Global warming, Al Gore and 98 degrees in Lincoln

Spending years defending farmers from environmental nuts, I know just enough about these true believers that the current mania with global warning has a decided bias built into it. I don’t know what the hell is really going on with our earth, but when the temperature hit 98 degrees yesterday (May 7, 2014) in Lincoln, Nebraska smashing all the records,* I thought of Al Gore.

Photo credit:

Photo credit:

The sweltering heat in May made me puke ’cause it prompted me to worry that Al might be just a little bit right. Hot air and Al Gore do, however, go together. So, maybe I should relax.


* This record topped the previous high of 96 in 1934.

11 responses

  1. The federal judiciary killed the planet. I’ll make the case in greater detail when I have the time.

  2. Judge, are you aware that global warming has made it to the federal courts? Michael Mann, Penn State professor of the “Hockey Stick Chart” fame (Google “Hide the Decline” for an interesting & irreverent video on it) has sued the National Review for defamation. Right now they are fighting over anti-SLAPP and interlocutory appeals at the District of Columbia Court of Appeals.

    But if they ever get past those issues, it ought to be interesting.

  3. Mother Nature doesn’t care what you, I, Judge Kopf, Al Gore, or anyone thinks. It’s physics.

  4. Judge, thought you might be interested in this NYT article about why Americans are less concerned about climate change than those in other countries. Of course, it’s in the NYT so i don’t expect you to be totally convinced, but i can report that the locals up in coastal maine — lobstermen et al., are totally convinced based on their experience with the seas, so it’s not just the “liberal elite” that are convinced…:)) A hot day here and there don’t convince me either, but tornados in Maine are weird, and the lobster seem to be affected by rising water temperatures. now there is something for the liberal elite to really worry about. 🙂
    Yours, Priscilla

  5. cillasmith,

    Several things:

    1. Man is changing the climate. The science is clear. I am not a climate change denier. My rather annoying academic for a son, Dr Keller Kopf, a fisheries biologist, ecologist, and post doctoral fellow at the Institute for Land, Water and Society at Charles Sturt University in Australia, would never let me get away with such silliness.

    2. My dispute has to do with turning a scientific question into a moral one. I also quibble a little with the degree of man-induced change because I know just a enough from talking to climatic modeling experts years ago (when I was involved on the Platte River) to understand that predicting change is one thing, but predicting the degree of change is a total crap shoot. I also quibble a bit with the reluctance to explore more fully the benefit side of the cost/benefit equation when it comes to increased food production as a result of longer growing seasons. See here and here. (It’s probably just me, but more grain for starving kids does not strike me as an awful thing.)

    3. When I was 15, I spent a summer cooking Maine lobsters live out of the tank in Casco, Maine. From that experience I came away loving Maine lobster, and loathing French Canadians (not really). I don’t want to live in a world without Maine lobster. If I can’t order Maine lobster, just shoot (or global warm me to death).

    4. I like the liberal elite except when I don’t.

    All the best.


  6. ExCop-Law Student,

    Yes, I am aware that global warming has and will continue to reach the courts. At least in our federal trial courts, I have total confidence that federal district judges will look to science, and not normative views (theirs or anyone else’s), to honestly resolve the disputes that emanate therefrom. Witness what the three district judges did in New York, Nebraska (me) and California on the partial-birth abortion issue. That said, I have much less confidence in the Supreme Court do resolve those issues straight up.

    All the best.


  7. As a disciple of Thomas Malthus, I was persuaded at a young age that humanity had about three or four good generations left in it, the only open question was the cause of its demise. Likewise, I have maintained that the American empire would collapse, as all empires do; the probable cause would be the development of an oligarchy, precipitated by an unhealthy concentration of wealth. This week, Fed chair Janet Yellen testified wrt the latter,, and this year, and early this year, a NASA-funded study,, appeared to confirm the former.

    Global warming has been “on my radar” since the 1970s, when we were studying the climate of Venus. The truly Dantean climate of Venus is thought to be the result of a runaway greenhouse effect, where feedback loops create a de facto oven. At times in our planetary history, the mean temperature was “warm enough to bake bread” (Neil DeGrasse Tyson, COSMOS), so it very well could happen here. Again.

    Fifteen years ago, we might have been able to do something about global warming, but I think we have crossed the Rubicon. The crucial concept is not CO2 concentration, so much as it is what is called “albedo”: the reflectivity of the planet. Water, soil, and forest absorb about 90% of sunlight falling on it and blacktop, even more; snow, on the other hand, reflects about 60-70% of sunlight hitting it.

    CO2 is a weak greenhouse gas, and has had some effect. (Where the real damage occurs is in the oceans, where acidity has already had a deleterious effect on the food chain, and where the water is too warm for marine life to live comfortably.) But the actual culprit is human activity more generally (see the concept of the urban heat island), resulting in a loss of snow cover. The Earth is absorbing more sunlight and inexorably, it is warming. Climatological effects are more dramatic at the poles and more dangerously, the melting of permafrost is releasing long-stored caches of methane, which is a far more noxious greenhouse gas. The feedback loops have started, and if there is any way to turn them off, I am not aware of it.

    So, why can I blame the federal judiciary for this? We start, as we ultimately must, with the simple equation: power – accountability = tyranny Most of those who gravitate toward the bench are frustrated hall-monitors, who crave power over others. Invested with a (usurped) power that would try the character of a saint, our black-robed overlords have found the temptation to appoint themselves as our Platonic Guardians irresistible[1] … and that naturally brings us to the judicial canker sore that is Bush v. Gore.

    For Republican partisans, “states’ rights” is not so much an inviolable constitutional principle as it is a deus ex machina for the attainment of their social aims. When it comes to progressive policies like raising the minimum wage, they scream bloody murder … but when it comes to same-sex marriage (DOMA) or abortion, dey luvs demselves that big gub’mint. Scalia, Thomas, and the Gang of Five jettisoned quite literally a century of accumulated pro-states’ rights jurisprudence to anoint George W. Bush as pResident over Al Gore, and three were known to have had personal conflicts of interests that tainted their objectivity: Herr Rehnquist and Sandy Dee wanted to retire, Nino’s kid had a job lined up in the new Bush administration, and Long Dong Silver’s wife had a job picking candidates for that administration. But judges keep their own counsel as to whether these obvious conflicts of interest are actual conflicts … and other judges refuse to criticize their colleagues on grounds of comity.

    And of course, they jettisoned the “intent of the voter” standard which had been ubiquitous for a century, under a reading of the Equal Protection Clause bordering on the comical. (And for the record, I am a registered Republican, who has served as a state convention delegate on several occasions.) And under that time-honored, state-developed standard, would Gore have won the election? Probably.

    Gore understood the problem, and the need to act with haste. Republican potentates, owned by oil and coal interests, continue to deny it as a matter of doctrine. That illegitimate judicial fiat may well have made the difference between the survival and demise of humanity.

    So why do I blame the federal judiciary in general? Because they have created and internalized the ethos that the law is whatever they say it is on that day, as opposed to what the Framers did. Anastasoff really was that important.

    If ‘the Boss’ is interested, I will also demonstrate that Gary Hart’s inability to keep his thing in his pants is the proximate cause of America’s impending demise.


    [1] While quotations to this effect are legion, this summarizes the modern judicial ethos nicely:

    With disarming candor Justice John Marshal Harlan (grandfather of the present Justice Harlan) told a class of law students: “I want to say to you young gentlemen that if we don’t like an act of Congress, we don’t have much trouble to find grounds for declaring it unconstitutional.”

    Alphaeus Thomas Mason, The Supreme Court from Taft to Warren vii (La. St. U. Press, 2d ed. 1968) (emphasis added). Still, the most incisive abstract analysis of this situation comes from the agile mind of a then-obscure Oxford graduate student, who observed that the Supreme Court’s poor record of judicial craftsmanship

    is at least partially attributable to the enormous power that Justices possess and the attendant temptations that they face. U.S. Supreme Court Justices live in the knowledge that they have the authority either to command or to block great social, political, and economic change. At times, the temptation to wield this power becomes irresistible. The Justices, at such times, will attempt to steer the law in order to achieve certain ends and advance certain values. In following this path, the Justices are likely to forget that they are judges and that their Court is a court. Their concentration on end results leads them to neglect legal means: It leads them to neglect the importance of basing all rulings on conventional sources of law.

    Elena Kagan, The Development and Erosion of the American Exclusionary Rule: A Study in Judicial Method (unpublished Master’s thesis; Apr. 20, 1983).

  8. Ken,

    You piss me off a lot. You also stimulate my thinking.

    I once knew but forgot about Justice Kagan’s Master’s thesis. Thanks for reminding me of it.

    All the best.


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