Difficulty Level: Very Hard #53

Abstract: For the second time in just over a year the president will have an opportunity to nominate a new Supreme Court Justice. Since this is essentially a lifetime position with the ability to rule on crucial social issues, the choice of Justice is necessarily important.

Vocabulary: Appelate, Preempt, Filibuster, Undercut, Polarize, Magnitude, Constituency, Equipoise, Deputy, Imperative, Docket

Kagan RevolutionObama will choose the solicitor general for the Supreme Court. Here's why.

By Thomas Goldstein for The New Republic

In my February post on the nomination process, I anticipated that the administration would treat Solicitor General Elena Kagan and appellate judges Diane Wood and Merrick Garland as the leading candidates to replace Justice Stevens, and that it would ultimately select Kagan.

My reasons focused on positives about General Kagan as a nominee—including the great respect for her intellect, her well-regarded ability to bring left and right together, her experience, her relative youth, and that she would be a second female nominee for the president—but I also thought it was significant that among the three leading candidates she seemed to be the best political fit. Judge Wood, I thought, would generate genuine opposition (which would be potentially significant for the mid-term elections), while Judge Garland was sufficiently to the ideological center that he would be an essentially “safe” choice that the administration would not make absent a collapse in its political fortunes.

When I wrote that post, the administration’s political fortunes differed from present circumstances in at least two ways. First, uncertainty about health care then cast a dark cloud over any prospect that the White House would invest itself heavily in a nomination, as opposed to other priorities. The administration has more capital to expend now, if it wants. Second, it has had the opportunity to gauge Senate Republicans’ reaction to the “short list” of names. That reaction has been distinctly muted.

Given the changed circumstances, I’m now ready to update my assessment and conclude that in light of the changed political climate I think that the president will nominate . . . Elena Kagan. I just now think that politics will have less to do with the choice.

It seems clear to me that none of the three nominees—including even Diane Wood—will generate a knock-down, drag-out fight in the Senate. In effect, the White House preempted the prospect of an all-out war by not including the leading liberal prospects in its published short list of finalists. The Bush White House took a similar approach when it nominated the conservative Samuel Alito, but passed on then-Fourth Circuit Judge Michael Luttig, to whom Democrats had signaled their very strong objections.

Thus, no Republican Senator has been materially critical of either Kagan or Garland. To the contrary, Republicans have been sending signals that neither would generate an enormous fight. I

think that she would receive only 65 votes and he would receive ten to 20 more, but both would be confirmed without a significant disruption in the Senate’s business.

More surprising, institutional Republicans have not been particularly vocal in their objections to the potential nomination of Diane Wood. Judge Wood’s abortion-related opinions would mean that she would receive only in the range of 55 to 60 votes. But confirmation would still be all but assured. Moreover, not only is there no filibuster on the horizon, but her nomination also does not seem like it would require an awesome investment of political capital that the Administration would prefer to expend somewhere else. To the extent that a fight occurred, the White House is no longer so consumed by health care, and it could engage the debate heavily without significantly sacrificing other priorities.

The nomination of Wood does present distinct issues because abortion—which she alone of the three has been called upon to address—raises the prospect that the nomination could be used by conservatives as a rallying cry for the 2010 midterm elections, in which Democrats face the prospect of losing control of the House and thus significantly undercutting their legislative agenda. More broadly, a fight over abortion would potentially reframe the debate this summer from the economic issues on which the administration seems focused—including with respect to the Supreme Court—to social and cultural issues, which is a direction in which they likely do not want to go. Nonetheless, my sense is that the administration has made the judgment that although abortion is a uniquely polarizing issue, by November of this year a Wood nomination would have largely faded into the political background, just as the confirmation of Sonia Sotomayor did a year before. Abortion thus remains an issue, but is not dispositive.

It is equally true that Judge Wood is the nominee whom progressives would prefer to see nominated, by an order of magnitude. While criticism from the left of General Kagan (who as the perceived front runner has received the most attention) and Judge Garland has been limited to a few, very vocal liberal commentators, it nonetheless exists. And the White House is well aware that Judge Wood is regarded by progressive groups as the nominee who has the greatest prospect of serving as a genuine intellectual leader for the left. So to the extent that Wood presents the potential downsides of some fight in the Senate and mobilizing conservatives in the election, she has the upside of appealing to and mobilizing core constituencies of the president; those political factors seem essentially in equipoise.

The upshot is that the administration seems focused on making the choice between these three candidates based not on the political calculus in the Senate (including with respect to its legislative priorities) or in the November elections, but instead based on which nominee best embodies the president’s vision of a Supreme Court Justice and will have both an immediate and lasting impact on the Court, as well as which one sends the best message to the country about the president’s priorities.

Regarding the latter, none of the three leading candidates is truly a perfect fit. The President has made a point of focusing on the Citizens United decision upholding corporations’ rights to participate in election spending, and Democratic Senators have begun articulating a populist critique of the Court’s conservative rulings that they regard as unduly favorable to business. Elena Kagan argued Citizens United for the government, defending the campaign finance statute.

But beyond that, none of the three has a populist record, and none of them has the kind of hard-scrabble back story that buoyed the nomination of Sonia Sotomayor. Probably only Elizabeth Warren—who is not being considered—would beautifully fit the message that Democrats are trying to send to the country about the Court.

The related suggestions that the president appoint a non-judge, which have been growing in prominence, favor Kagan. All three served in significant roles in the Department of Justice. But the general perception that Kagan was otherwise a law professor and dean—jobs that aren’t significantly different from a judgeship—is not correct. She held two significant positions in the White House—deputy counsel and deputy domestic policy advisor—that directly involved her in significant policy- and legislation-related decisions. Previously, she had some exposure on the Hill as an advisor to Senator Biden during the Ginsburg confirmation hearings.

Turning to other factors, nominating a woman is not an imperative, but it certainly is a plus. Youth also has its virtues, in extending the length of the president’s legacy, although it too is not controlling. But of the factors I’ve mentioned so far—experience beyond the judiciary, gender, age, and (most obliquely) Citizens United—Kagan comes out on top. The fact that the difference in age between General Kagan and Judge Wood is a decade probably is material.

Intellectually, all three are regarded as exceptionally smart, and each is plainly up to the job.

As for the substance of the views of the three, I’m sure they differ, but I don’t think it’s possibly to really identify with confidence in what ways. At bottom, as I explained in my profile of Judge Garland yesterday, I do think that there is truth to the conventional wisdom that Garland is more conservative than Kagan, who is in turn more conservative than Wood. But the differences are overblown.

Each of the three has a different background, and each has taken positions that respond to different circumstances. Both Garland and Wood are judges, for example, but they have decided very different kinds of cases when it comes to hot-button issues: Only Garland’s docket includes decisions relating to the war on terrorism, while only Wood’s includes cases involving abortion and religion.

We can infer a little about the three from their professional choices about their respective career paths, which do support the conventional wisdom that they are arrayed left to right: Wood, Kagan, Garland. But the distance between the three seems not to be dramatic. Garland has spent most of his professional life as a public servant, including (like Sonia Sotomayor) time as a prosecutor. He is in that respect a model judge, truly balanced.

Wood and Kagan started as academics; Wood transitioned to a judgeship under President Clinton, and Kagan would have done the same thing had her D.C. Circuit nomination not been blocked in the Senate. Wood has a track record as a result. They are substantially more likely, I think, to have a progressive vision of the law—Wood more so than Kagan. Although Kagan has been more careful than forceful on ideological questions, when her institutional responsibilities called on her to take a position—such as on the Solomon Amendment and discrimination against homosexuals—it is noteworthy that she was decisive.

Although Wood has confronted several abortion-related cases, the contention that she is rabidly pro-choice seems to me simply wrong: She has made clear that she would uphold significant abortion restrictions. I obviously don’t know, but I think it’s quite likely that Garland would have taken the same position on the “partial-birth abortion” statute as Wood—that it was constitutional only if it had an exception for the health of the mother, and that it raised significant vagueness concerns. That was the position that all four justices on the left of the Supreme Court took, along with Sandra Day O’Connor.

The same goes for Elena Kagan. She hasn’t taken a public position on choice. But given the limited positions she has taken on social issues, there is no reason to believe that she would take a different position than the core of the left on the Court.

On the ability of the three to persuade a conservative member of the Court such as Justice Kennedy, all have significant strengths as well. Merrick Garland almost certainly has the greatest level of personal respect among the existing Justices, and as a consequence I believe (as I said yesterday) that he would have the most immediate impact on the Court. But part of that relates to his own centrism, and there is little reason to believe that he would emerge as the intellectual leader of the left. Diane Wood is not only personally charming but has gone toe to toe with Judges Easterbrook and Posner and persuaded them on significant issues. Elena Kagan has significant demonstrated success in working with conservatives at Harvard Law School, which is an exceptionally challenging environment, and has parallels to the relationships at the Court. But she has never been a judge, and would as a consequence presumably take longer than the others to adapt to the new role.

All of the points above explain why the choice between the three front-runners is a difficult one, particularly when the additional factor of politics does not seem likely to play a decisive role. It is obviously unclear who the president will choose, but on the merits, I think it is most likely that he will turn to Elena Kagan.

Questions:1) What do you believe to be the ideal set of qualities for a Supreme Court Justice? Which of the options cited in this article comes closest to your ideal?

2) Why might it be considered useful to select a moderate voice as a Justice? Is the short term political gain worth it?

3) What about the idea of abortion makes it such a ‘wedge issue’? If you do not believe that the stance on abortion is a distillation of one’s political beliefs, what would you choose?

Difficulty Level: Easy/Medium #54

Abstract: In the last twenty years several different sites in the Middle East have been thought to potentially be Noah’s Ark. While most of these have ended up having little investigative merit, a recent discovery is considered slightly more compelling.

Vocabulary: Evangelical, Remnant, Partition, Vicinity, Commence, Apologist, Petrify, Nautical, Anomaly, Ensconced

Evangelists Claim to Discover Noah’s Arkby Joe Kovacs for WorldNet

A new claim is being made for the discovery of Noah's Ark, as evangelical explorers from China and Turkey believe they may have found the remnants of the legendary biblical vessel.

"It's not 100 percent that it is Noah's Ark but we think it is 99.9 percent that this is it," Wing-cheung Yeung, a Hong Kong documentary filmmaker and member of the 15-strong team from Noah's Ark Ministries International told Agence France-Presse.

The team says it recovered wooden specimens from a structure on Mount Ararat in eastern Turkey at an altitude of 13,000 feet, and that carbon dating suggested it was 4,800 years old.

Several compartments, some with wooden beams, are said to be inside, and could have been used to house animals, the group indicated.

Another NAMI explorer, Man-fai Yuen, said at the Hong Kong news conference: "The search team and I personally entered a wooden structure high on the mountain. The structure is partitioned into different spaces. We believe that the wooden structure we entered is the same structure recorded in historical accounts and the same ancient boat indicated by the locals."

The group of archaeologists ruled out an established human settlement, explaining one had never been found above 11,500 feet in the vicinity.

Ahmet Ertugrul, leader of the search team, was first to get information on the location before commencing the hunt.

"I got to know the secret location in June 2008," he said. "The source told me that this is Noah's Ark. I took a team there for the search around the region and found a wooden structure. I took some photographs of the interior structure. Since I have worked closely with NAMI for some years, I informed them of the discovery."

The team also said local officials would ask the national government in Ankara to apply for United Nations World Heritage status so the site can be protected during an archaeological dig.

As WND has reported, after centuries of scouring the Earth for Noah's Ark, numerous claims have been flooding in over the past few years regarding possible discoveries of the Old

Testament ship.

In June 2006, a 14-man crew that included evangelical apologist Josh McDowell said it returned from a trek to a mountain in Iran with possible evidence of the ark's remains.

The group, led by explorer Bob Cornuke, found an unusual object perched on a slope 13,120 feet above sea level.

They said some of the wood-like rocks they tested proved to be petrified wood.

Meanwhile, another ark-hunter is the late Edward Crawford, a former draftsman illustrator for the U.S. military who taught Christian theology at Evergreen Bible Presbyterian Church in the Seattle suburb of Pullayup, Wash.

Crawford made numerous climbs up Ararat, and said in 1990, he discovered a large, rectangular structure buried in the ice at an elevation of 14,765 feet.

"I don't have any doubt about it at all, and the Turks don't either," he told WND.

He said the structure sits under snow and ice, which he called "ridiculously hard stuff."

"Those don't happen in nature," he said. "If you think someone went up there to build that, it would take a greater miracle than the Flood [of Noah] itself."

Not far from Crawford's "structure" on Mount Ararat is something which made headlines in March 2006 with the release of a new, high-resolution digital image of what has become known as the "Ararat Anomaly."

The location of the anomaly on the mountain's northwest corner has been under investigation from afar by ark hunters for years, but it has remained unexplored, with the government of Turkey not granting any scientific expedition permission to explore on site.

"I've got new found optimism ... as far as my continuing push to have the intelligence community declassify some of the more definitive-type imagery," Porcher Taylor, an associate professor in paralegal studies at the University of Richmond, said at the time.

For more than three decades, Taylor has been a national security analyst, and has also served as a senior associate for five years at the Center for Strategic and International Studies in Washington, D.C.

"I had no preconceived notions or agendas when I began this in 1993 as to what I was looking for," he said. "I maintain that if it is the remains of something manmade and potentially nautical, then it's potentially something of biblical proportions."

The anomaly remains ensconced in glacial ice at an altitude of 15,300 feet, and Taylor says the photos suggest its length-to-width ratio is close to 6:1, as indicated in the Book of Genesis.

Questions:1) The archaeologists involved in this discovery claim that any nautical discovery in a mountain is necessarily ‘biblical’. What sort of logical fallacy does this line of reasoning demonstrate?

2) What is petrified wood? Why is its discovery in this context significant?

3) What sort of investigative lead did these explorers use to find the site? What sort of issues might this lead have?

Difficulty Level: Medium #55

Abstract: Baboons - a high order primate and one of our closest evolutionary cousins - are coming into conflict with urban humans in parts of South Africa. This article addresses the consequences of this contact.

Vocabulary: Baboon, Escalate, Wake, Advocacy, Primates, Proactive, Habituated, Rehabilitation, Induce, Opporutnistic

South Africans battle Baboons in City Streetsfor CNN.com

Cape Town, South Africa (CNN) -- As natural habitats disappear in South Africa, baboons and humans are increasingly coming into close contact, and conflict.

In South Africa's Cape Peninsula there has been a large-scale transformation of wild baboons' natural habitat into land for housing, industry and agriculture, according to the University of Cape Town Baboon Research Unit.

The result is that wild baboons are surrounded by humans, which the researchers say is causing human-baboon conflict to escalate.

But the problem isn't confined only to the Cape, as baboons are increasingly venturing into towns and villages across southern Africa in search of food, often leaving a trail of damage in their wake.

In the farming village of Barrydale, a four-hour drive from Cape Town, baboons are a growing problem. While some local farmers say they want to shoot baboons found in the village, others favor a more sustainable solution.

Jenny Trethowan, of advocacy group Baboon Matters, is known as the "Baboon Lady" back in Cape Town. She has spent her career trying to protect the primates in the Cape Peninsula, of which there are more than 400.

In Barrydale, she sees an opportunity to tackle the problem before it gets out of hand.

"What is so exciting about the Barrydale scenario is the fact that they are being extremely proactive," Trethowan told CNN.

"In many of the other areas it's been a long time, where baboons have become habituated and trained. Now in Barrydale they are saying 'let's stop this behavior quickly before it gets started,' and that's enormously exciting for me."

Trethowan has pinned her hopes on implementing a baboon-monitoring program in the village. At the Joshua Baboon Rehabilitation Project, just outside Barrydale, Baboon Matters is training locals to be baboon monitors.

The monitors are tasked with patrolling Barrydale and herding baboons away from homes and farms.

"If we can get the monitoring program going quickly before the baboons are habituated I believe we stand a good chance of success here," said Trethowan.

Nola Frazier runs the Joshua Baboon Rehabilitation Project and supports the village's monitoring program. "I don't think the baboon problem is going to go away," Frazier told CNN. "It's a learning curve. It's something that's happening here; it's happening all over South Africa."

An existing monitoring program on the Cape is yielding benefits. Statistics from the Baboon Research Unit show human-induced injuries to baboons are at their lowest for five years. Deaths are also down, and the baboon population is up, which means encounters with humans are more likely.

When she's not helping to run monitoring programs, Trethowan takes tourists on walks around the Cape Peninsula to see baboons in what she hopes will be their natural habitat.

But despite the monitors' best efforts, the baboons sometimes stray from their natural environment. The smell of cooking, and windows left open, are practically an invitation to hungry baboons, whose food raids can result in damage to property.

"When I take people to walk, I never describe baboons as something they are not," said Trethowan. "They do cause incredible damage, and the ideal thing would be for them to be on the mountain and not in the village.

"The monitors can struggle without a doubt. What's frustrating to me is to see the residents make little effort to help the monitors. If they were working with the monitors more, the monitors would be more efficient."

When it comes to taking on one of the continent's most opportunistic animals, researchers and advocates say there are no easy answers.

"Baboons are definitely incredibly opportunistic and incredibly adaptable, so from a management point of view it makes it incredibly difficult," said Trethowan. But she said it's these same characteristics that drew her into a life of advocacy for baboons.

"It is hugely amazing to watch how these baboons will adapt to a situation and will seize an opportunity and work with whatever they've got," she told CNN.

"I think we've got a lot to learn from them, in hopes of showing more people the positives in an animal so often labeled a problem."

Questions:1) Although the principals are obvious much different, this same dynamic plays out in our lives. What wild animals share an environment with you? How is it that these relationships benefit the animals? How do they benefit humans?

2) What positive steps are the people of Barrydale taking to deal with this problem? Why is this particular course of action more effective than others?

3) Why might it be important to maintain biodiversity - Give some combination of three potential benefits of diversity and three problems with a homogenous (not diverse) world?

Difficulty Level: Hard #56

Abstract: One of the greatest triumphs of the internet is how it allows isolated and voiceless people to communicate with a larger world. A peripheral result of this phenomenon is that the experience of dying has taken on some of the characteristics of a public event.

Vocabulary: Frail, Rumpled, Terminal, Destigmatize, Brutality, Dwindling, Harrowing, Impending

Death at 25: Blogging the end of a lifeBy Madison Park, CNN

The former beauty queen stared into the camera, but this was no pageant or performance. She looked frail and thin, and her hair was rumpled. But Eva Markvoort smiled weakly.

"Hello to the world at large," she said in the video. "To my blog, to my friends, to everyone. I have some news today. It's kinda tough to hear, but I can say it with a smile." Propped in a hospital bed, Markvoort sat surrounded by her family. "My life is ending."

Markvoort had cystic fibrosis, an incurable disease that causes mucus to accumulate in the lungs. For nearly four years, she narrated an unvarnished blog about life with a terminal disease. Even when it appeared unlikely that she would receive a second double lung transplant, the 25-year-old continued to chronicle life on her blog.

The public sharing of one's last thoughts is a way to acknowledge that the end is near, but it also destigmatizes death for others, said medical experts who work with terminally ill patients.

In the Internet age, many people reflect on their lives through video, personal blogs and larger websites such as CaringBridge.org, where people who have major health events connect and share online.

"What we're seeing over the last decade, we are gradually moving from a culture that had become during the 20th century, very closed about death," said Dr. Chris Feudtner, research director of Palliative Care Services at the Children's Hospital of Philadelphia in Pennsylvania.

A cultural shift has occurred, he said, referring to columnists and Randy Pausch, a computer science professor at Carnegie Mellon University, who discussed their impending deaths with frankness. Pausch's last lecture, urging students to fearlessly pursue their dreams, went viral on YouTube in 2007, getting more than 11 million views.

Their line of thinking may be, "I'm still alive. I don't want to be closed. I want connection. I want to be able to share what I'm learning on this journey," Feudtner said.

Bloggers like Miles Levin, an 18-year-old who had a rare soft-tissue cancer and died in 2007, and Michelle Lynn Mayer, a 39-year-old mother who had scleroderma and died in 2008, shared their thoughts on living and dying, too.

"We all tend to be open via video, blog or Facebook about what we do every day. It's hardly surprising that openness extends to people's last days or weeks," said Dr. David Cassarett, author of the book "Last Acts," about end-of-life decisions.

These bloggers, Cassarett said, are helping the rest of us through largely uncharted territory. He used a sports analogy to explain.

"Hardcore bicycle riders ride in packs, and there's a tradition," he said. "The one in the front points out hazards in the road to those who come behind. It's both an opportunity to be helpful, if you're in front. You spot sewer grates, so others can avoid accidents."

Blogs like Markvoort's could be acting similarly, he said. They don't shy away from the ugliness and brutality of the dying process.

"They're not just about hope but also about despair. That is, they're telling us not just what we want to hear but also what we need to hear," Cassarett wrote.

Markvoort started her blog in 2006 because hospitalized patients with cystic fibrosis were isolated because of infection. Alone in her hospital room at Vancouver General Hospital after visiting hours, she sought to connect with other patients by finding them online.

The blog's name 65_RedRoses, originated from her childhood inability to pronounce cystic fibrosis; she, as have many other children with the disease, called it "65 roses." Markvoort added the word red because it was her favorite color.

Markvoort was the subject of a Canadian documentary also called "65_RedRoses." It showed her harrowing experiences with the disease: violent coughing, vomiting, IVs, the painful procedures that made her scream.

The documentary followed her as she waited for a double lung transplant and as she formed online friendships with two American girls who have cystic fibrosis. The film ends on a happy note: Markvoort got her lung transplant and appeared to be on the road to recovery.

But less than two years later, her body began rejecting the organs. Her lung capacity dwindled, and every breath became laborious.

Sometimes, her blog posts were raw, filled with "episodes of projectile vomiting, hours of gasping for breath, waves of nausea lulling out into hours of sleepiness."

"I'm drowning in the medications," she wrote. "I can't breathe."

Initially, Markvoort's mother, Janet Brine, said, her daughter's openness made her feel uncomfortable.

"We connect differently than your generation. I'm part of the digital world," Brine recalled her

daughter telling her.

The constant theme in Markvoort's blog is love.

In a video entry where she talks about her impending death, Markvoort said: "I think I'm very lucky, because I've loved more than you could possibly think, could possibly imagine. So I'm celebrating that: celebrating my life."

Markvoort grew up in a suburb of Vancouver, Canada. Girly to the core, she dyed her hair red and loved outrageous fashion like pink boas, polka dot dresses and striped knee socks. She was crowned a beauty queen (of New Westminster, a suburb of Vancouver) and attended University of Victoria, hoping to become an actress.But she couldn't pursue that career because of her unpredictable health.

"But she has found other ways to have that artistic outlet, and writing the blog is one of them," her mother said.

She championed cystic fibrosis awareness and organ donations. From Los Angeles to Poland, letters, stuffed animals and cards poured into her hospital room.

"I felt so selfish when I stumbled across your [LiveJournal] on here, because I've been smoking cigarettes for years, taking my lungs for granted. You helped me quit the worst habit I've ever had," one wrote.

When Markvoort was too frail, she dictated blog posts to her friends and family.

"She had already processed the concept of dying," her mother said. "And for her, she came to terms with it quite quickly. For her it was like, 'Oh, my gosh, I don't know how much time I have. I have things to say.' There was a sense of urgency on her part."

Sometimes, her posts have no words, just pictures of her and her loved ones, with their eyes crossed, tongues sticking out and comical gestures.

"This is the end of my life, but it's not the end of my love," Markvoort said in a video entry.

She died the morning of March 27.

In the same style that she had allowed her readers (who were often strangers) into her life, Markvoort's family plans to hold a memorial service that will run in a live stream on her blog at 1 p.m. ET Friday.

"She indicated that she thought it would be a cool idea if whatever we did, was made available for her online blogging community," her mother said.

Questions:1) Do you believe that openness to the process of dieing is positive (by speeding up the grieving and coping processes), or negative (causes crippling depression)? What specific reasons might you have for this point of view?

2) One internet trend that has paralleled these ‘death blogs’ is the growth of ‘online gravestones’. What are these online grave sites? Do you think these are positive or negative?

3) Do you believe the insights of those near death to be in any way more worthy than the insights of the healthy and living? What about the experience of dieing influences your opinion?