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Judicial Review v. “Judicial Activism”

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by Todd Hatton

In order to fully consider an issue today, one needs to consider the issue’s provenance.  It’s like waking up one morning and finding an elephant in your flower bed.  Once you’ve realized that a five-and-a-half ton pachyderm is nosing around your begonias, and you’ve given animal control a call, you probably need to start thinking about how it got there.

Alex Nabaum

In that light, I’d like to revisit something you may have heard on The Front Page last week, a piece disparaging “judicial activism.”

The piece objects to this “judicial activism” in three cases: Perry v. Schwarzenegger, Gill v. Office of Personnel Management, and Massachusetts v. United States Department of Health and Human Services.  In Perry, Judge Vaughn Walker is said to have trampled the rights of 7 million Californians who voted in favor of Proposition 8, the measure defining marriage as between one man and one woman that once passed, became Section 7.5 of the Declaration of Rights and part of California’s constitution.

In Gill and Massachusetts, Federal District Judge Joe Tauro struck down 1997’s Defense of Marriage Act, overriding the affirmative votes of 427 congressmen and Bill Clinton’s signature.  This is the evidence that “judicial activism” is subverting the democratic process.

Leaving aside that Judge Tauro is President Nixon’s remaining appointee, and the judge in Perry, Vaughn Walker, was appointed to the bench by the first President, and setting aside that the seven million voters who approved Prop 8 outvoted the opposition by about six-hundred thousand votes, and are a minority of the 15.2 million registered and 23.4 million eligible California voters, we still have the charge that these two judges acted without restraint.  They exceeded their mandate, in effect legislating from the bench.  Or so it would seem.

I once heard that judicial activism is what you call judicial review when you don’t like the verdict.  “And what,” you ask, “is ‘judicial review’?” Read the rest of this entry »

Our Peculiar History of Religious Tolerance

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by Todd Hatton

The vote has been taken and Mayfield, Kentucky will have no mosque, at least not yet, and certainly not in any location with so little parking.  What should have been decided in a formality was rejected on a technicality, but I can’t say that the lack of transparency with which Mayfield’s zoning board first decided to approve the mosque’s conditional use permit is ever a good thing.  On the other hand, it’s difficult to see how anyone can vote their dissenting conscience under the reproving glare of a roomful of one’s neighbors.

Whether or not the results of the zoning board’s vote surprised anyone, or whether or not we approve of the result, it is of a piece with our history of dealing with religious minorities.  I’m a big fan of the notion that we can’t understand our present without understanding our past, and when the controversy over a mosque in Mayfield began to appear, I went back to a book I’d read over a year ago after hearing an interview with the author on Krista Tippett’s Speaking of Faith program.

Steven Waldman is the author of Founding Faith: How Our Founding Fathers Forged a Radical New Approach to Religious Liberty and the CEO of, the largest faith and spirituality website.  The book, in the main, is about the development of the First Amendment, religious freedom, and today’s contention over the separation of church and state.  Waldman, however, begins his book by painting a picture of religion in early America.  It is at once alien to our modern sensibilities and a little too familiar.

For instance, government officials in one state blocked the building of place of worship for one religious minority.  They were responding to what was perceived as an existential threat by a sect that had, in the past, committed atrocities, fought them in wars, and, it was believed, behind the actions of foreign governments against them.

This wasn’t New York or Mayfield in 2010, it was Maryland in 1700.   Read the rest of this entry »

To Dream, Perchance to Sleep

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by Todd Hatton

Yesterday morning, I began writing a blog post on a particular topic and ended up writing about something totally unrelated.  When I went back to figure out what happened, a massive yawn almost split my head in half.  Instead of my finding the problem, the problem had found me.  I hadn’t slept very well or long enough the night before, and now I was paying for it.

I love sleep.  I’d smile saying the word even if the act of doing so didn’t force me to.  The very thought of curling up for a prolonged snooze under cozy blankets makes me drool.  Yet, I’m not doing it enough.

Makes you sleepy just looking at it, huh?

So what, exactly, is my problem?

First, it’s not just my problem.  The National Sleep Foundation says one in three Americans is overtired because they’re not sleeping enough.  So how much is enough?

A survey of several sleep-related websites shows no one number for everyone, but The Better Sleep Council reports the average amount for adults is around seven to eight hours a night, although some people may need more.  Their rule of thumb for determining the proper amount is simple enough: if you sleep more on the weekend than you do during the week, you’re not getting enough Monday through Friday.  Of this, I am horribly, horribly guilty.

Ah, the Sleep of the Innocent...and the Shamelessly Cute. (Image from

I don’t need a raft of scientific research to know that this is no good.  If you do, however, here’s some, and some more, and yet even more.

As if that wasn’t bad enough, a lack of sleep accrues like interest, creating what’s termed a “sleep debt.” This deficit depresses our immune systems, raises blood pressure and insulin resistance, impairs cognitive functions, and reduces levels of leptin, a molecule secreted by fat cells the brain uses to inhibit appetite.

All right, so we all know now that a lack of sleep is a big problem.  What do we do about it?  The National Sleep Foundation provides a list of tips and strategies that range from the rather obvious (e.g., abstaining from caffeine early in the afternoon) to the counterintuitive (e.g., if you can’t sleep, don’t toss and turn, get up and do something relaxing).  The New York Times even recommends an optimal temperature for sleep, around 60 to 68 degrees Fahrenheit.  Anything outside that range makes us restless.

Those of us whose schedules preclude a normal sleep schedule have the unique challenge of trying to sleep when all the external cues say we should be awake.  We’re fighting our circadian rhythms, and in many cases, we’re losing the battle.

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Written by Todd Hatton

July 13, 2010 at 12:00 pm

UFW Invites Anti-immigration Advocates to Put Their Money Where Their Mouths Are

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by Todd Hatton

In August of 2008, WKMS aired a story by Carrie Pond about the H-2A program, where U.S. farmers are allowed to bring in foreign workers for jobs not filled by American workers.  Considering that the Obama Administration is looking once again at immigration reform, and once again immigration opponents are rallying to the cry of “they’re taking our jobs,” the story’s worth another listen.  In the piece, Murray tobacco farmer Mark Pascal points out that the Mexican workers coming here aren’t taking anyone’s job.  He says, “They’re doing the jobs no American wants to do.  They’re good people, wanting to do an honest day’s work for an honest day’s pay.”

Two years later, “they’re taking our jobs” is still a common sentiment.  But when one considers the nation’s 9.3% unemployment rate, Kentucky’s 10.2% rate, and Tennessee’s 10.3% rate, that sentiment seems, well, a little disingenuous if not downright hypocritical.

Now, the farm workers are calling us out on it.

In a Yahoo! news story from the Associated Press, the United Farm Workers of America say they’re challenging the unemployed and anti-immigrant activists to take their jobs.  They’ve even set up a website,, to facilitate the process.  They’ve also attracted some celebrity help.

Comedy Central’s Stephen Colbert will spotlight the campaign on “The Colbert Report” July 8.

The Yahoo! story says the campaign is tongue in cheek, but the underlying issue is serious.  It cites a U.S. Labor Department report that says three out of four farm workers were born abroad, with more than half of them in this country illegally.  The workers, legal or not, face long days and little pay.  They’re excluded from federal overtime laws and may not even get minimum wage.  On top of that, the website says sixteen states don’t require farm laborers to be covered by worker’s compensation laws.  And yes, Kentucky and Tennessee are two of those states.

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Written by Todd Hatton

July 7, 2010 at 10:47 am

To Boycott, Or Not To Boycott

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by Todd Hatton

Grand Isle, Louisiana is a town right on the Gulf of Mexico, about 745 miles from Leitchfield, Kentucky.  Under other circumstances, those hundreds of miles between one small Louisiana community and a slightly larger Kentucky town can be insular; what’s news on the Gulf Coast may not raise an eyebrow in Grayson County.

But when the news story is the largest environmental disaster in U.S. history involving one of the most ubiquitous brands of gasoline in the nation, it shouldn’t surprise anyone when the impact shows up 745 miles away.

An Associated Press report on has station owners from Georgia to Illinois saying sales have declined by as much as 10 to 40 percent.  This isn’t particularly shocking, in fact, it makes sense.  Americans are using boycotts, both organized and informal, to register their disgust with BP.  Hitting ‘em in the pocketbook, so to speak.

At a Leitchfield BP station just off of the Western Kentucky Parkway Saturday night, June 26th.

I was a little incredulous that a gas station tucked away at the bottom of a line of hills in a quiet community would have any trouble, especially since the station was independently-owned (it said so on a small, faded sign in one of the windows near the cash register).

But the demure young lady who sold me a bottle of water and didn’t want to give me her name told me otherwise.  Protesters had been taking up positions across the street holding signs and chanting slogans.  One person photographed the store while pumping gas.  Local media had even stopped by, peppering the staff with questions about threats of retribution, violent and otherwise.

I asked her if anyone had indeed threatened violence.

“Yeah,” she replied.  “We had the cops parking out there for a while.”

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Written by Todd Hatton

June 28, 2010 at 12:41 pm

His Youth Was Fully Blown…

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by Todd Hatton

John Keats began his poem “Endymion” with the line, “A thing of beauty is a joy forever.”  The phrase has descended into cliché to be sure, but it was the first thing that popped into my head this past Tuesday afternoon when I remembered, through all of the noise and numbers of the Kentucky primary, that it was a particularly poignant anniversary.  On May 18th, 1980, Ian Curtis, lead singer for the band Joy Division took his own life in the home he shared with his estranged wife in Macclesfield, in Cheshire, UK.  He had been battling depression and severe epilepsy aggravated by the twin stresses of touring and a disintegrating marriage.

It probably, no, definitely dates me that I even know who either Ian Curtis or Joy Division was.  I ran across them while in high school in the late 80s when a friend mentioned in passing that his favorite group, New Order, had been another animal entirely before Curtis’ suicide.  Another friend loaned me a tape that, among the Love and Rockets, Husker Du, and Happy Mondays cuts, contained the single “Love Will Tear Us Apart.”  The song seemed at once cool and detached and still heartbreakingly intimate, all the more so considering Curtis’ fate.

So, this past Tuesday, I poked around online and found this 2008 BBC Four documentary detailing the rise and fall of Joy Division and Factory Records, the label that introduced them to the world and created “Madchester,” the Manchester music scene that dominated until the rise of grunge in the early 90s.

I can never recommend BBC documentaries enough; I’m convinced they could describe a glass of milk and make it riveting.  This one is no exception; a thing of beauty indeed.

Written by Todd Hatton

May 20, 2010 at 9:17 am

And So It Goes…

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by Todd Hatton

Yesterday’s primary vote capped off months of intense international interest in Kentucky’s Republican contest between Secretary of State Trey Grayson and Bowling Green eye surgeon Rand Paul.  I expect the months of intense international media interest in the general election campaign to begin any minute now.

And there’s plenty for them to consider.  But, as the vote totals filter through the political and media landscape, I must respectfully disagree with the assertion floating around out there that Paul’s victory is as telling overall as it’s being portrayed.  This obviously isn’t a referendum on an incumbent and it isn’t as much of a referendum on a given agenda as it is, in this one race, an expression of the Republican base.  Consider: Grayson had accrued endorsements from former Vice president Dick Cheney, Conservatives of America, and the conservative-leaning U.S. Chamber of Commerce.  Those are the ones he kept, anyway.  Dr. James Dobson, formerly of Focus on the Family, rescinded his earlier this month and switched to Dr. Paul claiming that he had received wrong information about Paul’s platform.

Grayson did, however, score a relative rarity, a pre-primary election endorsement from U.S. Senator Mitch McConnell just a few months after he said he wouldn’t do so until after the primary.

And yet, Trey Grayson lost.

It could therefore be said that the Republican Party lost yesterday’s Republican primary, the institutional party at any rate, and if we concede McConnell’s tacit approval of the Tea Party, one has to wonder if there’s any soul-searching going on in the minority leader’s offices today.

Now, the $64,000 question is how the race between the Tea Party-backed Paul and MoveOn-endorsed Conway will play out.  Paul’s win has significantly energized his base; his highly organized supporters turning out in droves this November goes without saying.  And considering that Paul’s total far outstripped anyone else’s, he’ll have a strong showing.

On the other hand, Conway’s vote totals were higher than Paul’s by almost 22 thousand.  And if you add Lieutenant Governor Dan Mongiardo’s numbers (224,989) to Conway’s (228,531) and factor the Grayson vote (124,710) into Paul’s column (and throw Johnson’s, Martin’s, Scribner’s, and Stephenson’s in for good measure to bring the grand total to 351,927), it could presage a Democratic victory in the fall.  That is, if Conway can get those voters to the polls.

Conway also cannily reached out to Grayson voters who may be disenchanted with Paul’s particular brand of populism.  If he peels enough of them off while retaining his former Democratic competitors’ votes, Conway may have a close, though substantial win on his hands.

Of course, this is all predicated on Jack Conway having an easier time appealing to more moderate Republicans than Rand Paul would drawing off conservative Democrats from Conway.  And that’s further balanced by the fact that the Republicans tend to be an ideologically more disciplined group most of the time.

Either way, no matter how significant Paul’s win yesterday may be, it’s still too early to tell if any damage has been done to the establishment wing of the Republican Party.  After incumbent President Lyndon Johnson’s landslide 1964 victory over Senator Barry Goldwater, the pundits got busy writing the Republicans’ obituary only to have it thrown back at them when Richard Nixon beat Hubert Humphrey in 1968.  It may be that the best gauge of where the Republicans are will come in the fall, when we’ll find out how a Tea Party candidate fares against a moderate Democrat in a rather red state.

Written by Todd Hatton

May 19, 2010 at 4:25 pm

Support for NPR Comes from Member Stations…and The Haus of Gaga. This is NPR.

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by Todd Hatton

Things are getting a wee bit tense these days, and it’s very likely that something pointless and silly is in order.

No doubt, you’ve heard of or seen the video of U.S. soldiers of the 82nd Airborne re-enacting Lady Gaga’s video for “Telephone.”  (BTW, if you haven’t seen either the 82nd’s or Gaga’s, they are, to put it mildly, interesting.  But for vastly different reasons.)  I smiled, and even giggled a little.

However, I laughed until Twining’s Irish Breakfast Tea came out of my nose at this latest version, performed by our stalwart colleagues at National Public Radio’s Washington studios.  Heck, I would’ve paid to see Robert Siegel recite Gaga’s lyrics,  but I’m glad I didn’t have to.  So, here ’tis…

Just don’t say I didn’t warn ya.

Written by Todd Hatton

May 6, 2010 at 8:06 pm

You Will Be My Witnesses

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by Todd Hatton

Today is the day Jews around the world commemorate the millions lost to the Nazi genocide.  Known colloquially as Yom HaShoah, its full name is Yom HaZikaron laShoah ve-laGvuron, “Holocaust and Heroism Remembrance Day.”

In honor of this day, and in honor of those taken from us, I’ve posted this link to an April 20th, 1945 BBC radio report from the Bergen-Belsen concentration camp, liberated by the British 11th Armoured Division five days earlier.  It is, quite possibly, the most compelling piece of sound I have ever heard.

In the clip, a group of survivors hold their first Shabbat service in as much as six years.  With tremendous effort, the emaciated survivors sing “HaTikva,” which translates as “The Hope.”  As BBC correspondent Patrick Gordon Walker notes, “Forty-thousand or more had been cleared but there were still one or two thousand around and people were still lying down and dying in broad daylight in front of our eyes… During the service, the few hundred people gathered together were sobbing openly with joy at their liberation and with sorrow at the memory of their parents, and brothers and sisters that had been taken from them and gassed and burned. These people knew they were being recorded. They wanted the world to hear their voice. They made a tremendous effort, which quite exhausted them.”

That these people, surrounded by death and the loss of so much and so many precious to them, could still sing of hope is one of the most profound and moving testaments to the resilience of the human spirit.

זיכרונם לברכה

Zichronam liv’rachah.  May their memories be for blessing.

Written by Todd Hatton

April 12, 2010 at 8:23 am

A Slightly Sunnier Afternoon in Murray

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By all estimates, I’ve had a pretty darned good day.  Morning Edition went well enough, work on tomorrow’s Front Page went swimmingly, I had a wonderful conversation with Berry Craig, an old friend and teacher, and everybody seemed to be in the kind of genuinely good mood that makes you think Something Is Up.  I made it home, got some research done for an upcoming feature and a book idea I’m tinkering with, and even managed an all-too-brief nap.

Turns out my day was rather pedestrian.

When I awoke from that nap, I found that the MSU Racers Men’s Basketball team, had beaten Number 4-seeded Vanderbilt in their opening game of the NCAA Tournament with a last-second shot from forward Danero Thomas.

Let’s just savor that for a moment.

We can also savor New York Times sportswriter Billy Witz’s statement that Murray State’s 66 to 65 victory over the Commodores is the biggest upset of the tournament so far.  See for yourself.

According to the Associated Press, Coach Billy Kennedy dismissed the idea that it was anything other than darned good basketball.  “They can say it was an upset,” he said, “but we’ve got a good team. They’re a very good team. We’ve got good toughness and good character. It definitely wasn’t about a coach drawing up a great play. It just goes by what the feel is.”  Well said, sir.

Nevertheless, I detected more than a little bit of surprise from the national sports punditry.  The first sentence in Sports Illustrated‘s Ann Killion piece read, “He (Thomas) wasn’t going to get off the shot, was he?”  Killion went on, however, to enumerate the reasons why Thomas had every right in the world to not only get the shot off, but sink it too.  After all, the President of the United States himself predicted a Racer win.

I do have to confess that I liked the way she ended the article.  “Jeffery McClain — in the game because Tony Easley had fouled out — inbounded the ball because Kennedy wanted a big guy who could see the court.  McClain got the ball to Miles. Miles dribbled it and swung it around to Thomas.  Who dribbled it, pulled back for the jumper, and changed the history of Murray State with one motion. He got the shot off.”

I liked it because of what it said, not just directly, but in its subtext.  These guys played like a team, the gods of good sportsmanship guiding every movement of the players and the ball.

And on top of all of that, consider what the Racers are doing for the University in a very real, and possibly lasting, way.  The hard work they’ve done has placed Murray State front and center before a lot of people.  They’ve made the aforementioned New York Times and Sports Illustrated, but they’ve also appeared on websites like mental_floss and  Publicity like that might bring in more and better student athletes from around the country and it may even draw a second look from those less concerned about basketball.  With all that could come from Murray State’s presence at the tournament, with all that it took to get there (our thoughts are with you, Picasso), the satisfaction of beating Butler and giving Syracuse the fright of their lives is the least these guys deserve.

Wait a minute…a 2010 NCAA Championship trophy is the least they deserve.

So, my hat’s off to Coach Kennedy and the Racers.  I don’t know if they’ll make it to Indianapolis and win it all, but I hope they d0, even if they have to beat my beloved Kentucky Wildcats to do it.