I wasn’t reckless about it; I didn’t just snap one day. I had given it some thought. I already had the idea of a folder called FILTER as a place to route things like vendor email. Merlin Mann’s “Inbox Zero” concept was useful, but too rigorist to be implemented pat in my situation. The value to derive from Mann’s talk, I think, is its premise: The ideal state for your inbox is empty. Nothing should permanently live there; the only two things that belong there are unread messages and messages that still require some action from you. Everything else should be either deleted or archived.

Also influential on me was the notion of actionability. The e-mails about which I most need to be concerned are those that either require action of me or facilitate action by me. This will sound harsh, but—and I think that if you take the time to look at your own inbox the experience will bear it out—the vast majority of e-mail that is sent to you “FYI” or “CC” is not very useful, and it’s urgent only very rarely. In the mine-run of cases, people use carbon-copying the way drunks use lampposts: For support, not illumination. Much the same goes for internal mailing-lists, and the more recipients on the list, the lower the average value of messages sent. Again, it sounds harsh, but if your organization has an AllStaff list, I’d bet that any given message sent to it is more likely to be about a bake-sale than it is to communicate useful information that you, individually and specifically, need to know and act upon.

With these things in mind, the question that I asked myself before starting again was, “What do I want to see in my inbox?” For me, at that time, the answer was:

  • I want to see things if they are
    • sent directly to me from within the organization,
    • directly to me from outside the organization if they are actionable,
    • sent to the distribution-list for my department by someone within the department, or
    • sent by my boss, her boss, or my immediate colleagues.

To implement that, I created three basic rules: “Internal bulk mail,” “external bulk mail,” and one rule to rule them all, the usually-redundant but almighty “Default rule.”

  • “Internal bulk mail” dumped anything from a sender within the organization that was not sent or carbon-copied directly to me (i.e. I’m getting it because I’m on a distribution list) into the FILTER folder, and tagged it with the blue category, unless it came from specified senders, which allowed me to exempt a few people whose mail I always wanted to hit my inbox. (Don’t worry, beloved former colleague reading this; you were totally on the exemption list. I certainly wanted to get your email about your bake-sale!)
  • “External bulk mail” similarly dumped messages into FILTER, but the matching criteria were a little different. Vendors eventually get your e-mail address and send messages directly to you, and so any time I saw repeat-offenders, I added their e-mail domain to the filter rule. You can’t get rid of one-off drive-bys, but over a few months, you build up a pretty good blocklist that catches most of it.  
  • Lastly, the default rule bridged the gap. Any e-mail not sent directly to me: If I wasn’t at least carbon-copied on it, it goes into FILTER.

These three rules, plus a few more for categorization, fixed e-mail. That is to say a lot in two words, if you think about how broken most people’s inbox so let me say it again: They fixed e-mail. If you are drowning and missing actionable items because of the crush, if your inbox currently has more than, say, a dozen unread messages in it, you should think seriously about implementing something like this system. Your version won’t look precisely like mine, because everyone’s needs and preferences are different, but this is a good place to start.

It does, however, come with a warning. The key to this system is that you have got to look at FILTER. You can’t treat it like a spam folder and ignore it, because these rules are massively over-inclusive. A few times a day, you should glance through FILTER and see what’s going on. But here’s the thing: Now you aren’t panning for gold in your inbox; you can just very quickly glance over a list of messages that probably aren’t actionable—might be interesting, you might read or flag something that catches your eye—and then go back to your inbox. It’s not that I’m never interested in knowing that there’s a bake-sale, it’s just that when that e-mail is aggregated with all the other stuff that is, you have to admit, of lower priority than an email saying “I need help with a presentation that’s taking place in ten minutes,” it lowers the signal-to-noise ratio of my inbox. Information overload is a real problem, so, to avoid missing that which is vital, we have to be clear-eyed and unsentimental about that which isn’t. 

This is where we can pivot and talk briefly about categories and why they’re so useful. When I would look through FILTER, obviously I was much more concerned to be attentive to internal messages, and those stood out because they had the blue category attached to them. Similarly, I had a rule that applied the red category to e-mails from “important” senders, and the teal category to e-mails on which I was merely carbon-copied. When I arrived in the office and opened Outlook, I knew what needed my attention first: Messages that are in my inbox and which don’t have a category. That’s because I have rules dealing with predictable messages—it’s unpredicted messages that are the most likely to be from people within the organization who require action.

The only downside to categories is that, unlike rules, they don’t work on iOS devices attached to your mailbox (even, frustratingly, in the Outlook app—thanks, Microsoft, good job), and as I transitioned to using an iPad as my primary e-mail platform (we can talk about RSI another time), that became more and more of a problem. I don’t yet have a solution to offer, beyond pointing out that the nice thing about Mail is that you can mark people as VIPs, and that can serve the same function as my “red” category—you probably want your immediate colleagues and boss on that list.

Finally, a word about outflow. The main reason that I couldn’t implement Inbox Zero was its focus on emptying your inbox every time you deal with email. That was impractical for me. Sometimes you don’t have time to write a response on the spot; sometimes an email requires action from someone else. And, yes, sure, you could create a folder called “pending” and put those messages in there, but “out of sight, out of mind”—that’s the whole point of FILTER. I think that the more practical solution is to leave e-mail that still requires action in your inbox and conceptualize your inbox as a tasklist: Any message in my inbox is an action-item, either I haven’t yet read it and need to, or it’s waiting for me to do something with it.

But what happens when you have acted on an e-mail, when you’re done with it? I see a lot of people who have complicated folder-structures, and maybe that works for you, maybe it doesn’t. There are sometimes good reasons for that “virtual filing-cabinet” approach. To me, though, it feels obsolete. Think about it (this is Mann, again): When you’re trying to find an email, what do you do? Do you dig around in your folders? Or do you just search? Odds are,  the latter. So for me, the simplest solution is the best: Create one folder called “prearchive,” and drop everything into that when you’re done with it. (I would suggest that, having implemented rules to keep your inbox clear of non-actionable items, it is only rarely that you will delete an e-mail that hit your inbox.)

As with all these productivity posts, my suggestion is: Take from this whatever is useful to you and applicable to your situation, and leave aside what isn’t. There’s value to be mined from systems like Inbox Zero and GTD even if you don’t implement the full system. I hope this gives you some ideas about how to go about taming your inbox.

No Hero of mine

No one throws a perfect game. Even the best shows have iffy episodes, and it’s fitting that the worst episodes of particularly-great shows are particularly-bad. For Battlestar Galactica, that’s “Hero,” a disastrous hot-mess from the third season, penned by David Eick. 1

BSG had cranked out mediocre episodes before, especially in season two’s midseason swell. But the worst that one can say about “Black Market” and “Sacrifice” is that they’re dull filler episodes; yeah, we get a bit of context on why Lee is such a prick when we met him in the miniseries, and yeah, we get a mostly-good guest turn from Dana Delany as a forgettable character to send off Billy—yawn. Luciana Carro singlehandedly rescues “Scar”; she had by that time locked into Kat, and was fast developing her into one of the most interesting characters on the show.

But “Hero” is uniquely awful. It is bad fanfic that made it onto the screen because it happened to be written by a showrunner. No other episode is so riddled with problems, still less threatens to seriously warp the canonical timeline, and for that reason, it is the only episode that I expressly excluded from any level of canon that I accept for purposes of writing The Racetrack Chronicle and another backburner project in the same continuity. (Project index BSG5, for those counting.)

In this post, we’ll look at what went wrong.

What makes “Hero” a bad episode?

In “Hero,” set two years after  the Fall, a Colonial pilot—captured a year before the Fall on a mission behind “the armistice line”—manages to escape the baseship where he was held, stealing a jerry-rigged raider, and jumps around randomly, pursued by more raiders, until he happens upon the fleet. He reports that the Cylons on said baseship had become mortally sick—a plausible claim for both the audience and in-universe given the events of the preceding episodes—affording him an opening to break free.

In a cold-open flashback, Admiral Peter Corman 2 briefs then-Commander Adama about a mission; “we may never have this opportunity again,” he says (why?), and underscores that the mission is off-books and cannot be discovered. In the present, we learn that this flashback took place about a year before the Fall. What was the mission? The story that Adama initially tells to a visibly-skeptical Laura and Tory is that Tauron colonists were drilling for minerals on a moon close to the Armistice Line; the admiralty was fretting that this could provoke the Cylons (why?), so Bulldog was sent to recon the situation, and the colonists shot him down. Seeing no ejection on DRADIS, Adama left without further investigation (why?). Laura isn’t buying it, but Adama blows her off and says that it’s his mess to fix.

Meanwhile, Tigh has been relieved of duty to deal with lingering PTSD from the events on New Caprica, and is confined to his cabin, seething at Adama. He, too, knew Bulldog, and when Bulldog comes to visit, Tigh lets slip the truth, which the audience learns in an intercut scene: The Valkyrie shot Bulldog down on Adama’s order. Adama confesses the real story to Lee. The Valkyrie was on a secret recon mission intended to ascertain the likelihood of a Cylon attack on the Colonies. Some in the admiralty believed (correctly, as it turned out) that the Cylons were building a war-machine in anticipation of attacking, and Adama was sent to put a stealth recon bird “just beyond” the armistice line—“stick our nose over, gather evidence, see if there was any suspicious activity.” Lee catches onto what’s been eating at Adama these last two years: Adama feels personally responsible for starting the war. He led a mission that the Cylons might have seen as an act of war had they detected it, and he’s convinced that they indeed detected it. With Bulldog “two clicks” (sic.) over the line, an unknown contact jumps in, takes out Bulldog’s engine, and jumps out, whereafter two more contacts jump in, closing rapidly on Bulldog’s disabled stealth ship. To ensure that the incursion is not detected, Adama destroys the stealth ship with a missile, not realizing that Bulldog has punched out, whereafter Bulldog is presumably captured.

Starbuck finally figures out that it’s a setup (duuuuuuh), that the raiders pursuing Bulldog must have missed on purpose. Naturally, she takes her evidence to the CAG. No, wait, she doesn’t. She takes it to Adama… No, wait, she doesn’t. Instead, she goes and sees the suspended XO, because… Reasons. Good timing; Bulldog is understandably pissed at Adama and is beating him to death with a pipe. Tigh arrives to intercede, puts Bulldog on his ass, and launches into a soliloquy:

Tigh: You don’t wanna believe it, do you? I know. The truth hurts, Bulldog, but it’s better to know the truth than to live a lie. We’re all soldiers, Danny. We’re all expendable. And we did what we had to do to protect the mission; it’s ugly, but there it is. The Cylons let you go. The question is why? Ask yourself that, Danny. Because up until a minute ago, you were doing exactly what they wanted you to do. Come here, and learn the truth, and seek revenge. And that’s exactly what you did. You almost gave them what they wanted. I’ll tell you a dirty little secret: The toughest part of getting played is losing your dignity. Feeling like you are not worth the oxygen you are sucking down. You get used to it. You start to believe it. You start to love it. It’s like a bottle that never runs dry, you can keep reaching for it over and over and over again.

Adama: So how do you put that bottle away, Saul?

Tigh: I don’t know. One day you just decide to get up and walk out of your room.

Adama thereafter offers Laura his resignation, she refuses, gives him a medal honoring his years of service, Adama tells Bulldog that they still need him as a pilot, Tigh comes to mend fences with Adama, aaand it’s an episode.

Nothing makes sense.

Nothing in “Hero” makes any sense. Let’s start with the obvious, small-bore stuff:

  • Adama tells Corman that there’s only one pilot whom he trusts to fly the stealth-ship that is to be involved in the clandestine mission. How convenient; why?
  • The President of the Colonies wants to meet Bulldog; why?
  • You feel that we’re supposed to boo-hoo about those warmongering admirals who feared that the Cylons were preparing a strike and who were willing to take risks to detect and defend against it. Maybe I’m inferring too much, maybe I’m being skewed by knowing too much about the times in which the episode was made and the political views of the producers, but I think that Laura’s cynical suggestion that Corman played Adama to provoke a war puts a fine point on that feeling. We know, however, and in-universe Lee knows, and Laura knows, and everyone knows, that those admirals were right. That is exactly what Cavil was doing. Corman is what Admiral Marcus should have been in “Into Darkness,” had the production not stupidly changed him into a mustache-twirling villain in the bottom half of the movie: He is the guy who looks out to the horizon and sees the storm coming and says “boys, we’ve gotta find shelter.”
  • Racetrack not in this episode.
  • Three’s Nyquil-daze allows Bulldog an opportunity to lamp her, whereupon she struggles back and it looks like he’s killed her. But that doesn’t explain how he got out of his cell. Only later does Bulldog claim that the cell door was left open; only 1) it wasn’t, we saw, and 2) even if it was—for realsies? It takes the characters way longer than is plausible to see the holes in Bulldog’s story. It’s left to Starbuck (of all people) to start asking obvious questions: How come the raiders couldn’t hit a sitting-duck? How exactly did Bulldog escape? How exactly did he manage to stumble onto the fleet, a task akin to throwing a dart from orbit and hitting a particular minnow in the middle of the pacific ocean?
  • Tory observes that “this year marks Adama’s 45th year in the Colonial fleet,” which is problematic albeit not fatal, and we can talk about the timing later. (The nub of it is that the math says Adama must have been an underage enlistment.) And Adama’s “commission” refers to him as a petty officer, which is an enlisted rank, even though it’s well-established that only officers fly planes.
  • Bulldog’s raider is brought into the bay on a gantry that 1) is hitherto-unseen, even when it would have been useful in, say, the “Razor” flashbacks, and 2) physically can’t possibly go all the way into the elevator on which the Raider must have come into the hangar-deck.
  • The med-bay monitor monitor has weird 3D graphic that you’d expect to see on Star Trek, not BSG.
  • We cut directly from Cottle telling Adama that Bulldog’s captors kept him well-fed to Bulldog wolfing down noodles like he’s not eaten in months.
  • “Stealthstar, Valkyrie, we register you on DRADIS.” Think about that for a moment. “Hi, stealth plane designed to be invisible on radar, this is air-traffic control, we register you on radar.” What?
  • “I’m exactly two clicks past the line.” You’re exactly… two thousand meters… past a line… in space. I can’t even. I’ll come back to this in a moment.
  • Adama shoots down Bulldog to avoid detection of the incursion. But the cat’s already out of the bag! A raider (presumably) has already jumped in, identified the target, and fired on it.
  • “Meet me on the port hangar-deck for the ceremony.” What?! The port hangar-deck? Okay, “Hero,” you’re going out of your way to draw attention to set-reuse?!
  • The episode is laced with production weirdness and errors, too, as if the production team just shrugged and said “It’s a David episode, let’s just get through this.” The photo of Adama and his command-staff in the Valkyrie’s CIC not only includes Bulldog for no in-universe reason, 3 it shows then-Commander Adama wearing an Admiral’s rank-device. They didn’t bother to swap them out on the jacket. This is perhaps a nitpick, but the production-quality on BSG was very high (you don’t realize how high until you watch it on blu-ray), perhaps because the doco filming-style meant that the production team had to assume that literally anything could be on camera and therefore had to be right. “Hero” itself has an instructive comparison: Adama’s resignation letter. The production team could have worked up a letterhead and filled the letter itself with lorem ipsum, but no, they took time to actually write Adama’s resignation letter even though it’s in-focus on screen for all of three frames.
  • In this episode, it bothers me that Adama leaves his reading-glasses on when he’s not reading. I realize that Olmos was consistently inconsistent about this, but in most episodes my mind just lets it go. In this episode, watching with a skeptical eye, it’s a constant irritant.
  • The characterization is off, too. An instructive comparison is between the scene in which Adama finds himself alone in his quarters after Bulldog and Laura leave and the cognate one in “Pegasus.” Seeing Adama physically lash out feels very strange.
  • Why does Adama confess right now, and why to Lee?
  • Racetrack still not in this episode.
  • Tigh’s soliloquy—with a caveat to which I’ll return below—makes no sense at all. It has no connection to the situation whatsoever; it sounds like a speech that Eick had had in his back pocket for a while, pasted awkwardly into that scene as spec dialogue, and never got around to revising.
  • “You’re not getting off that easy; once a pilot, always a pilot, Bulldog.” And we never saw him again. (That medal, either.)
  • The episode cuts from Adama on the hangar-deck receiving a medal in dress greys to Adama on the hangar-deck sending off Bulldog in duty-blues to Adama in his quarters back in dress-greys.
  • Lastly—because this one is hard to quantify, the episode feels fat and flabby, too. The editing is off and the writing is wooden and fanfic-y; in particular, a lieutenant calling a commander by his first name? A commander who’s now an Admiral? (I know Adama’s a soft-touch, but can you imagine even Starbuck, Adama’s ersatz daughter, calling him “Bill”?) .

But all this is as naught compared to the big problems.

First, the notion of an “armistice line” in space is mind-boggling—it takes the already-tenuous concept of a “neutral zone” and amps it up to eleven—and the idea that any useful intelligence might be gleaned by putting a plane two kilometers over it is simply stunning. What did they hope to find? Baseships amassed on the border, as if they have to assemble there like an army in the Napoleonic wars, poised to march into Colonial territory? Seriously? One of the things that distinguishes BSG from, say, Star Trek, is that while it isn’t hard sci-fi and doesn’t pretend to be, it is certainly and consistently aware of the scale and scope of the universe. The very fact that Adama can see a raider or baseship on DRADIS from the Colonial side of the line from a battlestar-sized array shows why the whole mission is absurd. (Recall that in “Pegasus,” the initial DRADIS contact is at a range of “1700”—which at the scale of space cannot be meters, it must be at least kilometers.)

Second, while I’m not in the business of defending Starbuck, the idea that Bulldog could jerry-rig a Raider in the same way that Starbuck does in “You Can’t Go Home Again” seems to drain the force out of Starbuck’s accomplishment, making it seem like hotwiring a car. Leoben’s remarks about Kara’s feat in “The Plan”—chronologically-sooner than “Hero”—underscores how unlikely this is. Heck, Bulldog even figures out how to use the wireless! Even the preternatural Starbuck couldn’t figure out that trick.

But let’s give that one away. It’s the notion that Bulldog could hotwire a raider and stumble onto the fleet, randomly, that’s too much to bear. This strains credulity far beyond breaking-point. And, morever, it’s well-established that a ship can’t be tracked through a jump, and even though the implication of “33” would seem to be that the Cylons can figure it out in about 33 minutes, we’re presented with a “hot pursuit” scenario. So how did the two pursuit raiders keep following the one stolen by Bulldog? How did Bulldog possibly stumble onto the fleet in the vast ocean of space? And once they jump into range of the Galactica, two raiders—machines built to hit targets—can’t hit a target raider hacked up and flown by a prisoner who’s never flown one before, over several minutes of screentime? Can we really be expected to believe that no one thinks that this is all far too suspicious to believe until Starbuck starts looking at the gun-camera footage?

What makes it a terrible episode?

All these problems, however, merely plunge “Hero” to the depths of “Black Market”—perhaps a little lower. What makes it terrible is that it creates a dense tangle of tension and contradiction within the A-canon.

Canon establishes unequivocally that William Adama had commanded the Galactica for several years before the Fall. In the Miniseries, on the day of the Fall, Kelly implies her has served under Adama for some time and Gaeta is explicit that he has served under Adama for “these past three years.” In “Act of Contrition,” two weeks after the Fall, Adama says that he and Starbuck have been aboard “this ship for over two years.” In “Litmus,” seventeen days after the Fall, Adama says that Tyrol has “been under my command for over five years, and if he really wanted to take this ship down, he could.” (In “Resistance,” Tyrol lists the ships on which he has served; the Valkyrie is not one on them.) In “The Farm,” two months after the Fall, Adama says that Boomer “was aboard my ship for almost two years,” to which Tigh adds in “Sacrifice” that Boomer “reported aboard two years ago”—an odd phrasing if she reported aboard a different ship.

If “Hero” is right, all of these statements (and probably more that I’m forgetting) are wrong.

Before some clever-clogs jumps up and says “maybe Adama was on loan to the Valkyrie for this one mission”—well… Maybe? There’s evidence for that. Adama tells Corman that he’ll do the mission on one condition, that he has to have his men, which is a weird line if Adama’s command is the Valkyrie; why wouldn’t he have his men? And the Galactica has Bulldog’s DNA on file, which—because this isn’t Star Trek—would be weird had Bulldog not been assigned to her. So you can perhaps argue that Adama’s command is the Galactica and Corman loans him the Valkyrie for the mission.

But that’s weird, too. Why not just send the Valkyrie? Why Adama? It feels very fanfic: It has to be Adama, of all the commanders in the fleet, because he’s our character from the show, that’s why. And besides, the episode itself provides compelling evidence that points the other way:

  • At the very start of the episode, we see a “publicity shot” from the Valkyrie’s press office, showing the senior staff (caption “Cmdr Adama with the command crew on [sic.] the CIC”). You don’t take publicity-shots for one-off secret missions. The photograph, if it means anything, means that Adama conned the Valkyrie before his assignment to the Galactica, whenever that might have been, a fact that I do accept as canonical in the background materials.
  • When Bulldog and Tigh meet, Bulldog wants to know how Tigh ended up “on this old bucket, anyway? What happened to the Valkyrie?” Tigh insinuates that Adama was relieved of the Valkyrie and assigned command of the Galactica as retribution for mission on which Bulldog disappeared.

Perhaps the coup-de-grâce is that BSG itself never treats “Hero” as canon. Adama never again wears that medal, even though we repeatedly see him in dress-greys. We are told that Adama grew up in Qualai, CA, but in “Blood & Chrome” he insists that he’s from Caprica City, CA. And, again—even though Adama makes a song-and-dance about how they need all the pilots they can get 4and we never see him again.

None of this is to say that “Hero” doesn’t have its moments:

  • Opening the episode on Tricia Helfer’s legs is a can’t-lose opening-gambit.
  • As always, the cast does its very best with the material, and with actors of this caliber, their best is very good notwithstanding the material. Carl Lumbly, the guest-star playing Bulldog, hits all the right notes. Good to see Carro back as Kat, and Donnelly Rhodes’ Cottle would have won the Bob Newhart Award for doing a lot with very little had Leah Cairns not locked that up early and often. Lucy Lawless is effortlessly-charismatic in a brief scene as a desperately-ill Three (“do I look that bad?” she asks Bulldog; no, Lucy fLawless, no you do not.)
  • Gaeta’s bewilderment at Adama’s decisions picks up a card for season four.
  • Bulldog’s joke when asked how he escaped is genuinely laugh-out-loud funny; it’s so good that I half-suspect that it was ad-libbed on set, and the chemistry between Olmos and Lumbly is good.
  • Our first real glimpse of a Valkyrie-type battlestar—a design that the Pican Racetrack will in the Chronicle dismiss as the ugliest thing she’s ever seen, and her Virgan inamorato David as “very Scorpian,” resembling a “predatory insect” 5 —is exciting. The production did a great job of finding a design that looked like a plausible bridge between the Galactica, the mercury-type Pegasus, and the old Galactica model from the original series.
  • Bamber and Olmos are fabulous together as Adama confesses, and McCreary’s sound-design is astute. Abstract, distant percussion redolent of vast industrial machinery or a distant thunderstorm clatter in the background, and an orchestral cue borrowed from “Exodus”—the scene in which the camera pulls back from a seemingly-doomed Galactica, alone, taking a beating from multiple baseships—underscores the centrality of honor to Bill Adama, a Caprican by birth but of Tauron heritage. Moreover, Eick’s choice to have Adama come right out with it up-front and then explain the context is wise, and the tension ratchets up much faster because they’re not hiding the ball. And if I could buy into the underlying premise, Olmos’ portrayal of grief that this man personally demonstrated to the Cylons that war was coming and that their only option was to strike first (whether true or not) would be heady stuff.
  • “It wasn’t just you. They put you there … you had no choice … You were one mission, you were one man. One man.” “It only takes one.” That was fabulous—well-written, well-acted.
  • The deteriorating relationship between the Colonies’ civilian and military leadership in the days leading up to the Fall was hinted at as far back as “Home,” and it’s a thread that I pick up in BSG5.
  • I have ignored the B-story, Three exploring the interstices between life and death on the baseship. It’s good.
  • Tigh’s soliloquy is, if severed from the context, it’s actually really good in vacuo. So, too, is the banter between him and Adama at the very end of the episode.
  • Laura laying down the law on Bill never gets old.

“Hero” and “Caprica” demonstrate precisely why a project of this scope has to be (as the Chronicle and BSG5 are) undergirded by a spreadsheet that assigns precise dates to everything. 6 BSGW tries to contain the damage by excising the time-markers, but it shares my skepticism of the episode. For my purposes, “Hero” is radioactive, and it has to go. It cannot be part of the canon. The best way to deal with it, I think, is to imagine that there is a deleted-scene at the end in which Adama wakes up with a start, shakes it off, and says “well that was a horrible dream,” and goes back to sleep. Olmos has the panache to pull that off, and it would preserve the good while paring the bad.


  1. The “production” side of the Moore-Eick dynamic duo, as compared to Moore, the “writing” side.
  2. Identified in BSG5 as the Chairman of the Admiralty Board and Deputy Chief of Fleet Operations to Edward Nagala, the CFO.
  3. This would be like me photoshopping Racetrack into a photograph of the Galactica’s command-staff on her last deployment—Cdr. Adama, Col. Tigh, Ltc. Waters, Gaeta, Dualla, etc. If any pilot were to be included in such a photograph, it would be the CAG—which is, as Lee points out, the book says to be a job for a captain or a major, not a lietenant.
  4. A claim that is false even by its own lights; just two episodes earlier, Racetrack noted that with the Galactica absorbing the Pegasus’ pilots, there are “too many pilots not enough birds,” and frankly, I trust Racetrack to know the roster that better than Adama.
  5. In background notes for The Racetrack Chronicle, I have some backstory on the disconnect between the Galactica’s design and those of the Valkyrie and the Pegasus. During the war, you had the original twelve battlestars as the capital ships of the new colonial fleet. As the war expands and drags-out, it becomes apparent that twelve ain’t going to cut it, so production would be standardized and centralized, probably on the model of the Virgan and Caprican battlestars, the Bretannia and her sister-ship the Galactica, squeezing out variant designs. We can make smaller ships faster, but we still need battlestars (i.e. FTL-capable fighter-carriers with big guns), and we need to churn out a lot of these things, so we need a smaller, cheaper variant that’s faster to produce, so the Scorpians design the Valkyrie-type and start cranking them out while other facilities build the bigger, heavier Galactica-type and experiment with other variants. After the war, you’re not going to throw ships away. You’re going to keep operating what you have. But the admiralty is also going to look to the future and say, “okay, look, we no longer need to operate four shipyards, but we do want to be mindful about replenishment of the fleet over time.” So Scorpion Yards gets the nod, they become the fleet shipyard, and naturally they build what they’re tooled for: Valkyrie-type light battlestars. And they start developing a new heavy battlestar replacement patterned on the same tooling, which will eventually become the Mercury-type. Over thirty years or so, the older ships are phased out, and the Mercury-type becomes the mainstay, giving us battlestar groups comprising a Mercury-type, a couple of Valkyrie-types, escorts, and supports.
  6. In the commentary to CAP: “Apotheosis,” we learn that Willie Adama was intended to be Bill Adama, but they botched the math on his age. For want of a spreadsheet, a retcon was born.

Can we dispense with the “Brexit shows that Trump can win” red-herring?

It is fair to say that literally no one in Britain’s first, second, third, or fourth estates saw Leave’s victory coming in this year’s referendum, just as virtually no one on the American left (it would be redundant to add “and media”) can imagine Trump winning. But there the analogy stops.

In Britain, there was no empirical basis for Remain’s certainty; to the contrary, “[t]he polls consistently indicated that there was a very real chance that Britain would vote to leave. Polling averages even showed ‘Leave’ with a lead for most of the last month; over all, 17 of the 35 surveys conducted in June showed the Leave side with the edge, while just 15 showed Remain ahead.” Remain’s overconfidence was nothing more than arrogance and the blinkering effect that social media can have when one chooses to close-ranks and have only friends of the same political stripe. (A deadly mistake, I submit.) 

By contrast, American polls have consistently shown scant possibility of a Trump victory. 538’s model has fluctuated between overwhelming certainty of Clinton’s victory and near-certainty of it; only once in the entire year, in the last week of July, have the chances of a Clinton victory been below 60%. And when Trump has had good polling weeks, prima facie? The surge has invariably turned out to be in states that he is already likely to carry, which benefits him nil. Trump could win the popular vote, but whether he loses California by one point or twenty, he still loses California.

To be sure, I agree that polls understate Trump’s true support; I said so on the podcast in August. If I were inclined to vote for him, I wouldn’t admit it to anyone, least of all a pollster! But they understate it by a percent or two—not by enough, and not where he needs it. They might understate it by two in Ohio, but they certainly don’t understate it by five in Florida or ten in Pennsylvania, and if you think Trump can win without carrying all three of those states, I’d like to see your map.

Like Charlie Cooke, I fluctuate between depression and fury that, in a year that could have seen the election of a decent conservative President, a threadbare plurality of the GOP party nominated  Donald Trump, about whom I have said plenty already.  I will presumably be voting for Evan McMullin, although I may yet revert to my original plan—”write in Carly Fiorina or Laura Roslin.” My point in this post, however, is not whether Clinton’s coronation is a good or a bad thing; it is simply empirical reality. My unhappiness at it does not change the numbers. And unlike Brexit, where the polls consistently showed that it was close and could happen, our polls consistently show Trump headed to the worst defeat since Mondale.

The hung court

The Supreme Court began its new term this week, which by law and custom means that it’s time for the Amicus podcast’s term preview with Tom Goldstein. A bit of context: Following Justice Scalia’s untimely death in February and the Senate’s refusal to confirm a successor until after this fall’s Presidential election, the Court seemed to bed down for a long eight-justice interregnum. As Goldstein explains in more detail, the justices would seem to have striven to grant cases that would not leave them evenly-divided. Thus did the term open Tuesday with argument in a pair of cases presenting the pizazzy questions of  whether a “scheme to defraud a financial institution” under 18 U.S.C. §1344 requires proof of a specific intent to cheat (rather than to deceive alone) a bank (Shaw v. United States) and whether a vacated, unconstitutional conviction can strip an acquittal of its preclusive effect under the collateral estoppel prong of the double-jeopardy clause (Bravo-Fernandez v. United States; if it sounds sufficiently complex to be fun—alas, nope.)

Lithwick puts to Goldstein this proposition: We have a term full of boring cases, the court is avoiding blockbuster cases, the justices are trying to behave themselves, and why isn’t that awesome? The court, some might say, has overreached, getting its claws into absolutely every aspect of American life for too long, including many that it has no business deciding, and if it’s now pulling back, why isn’t that for the best? My ears pricked up; that is, to some extent, my own view. It’s not a term full of boring cases, it’s a term full of lawyerly cases; the court is avoiding cases that courts had no business deciding in the first place, and the justices’ comporting themselves as serious, intelligent people is refreshing in an era in which every other American institution has gone insane. The court is, in other words, doing more-or-less what I want it to do.

How does Goldstein respond? First, he characterizes this as a kind of “institutional nihilism,” observing that there are also people who are happy with a do-nothing Congress—but “we need the government to function.” This bears on two conflicting lines of thought that I have advanced over the years. On the one hand, I have suggested that for those of us who want to shut down 90% of the federal government, suspending 99% of it might be thought a win. It’s not great, because that 9% is very important, but between a federal government doing many things that it shouldn’t and a federal government not doing a few things that it should, there is much to say for the latter. On the other hand, I have also made the same point as Goldstein (recently, for example, on the podcast): The government has to function, the mail has to be hauled.

One line of attack on Congress that I have soft-peddled in recent years (because it sounds too much like a different and meretricious argument that became common in the early Obama years) is that Congress is dysfunctional because it seems unable to deal with routine business when the voltage goes up on unrelated partisan fights. Uncontroversial nominees get used as bargaining-chips for controversial nominees. Uncontroversial but important bills languish while pompous buffoons bloviate about controversial bills. It would be optimal for Congress to function better. It is a serious mistake, however, to think that the function of Congress is to pass bills, which is the predicate of the argument that we need it to function and a do-nothing congress is ipso facto not “function[ing].” In the same way, it is a serious mistake to think that the court is only functioning when it takes a particular case or kind of cases. And it is similarly a mistake to think that to the extent that we need government to work in the sense that the mail must be hauled, that if any particular function (especially a non-core function) is not being carried out, the government isn’t working.

Goldstein adds that we want the courts to function, we want them to act as a check, we want them to protect the powerless. This brings us back to “institutional nihilism”; I originally took that as a barb (and a rather silly one), but this argument only works if that line is more than rhetorical. Does he really think that anyone wants Congress and the Supreme Court to do nothing? Of course the court must be in business; no serious person doubts that. The question is what business it should be in. Can Tom Goldstein, of all people, really believe that the Supreme Court is as good as shuttered if it keeps its mucky paws out of the high-voltage social cases and focusses on, say, IP cases? Or that those who would make the argument that a law-focussed Supreme Court is a good thing want a court that decides no cases at all? That I doubt.

His second point is much stronger. He observes that it’s not as though the courts are retrenching—those big, sexy cases are still being filed, and they’re still being decided, but they’re being decided in the lower courts, which raises the troubling prospect that, for example, the Second Amendment could mean one thing on the west coast under Ninth Circuit precedent and something entirely different in the south under Fifth Circuit precedent. The uniformity of Constitutional law disintegrates, and the institutional function of the Supreme Court since the Cert Act has been precisely to resolve such splits, to ensure the uniformity of federal law.

As a matter of principle, I am inclined to agree. But we should be careful about being too abstract: Which is better, a 4-3-1 court that doesn’t take high-voltage cases, or a 5-3-1 court that takes them and gets them wrong? That’s what Goldstein seems to miss. And the justices themselves know this; they—well, seven of them, at any rate—aren’t stupid. One reason why the court has generally avoided abortion cases (to give only one example) is that neither the progressive bloc nor the conservative bloc has been quite sure of Justice Kennedy’s vote. Each side looks at the petition in a “sexy” case and does a machiavellian calculation: “We may like/dislike the decision below, but better that it stand and the law be wrong in that circuit than we take the case, lose Kennedy, and the law be wrong coast-to-coast.” Whether it is a persuasive argument or not, that is the argument: If we can’t get a majority to decide high-voltage cases right, better to have a court that decides only low-voltage cases.

Who knows what the future holds? The optimal result of this election would have been the appointment of at least one justice by President Fiorina, but that isn’t going to happen. Like Goldstein, I presume that the next President will be Hillary Clinton, a prospect that does not overjoy me. But if the Senate does not ultimately confirm a successor to Justice Scalia, a de-facto eight-member court that confines itself to actual law would not seem the worst outcome.

“The Double-Edged Sword”—director’s cut

Last semester, I took a “ConLaw as History” class, and in view of Justice Scalia’s then-recent passing, it felt befitting that, for the final project, I was able to take a nice, hefty swing at one of his bêtes-noires, the doctrine of so-called substantive due process about which he spoke often. I have finally completed my “director’s cut” of it (a few things had to go from the submitted version to meet the word-limit and deadline), and those interested may find it at this link. I had fun writing this one, and tried to capture something of the flavor of Scalia’s writing (an impossible task; say what you will, but the man knew how to turn a phrase).

A quick “state of the projects” update

Coming out of the summer hiatus, I have project-indices on six fiction projects at the moment:

  • BSG1, “The Turning Point,” went out on private preview over the summer; I got some good feedback, I did one additional draft in August and will start another pass on or about October 1. It covers “Escape Velocity” through to “Daybreak,” addressing the mutiny 
  • BSG2, “Poseidon,” is still missing an important section, but it, too, went out in the private preview, and is in territory roughly akin to a third-draft. In the last couple of weeks, I’ve continued to fill in detail at the margins to get my mind back into that headspace; I will be working on it next week. It covers Racetrack’s time in officer-candidate school, starting six years before the Fall.
  • BSG3, WT “Galactica,” had a first-draft rushed for inclusion in the preview. I took another pass through it about a month ago and will be doing the second-draft (a technical phase in my shop) this week. It covers Racetrack’s deployment aboard the Galactica, starting sixteen months before the Fall leaving her where we met her in “Kobol’s Last Gleaming,” with a brief coda immediately before “Final Cut.”
  • BSG4, WT “Nightfall,” is going through its third-draft iterations. It’s actually almost there, but I’m in no hurry since it will appear last, covering as it does Nicola Edmondson’s last days on Caprica going into the Fall. (In the Chronicle appendices, there is a deleted scene in which its events become important to contextualizing Racetrack’s enthusiasm for the Caprica SAR in “Lay Down Your Burdens.”)
  • BSG5 is in development. There is a first chapter and an increasingly-fat binder of development work under the project-index. It isn’t a Racetrack story—none of the Edmondson clan will appear, although Tory Foster and Paul Katraine keep our connection to the show—but is within the same continuity and would vastly expand the horizons of the world in which the Chronicle is set. It is an enormous undertaking. The scale of detail required, the number of questions to which answers must be posited—there’s a lot, and I loudly insist to anyone who will listen that I am not writing it. Not until the Racetrack Chronicles are complete, certainly. But development grinds on.
  • BSG6 is a short-story coda to Racetrack Chronicles, giving Gareth “Nightlight” Lowell’s background on the Pegasus with (inter alios) Hamish “Skulls” McCall. “Galactica” shows us one iteration of military life in Racetrack’s last deployment, tucked out-of-the-way on long-haul duty on an old ship. There’s a certain appeal to showing you more of life aboard the plum assignment, the crown jewel of the fleet. A story-outline exists, and I sometimes get in the mood to go hang out with Lowell—an unexpected side-effect of working on this has been that you sometimes miss the characters when you haven’t written them for a while—and write a scene, but this one is very much on the backburner. (Sorry, Lindsay!)

Some of you are aware of the general dimensions of the project;  the background notes and last week’s addendum explained in more detail. But just in general, I’ll add that I have either two or six projects, depending on how you count it.

Racetrack Chronicles is mostly a prequel cycle, starting about six years before the show and dovetailing into season one; BSG1 bridges a gap in season four. Its heart and focus are Margaret “Racetrack” Edmondson and her friend Abigail “Spitfire” Ainslie. There are a lot of themes played in the background—many of which continue in RDM’s spirit by taking the presented worlds and mythos dead-serious (how serious? Dead serious) and asking what the social and psychological implications are if this is reality. But fundamentally it’s a story about these two women and how they’re the same and how they’re different. (It has nothing to do with science-fiction. I like science-fiction, but you could stick these two characters aboard an aircraft-carrier today and tell the same basic story.) That project is technically broken up into four pieces, two novelettes and two short-stories, but put together, it will probably clock in at a little over 45k (about 44 written, another three or so to come, give or take some trimming) which means means that you could treat all four and their voluminous, tolkene appendices as a single novel-length piece. 

During the summer hiatus from the Chronicle, I have also been developing, bit by bit, what would presumably be a full-dress novel set in the same universe, starting about a year before the Fall. I am, emphatically, not writing it. Just doing development. It has a completely different scope and tone; where the Chronicle is very personal and focused on Maggie, this would be very broad and political in scope, and would really give a much more detailed glimpse at my vision of that world. I’m going to play a little coy publicly about what it’s about (publicly, anyway; ask me privately), but the BSG5 project-index has gotten alarmingly fat. 

This year has been a fascinating experience. I feel like I’ve come a long way since I started writing “The Turning Point” in late February, really just to give Leah Cairns a better account than I had for Racetrack joining the mutiny. I had never written fiction before this year—not since school, certainly. But it has provided an interesting opportunity to approach writing in a very different way, to leverage the tools of the trade for other purposes. I look forward to a productive Autumn.