It's not elitism to oppose them

And Also: A bit of music. She sure "can really wail on that cello."

Glenn Greenwald are among those who are concerned about how Christine O'Donnell and other Tea Party candidates are being treated. They feel there is some uncomfortable elitism and patronizing going on. This really helps them since being "victims" (while scorning others who claim to be) is a core thing they do. [Palin, now O'Donnell, has the "us v. them" shtick down. BTW, the woman QUIT HER JOB ... why doesn't that disgust more people?] The movement, misguided as it is in various respects, expresses some real concerns and grievances. We might add that they are akin (since they are really but a representation of it, pretending something truly novel is here aside) to "family values voters" or the "moral majority" and so forth on that front.

Sure. There are some real grievances and concerns. But, the cynicism and disdain is earned as well. Take this new video from the "Citizens United" (remember them?) crowd. As I noted in comments, the preview is filled with platitudes that could easily be said by left leaning women. Also, let's not forget some of the women glorified here did things like block the ERA -- women power indeed. Bottom line, they are promoting bad things. This much like why naturally conservative black people are so loathe to support the Republican Party. True populism mixes the conservative with the socialist, government guaranteed health care with various hands off government sentiments. This is faux populism.

I will say it again, even if I said it a lot in the comments of GG's posting -- O'Donnell is targeted for a reason. It isn't just elitism, or really that much at all. What after all has she spent her public life doing, other than running for office? [Greenwald cited Alan Grayson as a newcomer to the Congress too; a moronic comment given the guy has an impressive resume, down to serving as a law clerk.] She was a promoter of socially conservative values. And, not just as a matter of faith. She also wanted to affect public policy. To cite an example:

Christine O'Donnell opposes gay marriage and extramarital sex. She gay-baited primary opponent Mike Castle. She has issued statements opposing that which "legitimizes a homosexual lifestyle." She worked with people who "cure" gays. She once said a gay ambassador appointee had "ties to the pedophile-rights movement." (Lest there be any doubt: It was a complete fabrication.)

More here. Oh, by the way, she has a lesbian sister. Cheney has a lesbian daughter but actually publicly opposed anti-homosexual legislation, if going along for the ride when in a support position (that is, as a vice president, who doesn't make final calls on policy). O'Donnell opposed public policies promoting condom distribution because it would help the spread of AIDS. She is not atypical in this regard. Rachel Maddow has reported about how extreme many Tea Party candidates are in respect to abortion rights, even as compared to Republicans normally (recall how the Republican nominee for U.S. Senate in NH was a "moderate" conservative for supporting exceptions in the case of rape and incest). See also, here.

Again, I refer you to the book on the SSM fight ("gay marriage" being misleading, since again, you need not be gay to have one) where various conservative* leaning folks supported civil unions. It is quite possible to do so and/or have "values" (some voices at the value voter meet-up going on now, notwithstanding**) while not being a Democrat too. It is almost amusing reading some people (see Glenn Greenwald yesterday -- another piece that didn't quite work for me given this very point ... and why don't he respond to kneejerk comments from this crowd?) who think Obama has done nothing "progressive," while people are voting for people who think he and his ilk are a bunch of "socialists."

I would be able to respect, but still oppose on policy grounds, some people who vote for Republicans who are not so hateful and supportive of restricting our rights (while crying about "liberty" ... the individual mandate fight is particularly ridiculous here, given how few actually are "forced" alone). They can be against same sex "marriage" (wrongly, but so be it) but still understand the importance of some sort of civil union benefits:

The couple had always avoided doing any legal planning, but this summer, after an operation to remove part of Ms. Glazer’s kidney, they realized they had to. They wanted to protect themselves and their joint property, and they wanted to give Ms. Bacolas the right to make medical decisions on Ms. Glazer’s behalf. Registering with the city as domestic partners was the obvious solution, but it sounded as impersonal as a trip to the D.M.V.

They can be wary about federal power, but be consistent about it. For instance, if a state allows same sex marriage (fill it in for Canada) in a case like this, federal benefits should apply:

Lee Kandu never wanted to be a crusader for same-sex marriage. The Castle Rock, Wash., woman just wanted to file for bankruptcy protection so she could keep her house after her spouse - a woman she married in Canada - was diagnosed with terminal cancer.

But her case thrust her into the national debate when a federal judge in Tacoma ruled that Lee and Ann Kandu, a lesbian couple, can not file jointly for bankruptcy protection as a married couple. Federal law, the judge ruled, defines marriage as a "legal union between one man and one woman."

Catholics are a particular group who know the importance of respect for individual freedom as well even as they respect the importance of faith. After all, their views on divorce aren't quite generally accepted, though of course, many in this country are actually "cafeteria Catholics" anyways. This should be understood as O'Donnell and others put themselves out as victims, criticizing their desire to force their personal religious views on the rest of us the ultimate reason why we care about their views on masturbation or the like. I don't doubt that she is a "nice" person in certain respects, but someone who supports very mean policies.

It all seems like the stereotypical dumb blond who couldn't walk and chew gum at the same time. But, many people can; they have nuanced positions, some which I don't agree with, while not being tools. I know some of these people personally. I don't see enough of them in many of the candidates out there. Their flaws might explain why they are so camera shy, so unwilling to actually be honest and upfront outside of their comfort zone (as implied above, I don't think they are fully honest overall). And, I fear November partially for that reason.

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* Sometimes, I have to deal with people who debate over labels such as "conservative" or "liberal" (or "left" or whatever). Some will define "conservative" in a certain way. So, if a person supports same sex marriage, let's say Ted Olsen, they can't be "conservative." "Conservative" is more like the people covered by John Dean's book, in effect "conservatives without a conscience." But, this isn't really how many people define the term. To not call George Bush's solicitor general "conservative" is a bit ridiculous.

** Keith Olbermann played something said by Huckabee comparing the requirement to provide health insurance to those with a pre-existing condition to getting fire insurance for a burned down house. Oh, it pissed me off. I thought it was sick. A person all for Christian values, even supporting some government spending for that purpose (the horror), compared a person needing health care to someone's house or car.

A rather selective reading of Jesus, I would say.

Math Doesn't Suck

Smart girls are sexy; just look at and ask Danica McKellar, the crush of boys of yore via Wonder Years, who now has a sideline of all things math writing, geared to middle school girls. Some think the books are too "valley girl," but they look pretty good to me. Good luck!

I'm with you Jon Stewart -- Tone It Down!

In the book on SSM in Vermont, the author noted various Republicans and people other than the usual suspects supported civil unions. They opposed strident bigotry and unfairness. For sanity. These people need to say "no" to the likes of Christine O'Donnell.

Give or take 100K or so?

A Reuters article on the "apparent spoof of the recent Tea Party rally" planned by Stewart/Colbert (don't jump to conclusions now!) puts forth a rather high estimate of the original numbers.

Constitution Day

On the day of signing, a bit of reading.

Um not quite

This is somewhat disappointing. The comic is b.s. -- a "militant" atheist would be violent too. Also, if you call the other side "deluded" in title of your books, you are "aggressive." Sorry, Jen.

Quick Thoughts

A big believer in character actors, this guest op-ed was appreciated. As to this, (sorta) wrong -- it's a good idea, since it promotes principle over bare political expediency. Aim for the fences though yes it does have an extremist flavor. But, so does the movement itself.

Sports Quickie

It's done, so he wasn't evil or anything, but Jeter faking being hit last night (which could have but did not change the outcome) was still cheating. The Jets should have won; it took extra bit of lousy not to. They lost 10-9, including a penalty extending the one TD run.

Preposterous propositions

And Also: I agree with the image of "whack a mole," which is a useful metaphor overall, even outside our current foreign policy.

But the larger question is whether the country is ready to deliver a majority to a Republican Party that now holds problem-solvers like Castle in contempt, is scared to death of a well-financed right wing that parades under a false populist banner, and, in primary after primary, has aligned itself with Sarah Palin, who anointed O’Donnell one of her Grizzlies.

Will moderate voters take a chance on the preposterous proposition that this Republican Party will turn around and work in a calm, bipartisan way with President Obama? Or will they use their ballots to wake up the Republicans and tell them that they need more Mike Castles, and fewer extremists?

-- E.J. Dionne Jr.

A tiny pool of Republican primary voters helped but even if it was fifty thousand (see Biden interview) or some such number, some sanity can be hoped for. But, "preposterous" is a good word to apply to the perverted mind-set that allows what is happening in government these days.

Glenn Greenwald (citing Karl Rove? low hanging fruit!) sees some sign of class discrimination, but as I noted in the comments, don't quite see it. There are some real reasons to oppose her and other tea party candidates. Sharon Angle et. al. are worse than many Republican regulars (who I don't want either), including those kicked out for the crime of working with Democrats. He really goes after some candidates, crying hypocrisy that isn't quite there, suggesting the Senate is just a bunch of tools. I'm sorry, there are quite a few credible people there, and not just his token maverick, Russ Feingold.

It is helped by a certain degree of intellectual laziness displayed by calm cites of this as "interesting" as if we are supposed to take it seriously (see comments, including mine). Just going for the non-elites, who as Rachel Maddow et. al. show are not as elite-free as that last link implies, for the sake of that or in anger leaves a lot to be desired. There are outsiders (Al Franken, for instance, and various others not as well known) out there that can be used to fight the system. It is lazy and reckless to push for change by picking many of the people out there now.

Up to a point, yes, it's understandable and how things should work. But, it remains preposterous to expect reform with this bunch of insurgents. It is as or more likely that more of a bottleneck will occur and Obama will be assisted since government will seem more divided, the opposition more unhinged/a threat. Hopefully, nature ebb and flow will lead to somewhat better economic results, though I doubt support of less taxes for the rich and overturning flawed health insurance reform and the like will aid that. The enemy of your enemy is not always your friend.

I wonder how the Lib-Dem/Tory coalition is going across the pond.

Quick Thoughts

A little reported, but notable (and rare) event, is occurring this week -- the trial stage of the impeachment of a federal judge, who has an Olbermann repeat guest star on his side. Meanwhile, Lady Gaga guest Katherine Miller is pretty cute (and brave). More here.

Civil Wars: A Battle For Gay Marriage (Vermont)

That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community, and not for the particular emolument or advantage of any single person, family, or set of persons, who are a part only of that community; and that the community hath an indubitable, unalienable, and indefeasible right, to reform or alter government, in such manner as shall be, by that community, judged most conducive to the public weal.

- Art. VII, Vermont Constitution

Though the Hawaii Supreme Court put the state to the test, the Vermont Supreme Court was the first state court to make a final judgment in support of the rights of same sex couples challenging state marriage laws. As discussed in Civil Wars: A Battle for Gay Marriage* by David Moats, the lawsuit was carefully tied to state practice. A federal claim, especially in the age of Bowers v. Hardwick (the state ruling was handed down in 1999), would be trouble. But, state practice was different, including given anti-hate crime legislation and recent judicial and legislative support for same sex adoption rights. As the state supreme court ultimately noted, the last one belied the need of limiting marriage to different sex couples.

Vermont also has a libertarian side, if one with something of a conservative flavor, present as far back as its origins -- it was the first place slavery was abolished and the state had universal male suffrage way back in the 18th Century. The ability of liberal Republicanism (shown by Sen. Jeffords) to continue to thrive benefited the cause of same sex marriage, down to the former Republican attorney general who wrote the majority opinion in Baker v. Vermont, a Republican more in the shade of David Souter (NH) than many we have seen of late. The fact it is not simply liberal is suggested by a remark Sen. Leahy made during the Kagan hearings about how the state's gun laws amount to a few regulations to give animals something of a fighting chance.

And, this was seen in its jurisprudence as well. A few years before the marriage ruling, the Vermont Supreme Court provided a liberal reading of an adoption statute, making it one of the first states to expressly allow same sex (second parent) adoption. It was one of the states that held for equalized funding of school districts. And, the "common benefits" provision was applied generally, even to economic legislation. In fact, two judges were wary that the ruling here opened up more careful review of such legislation, the concurrence particularly desiring to provide some limiting principle via application heightened scrutiny of suspect classes, including by sexual orientation.

[The majority denied that it was not given special concern to the interests in question, but its balancing did appear to have a potentially broad reach, depending on how it was applied. This is comparable to Casey and Lawrence, which had some open-ended language that their authors might not intend to be taken as far as some wish.]

The focus on common benefits was a strategic move not without cost. It helped the majority (unanimous as to requiring some relief) to focus not on marriage but the benefits of marriage:

The issue before the Court, moreover, does not turn on the religious or moral debate over intimate same-sex relationships, but rather on the statutory and constitutional basis for the exclusion of same-sex couples from the secular benefits and protections offered married couples.

This is what makes the Prop 8 case somewhat different -- California provides nearly all the same benefits to those with "domestic partnerships," the issue largely focusing on the term "marriage." So, when the court here gave the state the option to do something similar (though "civil union" was chosen, since the other term felt cheap to many gays and lesbians, like "domestic help") it was clearly a large state. I myself thought it would not be horrible if a similar path was allowed by the Massachusetts Supreme Court, which also gave the state some time to properly respond to its same sex marriage ruling.

But, it rejected such a path the next year, and I'm not sure if its privacy / substantive due process approach matters on the point. The "stigma of exclusion" would deny common benefits as well. "Civil unions" are not "marriages" so Vermont citizens who wished to move to another jurisdiction that left open same sex "marriages" would not have the same benefits. Social understanding is a type of benefit too. Could the state give only some the label "not guilty" and say that it's fine since the state itself did not deny benefits to those without it? I'm not sure how the state handled civil contracts that favored "married" couples but that too would be an issue.

Overall, studies (and common sense) showed the two are not just different and equal, as Gov. Dean argued. This is one reason the state eventually passed a same sex marriage law. But, obviously, it still was a major advancement, as the leading lawyers (disappointed with the ruling all the same) had to admit. The logic of letting the legislature find its own way to provide relief -- see again the Massachusetts Supreme Court -- also is apparent. It is harder to totally defend the result as truly equal as again noted by that court as well. But, such is the nature of the judicial process -- perfection is not usually in the cards.

The book provides a page turning account of the battle for same sex marriage in Vermont, ending its story in mid-2003, before the Massachusetts ruling was handed down but after Lawrence v. Texas. It is written by the editorial page editor of a Vermont paper that was on the side of marriage equality, including civil unions. We do hear about those from the other side, including the "eloquent" testimony of a bishop. This last bit rubbed me the wrong way somewhat since the "eloquence" was in promotion of bigotry. No mention about the bishop speaking for a Catholic legislator who voted for the bill and then could not go to her usual church without negative backlash.

The book provides some personal stories of people involved, including an older small town Republican farmer/legislator who was among the members of his party supporting civil unions and paying for it at election time. I would have liked a bit more about the opponents though, a bit more fleshing out of them and their backgrounds. Again, they were not totally ignored, and they were dealt with respectfully, but the story was focused on the other side. Since the vote was fairly close (less so for marriage, where there were votes to override a veto), this is somewhat unfortunate. Still, overall, I agree with the positive reviews.

It is also a telling look at a certain period of time, one that might seem out of date even only a decade later. An interesting contrast as well with California, which went a somewhat different way, in part because of the ease of popular referendum. Other stories might be ready to be told. What about Iowa, whose supreme court also unanimously protected the rights of same sex couples? Its experience is sure to be somewhat different, it coming a few years later itself relevant.

---

* The partial dissent, which argued for an immediate remedy, noted that the law was sex discrimination, even if it mostly impacted gay and lesbians:

Thus, an individual's right to marry a person of the same sex is prohibited solely on the basis of sex, not on the basis of sexual orientation. Indeed, sexual orientation does not appear as a qualification for marriage under the marriage statutes. The State makes no inquiry into the sexual practices or identities of a couple seeking a license.

The basic point also was not the intent of the original law, but the current practice that continued same sex stereotyping. The dissent admitted that the original drafters of the law probably weren't thinking about gays and lesbians or the possibility of men marrying men etc. But, current practice was still discriminatory, sexual discrimination in marriage over time relevant as well.

The majority noted that unlike Loving v. Virgina, a glaring discriminatory purpose was not in place. ["Plaintiffs have not demonstrated that the exclusion of same-sex couples from the definition of marriage was intended to discriminate against women or lesbians and gay men, as racial segregation was designed to maintain the pernicious doctrine of white supremacy."] But, the marriage law still was written on the understanding of certain (stereotypical) sexual roles. Since childbearing wasn't the only reason for marriage, as noted by the majority, this included things other than that issue.

Call it "pernicious" or not, the net result is the same: discrimination by sex and against gays and lesbians. We need not berate our ancestors to determine that current practice (and to protect "the core value" of constitutional provisions, not bare original meaning, to cite the majority's test, noting they are judges, not historians) makes their choices unjust in today's world.

Kelly Ayotte Wins Primary

"Moderate" Republicans breath sigh of relief:

She is a moderate conservative who opposes abortion, but would allow exceptions for rape, incest, and medical emergencies. She has spoken favorably of a timetable for the withdrawal of US troops from Afghanistan. And while she says she would have opposed President Obama’s nomination of Elena Kagan to the US Supreme Court, she probably would have voted to approve Sonia Sotomayor.

She was involved in O'Connor's last case as a justice.

Primary Day

Undoubtedly, the right of suffrage is a fundamental matter in a free and democratic society. Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.

-- Reynolds v. Sims

The choices made by those enjoying this fundamental right is my concern, this year depressing me on that front. If you are upset at how things are going, which is totally rational, the solution is not to vote for "tea party" (seriously?) candidates or even in most cases Republicans over the Democrats available. Glenn Greenwald et. al. might "vote for the individual," which in a party system likes ours is a bit naive in various cases, but even individual choices show generally show us that.

Take Delaware. Palin's favorite has a shot in winning the Republican primary for the "Biden seat," even though the party itself seems not to want any part of her (see, e.g., Rachel Maddow recently). This shows the Tea Party is at times not the same as the Republicans -- it is a certain conservative strand of them. The Republican mainstream candidate is Rep. Mike Castle and various people say he is a decent enough person. But, even on that front, he still rarely votes for the Democrats (the senator from Alaska, however, saw the problem with even that) and is likely just to join with the usual Republican obstructionism, even if he isn't a total tool about it. And, I don't know of any reason to vote against the Democrat either. The guy keeping the seat warm seems to be a pretty decent senator too.

Periodic glances at TPM etc. that make it look like there is a reasonable chance to think Sharon Angle types will win in November on that front is really depressing. Seriously? Things are less stressful locally, since -- putting aside some random House seat -- the Democrats are pretty safe up here in N.Y. I'm not totally happy. Not too enthused about Andrew Cuomo, who is in no way as philosophically pleasing or anything like his dad. Probably a safe mainstream Democrat overall, though at times I get sort of an "asshole" vibe. Not that he has any credible opposition.

This is the general theme today, primary day. The primary issue for Sen. Gillibrand's opponent (Keer-stin Gillibrand, Clinton's replacement, has turned out to be a hard working sort who's heart is at least outwardly in the right place on things like gay rights and health reform) seems to be the need for a primary at all. After all, Chuck "I'm a bit of an ass" Schumer has no opponent. I am sympathetic and voted for Gail Goode as a type of message. As helpful as voting for John Edwards, perhaps, but so be it. My only real choice was for attorney general; picked one of four longshots, a "people's choice" (to cite one article) supported by my local assemblywoman (who I voted for, since she did nothing I know of to warrant otherwise) and Pete Seeger (not Singer!).

There are some real disputed races other than attorney general in the city, including some city council battles. I also had to pick six members for a Democratic convention of some sort out of seven (six names and an alternate). This is about as much of a joke as voting for a lower court judge -- I have no idea who these people are other than one or two officials (one my state senator) or what they basically do. I did a bit of research on the election and did not know of them. The League of Women Voters told me:

Offices on the Ballot for 2010: The 2 New York Senators and all members of the House of Representatives; Governor and Lieutenant Governor; Attorney General; Comptroller; all State Senators and Assembly members.

Only three (Gillibrand seat, attorney general and assembly) of these ran opposed for my district and only one (attorney general -- with so many candidates, there is a chance -- somewhat ridiculously -- of a run-off; the waste of time/money underlines the value of instant run-off voting) really contested in anything but name. The primary is not a waste of time, however, for two reasons. One, it opens up the possibility of a challenge, if the person deserves one. Two, it provides a low voltage first look at our new machines.

New York has been late to the party on this front though federal legislation passed a few years back has made it a matter of necessity to end our throwback lever machines. The League of Women Voters page has a YouTube demonstration of the new system. The voter signs in as usual (our "voting id" system) and is given a paper ballot. Mini cubicles are set up with pens to fill in the proper ovals (appropriately, my polling place is a school). Then, you go to the machine in which you feed the sheet for scanning. A folder is given so while you walk, the ballot isn't open to view. The demonstration suggests that "overvotes" will be flagged by the machine, which would have helped in 2000. There is no receipt.

It was pretty painless and I guess it's quicker (and cheaper -- there seemed to be two machines to feed ballots into but I might have missed something) than some machines which are more like ATMs -- you don't feed in a ballot (surely this will give rise to some cases where ovals aren't filled in properly or something?) but select your choices on the screen. Filling in six ovals for the convention nominees, for instance, was a bit tedious. If there were more races, it might have taken longer. People are fairly comfortable with ATMs by now. This is more akin to a standardized test, which many haven't taken for quite some time. Time will tell.

[Before I posted this, I checked the Election Law blog and it did flag some problems, the second a substantive one for third party candidates. I'm not surprised there were some problems on the first day out, which again makes it helpful that a low output primary day is when it occurred. This might be a problem as a matter of selecting candidates, surely, but better in this context.]

A final word about going out to vote. I might be a bit traditional and sentimental on the point, but do feel that it a good idea to have voters actually go out and vote. Physically going to the polling place, with options for absentee as needed surely, is to me a helpful way to remember your separate role as a citizen, a voter. There seems to be -- I use that word advisedly -- a symbolic value at least to have a voter go in person, instead of absentee. For those so worried about "voter fraud," it also is (to the degree it matters, which it really does not in real terms) less likely to be problematic if someone is physically present.

And, though it is not in place here, various tools and so forth can be present to help and encourage the voter. Either way, today's an important part of being a citizen. Bad choices or not, I hope many take it to heart.

[Update: I thought there might be a run-off for attorney general, but the person I thought would win (though less of a shoo-in than I thought) did so with a narrow plurality -- not even 40%. Other state races went generally as expected though the tea party candidate for governor won the Republican primary, sharing the honors with Mike Castle's opponent. A nailbiter in NH. NY state senator troublemaker and overall tool, Pedro Espada, also lost.]

Polygamy Scenario

What would happen if a foreign polygamous couple resided in let's say New York? An opinion letter by the Maryland attorney general concerning recognition of out of state same sex marriages had this interesting tidbit:

Fn 53 While it remains extremely unlikely that Maryland – or any state – would recognize foreign polygamous marriages generally, such marriages have been recognized by American courts for specific purposes, such as inheritance and property succession. For example, in a case involving a native of India who died intestate in the United States, the court held that his two legally wedded wives in India would be allowed to share in the estate, and indicated that the public policy exception would have precluded recognition “only if decedent had attempted to cohabit with his two wives in California.” In re Dalip Singh Bir’s Estate, 188 P.2d 499, 502 (Cal. App. 1948); see also Scoles & Hay, Conflict of Laws (1984) at 446 (“The courts do recognize the legal existence of and give effect to foreign matrimonial unions that do not conform to requirements for the marriage relationship among their own people.... It may be doubted whether a foreign visitor would be permitted to cohabit here with his four wives, although even this is uncertain. Children of the union would probably be recognized as legitimate.")

The 1948 ruling cited a few cases from the 19th Century involving possibly polygamous Native American marriages. At least one case involved legal liability or rights not present if a woman was married; would this be transferable to a case of spousal immunity for multiple wives? California is more liberal in respect to comity, but cases from more conservative states were cited. As shown, it also is not just a matter that suddenly arose in our same sex marriage era.

In fact, given some tribes had same sex marriages for quite some time, that very issue in theory could have arose in the 19th Century as well. At least, applying general principles. Meanwhile, there is a case in Canada examining the very issue of polygamy. As noted by the letter, this is a potent issue given the number of nations that allow the practice.

Chiefs Hang On ... Exciting Finish

Conditions helped but the defense won the game.

NY Wins/Loses 1-0

Some guy named Reid Brignac did in the Yanks, who have done pretty well this year with flawed stuff, while a junior varsity version of that pitching duel ended on the Mets end with a win against Chan Ho Park (yeah, he's a Pirate now). Chiefs up by 14 at the Half!

Like a Bad Night at the Bar

Problems scoring all around. No score for the baseball teams (versus superior and inferior competition) into extras. But, true ineptitude, down to the final play, for the Jets. Who, with a bit less sloppiness still had a chance to win. Overhyped indeed.

Sotomayor For/Against Holly Wood

Justice Sotomayor wrote the 7-2 ruling dismissing a habeas claim of an allegedly mentally disabled (or enough so) capital defendant. But, she (alone) last week supported a stay of execution. It's moot now.

Meghan McCain

And Also: "The policy implements a referral process to relevant Offices of Inspector General whenever there are credible allegations of government wrongdoing in a case, but the assertion of state secrets privilege might preclude the case from moving forward."

Meghan McCain is promoting her new book Dirty Sexy Politics as shown by recent appearances on Rachel Maddow [two segments on "The Interview"], Jon Stewart [after it covered a search for the next justice ... in Staten Island] and a write-up in the NYT. The article portrayed her as a cheery open-minded optimist:

Her goal for the book, she said, is to “inspire people who feel disconnected from the political process,” particularly people her own age. “I’m friends with people that probably would describe themselves as socialists and people that are much more conservative than I am,” she said. “I can always find a middle ground.” ...

“I’m pro-life, but I’m pro birth control. I am also pro being realistic about the kind of world we live in.” She supports marriage equality for gay Americans, she added, because, “I have friends who are gay, and I’d like to go to their weddings.”

She says she loves the Republican Party, self-tested herself and determined she was a 8 of 10 (support of cap/trade policy hurt ... must have been when her dad didn't support it, but who knows?) but is upset at the extremism of her party today. Not surprisingly, MM is glad her dad won the primary: "My father hasn’t changed. The media bias has." Some of the comments were not supportive on that point. After all, he shift to the right seemed rather apparent and on this subject, who is she to talk about bias? But, on the other hand, maybe he always was a "whatever gets me elected" hypocrite. I'm not sure that is what she meant though.

The Maddow interview was nice and all -- RM clearly likes her energy and so forth, and I can see why -- but it was not really totally honest. Yes, she admitted that she disagrees with her dad on DADT. But, if MM (she seems like someone who would have a nickname like that) is all for moderation and honesty, she has to be faced with basic questions in these interviews. The party isn't moderate now. Does she support various hard right, unmoderate (divisive) candidates that are running now? Is her loyalty to the party kneejerk on that front?

A true moderate, like um Lieberman (who she wanted to be McCain's v.p.), would be willing to vote for the other party if the alternative was lousy. And, what about being pro-life? What does "being realistic" mean? Does that mean she realistically (is it only that?) aware that it still must be a woman's choice? Pro-life or not? And, if the candidate is not so supportive on such basic things, would she be willing to vote for the other person? Where is her line?

I think she honestly is trying to be a voice for young Republicans and those interested in politics in general, who are socially liberal on many issues, but if Meghan McCain is going to kneejerk support Republican tools (or any such people) who want to force women to have children even if their mates and religious advisors agree that they need not or to amend the Constitution to bar same sex marriages, she's still sort of part of the problem.

She is lying to herself. She is no 8 of 10 as the party is now set up and if she wants to reform it, I'm supportive. But, that includes some tough love, and some bluntness that these interviews are likely to often avoid. When it comes to her own dad, it's somewhat okay to give her a pass. Who is totally unbiased about loved ones? But, in general, not so much.

I will try to read her book when it comes out and get back to you on it.

Don't Be Stupid

Instead of just taking a knee or not being reckless, Dallas fumbled deep at the end of the First Half. 10-0. A long FG made it 13-7, but on the last play, a score. Oh wait. A hold. End of Game. Awww.

Be Less Messy Than Your Opponent

Such was the idea with the NYG today in a messy win that was cemented by a relatively strong second half. See also, the Eagles losing to the Packers, their strong second half ending with a whimper when Michael "catch me if you can" Vick could not get one yard.

Message: "Everything DIDN'T Change"

9/11 was a seminal moment, but the sky remained blue. I still took the subway home from Manhattan. The "war on terror" is not a unique conflict except that many conflicts have unique qualities. And, it doesn't justify the hate and cheapening of rights. IMHO.

9/11 Message

The goal of any organized terrorist attack is to goad a vastly more powerful enemy into an excessive response. And over the past nine years, the United States has blundered into the 9/11 snare with one overreaction after another.

-- Ted Koppel (read it all)

Quote Me On That

Taking a break from Friday Night Lights (btw, Slate had a weekly discussion about it for the last two seasons), I borrowed a copy of the first season of Drop Dead Diva for a re-watch and special features.

The show concerning a model who came back to life as a frumpy lawyer. The character stuff tends to be better than the legal, but overall, especially with the benefit of ff, a good watch. And, the source of a few choice quotes, not only some amusing comments by Stacy! Grayson tells Deb how the "law never stands still ... it's a reflection of society." Ah, like a mirror! A "smart mirror." Also, "law is the wisdom of the ages wrapped in the opinion of the moment." Clearly, a living constitutionalist!

I note in my profile that I'm not an expert in the subjects for which I write, just an educated civilian. Still, there is some truth to this:

A “layman” who reads the text of the Constitution, and studies the law, and understands the interplay of precedent with the text, and learns how the different parts of the text fit together, and works to challenge their pre-conceptions as opposed to just finding the parts of the Constitution that agree with their a priori beliefs... well, they’re the equal of any constitutional scholar. Of course, at that point, they’re no longer a layman. They are a constitutional scholar.

Well, use a different word, to keep the humility in there, but a good point is made there. The average person often does not look at law (or various other subjects) in a nuanced fashion. Some retain their average bona fides, but have done enough reading and analysis on their own -- it need not be professional or anything -- to take themselves to another level. Again, this can be true in other areas, like let's say car repair or so forth. At some point, a person has a certain skill-set, one they should be modest about given they still are not a true expert, but aware enough that they know more all the same.

Meanwhile, a few interesting lower court rulings concerning Second Amendment rights while being found to illegally possess marijuana (though not quite addressing the medicinal possession issue) and First Amendment protections for tattoo parlors.

DADT Struck Down

[Update: A comment to a somewhat confused Balkinization analysis cites this interesting discussion of when Presidents (or SGs) don't defend statutes. The various interests involved make it more than a matter of a single President thinking said law is unconstitutional. So, Obama warily defending DADT in court has some justification. It's hard though -- DADT and DOMA is based on sand, and trying to defend it without looking like a tool is tricky.]

A federal judge, in a trial set to begin Sept. 13, will apply a new standard to the military’s “don’t ask, don’t tell” policy. This time, the burden will be on the military to prove not that Witt is a lesbian – her sexual orientation is not in dispute – but that her homosexuality is harmful to her unit’s cohesiveness.

-- Recent News Item (More here)

Right before the remand of Witt v. Department of Air Force (9CA) was due to be tried, another federal judge struck down DADT under its standard as well as under the First Amendment. Witt held that Lawrence v. Texas had implications in the military, setting up an intermediate level of scrutiny that put the burden on the government. The government would have to show that unit cohesion required the policy. This is notable since Lawrence was a criminal case, one that surely had civil implications, but how would it apply in the military context? And, what level of scrutiny was required? The First Amendment was not dealt with in that case.

[Update: Via a comment here, I see that Witt actually cited a military court of appeals ruling that applied Lawrence to the military context using heightened scrutiny. The case involved sex between people of a different rank, so the "consent" exception to Lawrence applied. But, the fact the "UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES" applied such careful review underlines the legitimacy of the review in this context.]

Witt split the baby, noting its language and citation of fundamental rights precedent suggests at the very least more than rational basis review. En banc review was denied, a few judges dissenting, Kozinksi doing so since he felt it warranted close and careful review. Note that Kozinski joined the unjust ruling discussed yesterday. Here his concern was probably warranted, the matter just the sort of thing full review is there for. He also suggested that the policy might change in the meanwhile. That was December 2008; since then by the data cited in this opinion, hundreds more were kicked out.

[The case at issue here was brought by the Log Cabin Republicans, officially a non-profit corporation. Yes, a corporation. The horror! Yes, it had standing to defend various members, but such is the case for other corporations too. This is why just citing that a "corporation" is involved (e.g., NYT or NAACP) is not enough as some sort of scare tactic.]

As to the immediate case, the discussion notes that the policy does not meet the test; instead, it burdens the military in various respects. Thousands of people, many trained in necessary skills, are lost as "moral waivers" are necessary to fill needs. The usual "meritocracy" is not followed. Distrust is promoted in the ranks because of the resulting secrecy. It is not needed for unit cohesion. And, even in respect to privacy, other than basic training, there is enough separation for that not to be a problem. [Rachel Maddow in an interview with a witness Friday night notes that government actually cross-examined him about this issue. So, even if the government didn't put on their own witnesses, it still acted like tools here.] The delay in many cases until people came back from overseas underlines the lack of necessity.*

Overall:

The Don't Ask, Don't Tell Act infringes the fundamental rights of United States servicemembers in many ways, some described above. The Act denies homosexuals serving in the Armed Forces the right to enjoy "intimate conduct" in their personal relationships. The Act denies them the right to speak about their loved ones while serving their country in uniform; it punishes them with discharge for writing a personal letter, in a foreign language, to a person of the same sex with whom they shared an intimate relationship before entering military service; it discharges them for including information in a personal communication from which an unauthorized reader might discern their homosexuality. In order to justify the encroachment on these rights, Defendants faced the burden at trial of showing the Don't Ask, Don't Tell Act was necessary to significantly further the Government's important interests in military readiness and unit cohesion. Defendants failed to meet that burden. Thus, Plaintiff, on behalf of its members, is entitled to judgment in its favor on the first claim in its First Amended Complaint for violation of the substantive due process rights guaranteed under the Fifth Amendment.

The policy also violates the First Amendment. It is an illegitimate content based regulation -- "distinguishes between speech regarding sexual orientation, and inevitably, family relationships and daily activities, by and about gay and lesbian servicemembers, which is banned, and speech on those subjects by and about heterosexual servicemembers, which is permitted." The military has more discretion to regulate speech, but the policy still is "far greater than necessary to protect the Government's substantial interests." And, again, as suggested above, the policy not only interferes with sexual privacy overall, but general freedom of expression.

The very name of the policy underlines the speech aspect, even if conduct is also involved. When the policy was first proposed, (then chairman of the Joint Chiefs of Staff) Colin Powell differentiated it from racial integration of the military: "skin color is a benign nonbehavioral characteristic, while sexual orientation is perhaps the most profound of human behavioral characteristics." The use of "benign" is telling; also, as the Supreme Court recently noted: "Our decisions have declined to distinguish between status and conduct in this context." Resting on the law and legislative action itself ["it again must be noted that Defendants called no witnesses, put on no affirmative case, and only entered into evidence the legislative history of the Act"] did not do the trick here.

The Obama Administration is clearly just trying to run out the clock here. But, meanwhile, federal judges have to do their job. Unlike in the last case, they are not supposed to pass the buck. As Rachel Maddow notes, meanwhile people continue to lose their job.

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* Some discussion:

Among those discharged were many with critically needed skills. According to the Government's own data, many of those discharged pursuant to the Act had education, training, or specialization in so-called "critical skills," including Arabic, Chinese, Farsi, or Korean language fluency; military intelligence; counterterrorism; weapons development; and medicine. (Trial Tr. 199:24-200:5, 204:23-24, July 13, 2010; Trial Ex. 9.) Far from furthering the military's readiness, the discharge of these service men and women had a direct and deleterious effect on this governmental interest. [critical skills]

Citing a Pentagon study, he opined that for every person discharged after ten years of service, six new servicemembers would need to be recruited to recover the level of experience lost by that discharge. (Trial Tr. 1029:6-23, July 20, 2010.) With that background, Dr. Korb opined the Don't Ask, Don't Tell Act negatively affects military recruiting in two ways: its existence discourages those who would otherwise enlist from doing so, and many colleges and universities will not permit military recruiting or Army ROTC programs on campus because the Act's requirements violate their employment nondiscrimination policies. [skilled lost]

In addition to the increased numbers of convicted felons and misdemeanants allowed to join the ranks of the military forces, Professor Frank testified that increased numbers of recruits lacking the required level of education and physical fitness were allowed to enlist because of troop shortages during the years following 2001. ['moral waiver']

He described the military as a meritocracy, but testified that the Don't Ask, Don't Tell Act detracts from the merit-based nature of the organization, because discharges under the Act are not based on the servicemember's failure to perform his or her duties properly, or on the effect of the soldier's presence on the unit's morale or cohesion. [merit]

Judges as Umpires?

Various times when they said "no way." Meanwhile, the appeals court has granted a temporary stay on the stem cell ruling.

"Don’t Be A Dick"

One thing that some atheists promote is the "don't be a dick" aka "edgy yet friendly" principle. This is a good principle for advocacy, one not shared by all. A dick is annoying and often counterproductive, sometimes especially those with good overall views. So, DBAD!

Abdulrahman Zeitoun et. al.

[Update: As expected, even in his flu weakened state, Glenn Greenwald has a post up about this and will add more later. And, he rubs it in about Obama. Fine. But, the alternative is still worse. People might need more to care about the next election, but that alone is a reason to care. No matter how aggravating it is. Not that I don't get the anger. Well deserved that. More commentary/background.]

Arbitrary imprisonment and torture under any circumstance is a “ ‘gross and notorious . . . act of despotism.’ ” Hamdi v. Rumsfeld, 542 U.S. 507, 556 (2004) (Scalia, J., dissenting) (quoting 1 Blackstone 131-33 (1765)). But “ ‘confinement [and abuse] of the person, by secretly hurrying him to [prison], where his sufferings are unknown or forgotten; is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.’ ”

-- Mohamed v. Jeppensen Dataplan Inc. (dissenting opinion)

Zeitoun is an award winning book concerning a Syrian immigrant with a successful contracting business (and a native American convert for a wife) stays behind to keep an eye on things during Katrina and gets caught in a Kafka-esque nightmare (the last 1/3 of the book). A powerful page turner. An innocent man, trusted by many to protect their property, was seized with three others, not allowed a phone call and kept in prison for weeks while his wife started to believe he was dead.

This was the result of the anarchy in the midst of the storm, though it is hard to justify not finding some means to set up some sort of system where someone like him could not even have contact with the outside world for around three weeks. Even if he was guilty, which he was not, his treatment was cruel and unusual. A basic violation of rights. But, this for some is too much to expect. As the majority in a 6-5 ruling, overruling the panel regarding a civil suit to obtain some relief in a case of extraordinary rendition, just ruled in respect to the anti-American "state secrecy" doctrine in place now:

“This case requires us to address the difficult balance the state secrets doctrine strikes between fundamental principles of our liberty, including justice, transparency, accountability and national security,” Judge Fisher wrote. “Although as judges we strive to honor all of these principles, there are times when exceptional circumstances create an irreconcilable conflict between them.”

Somewhat different facts, same results -- for some people, when it comes to our basic values, actually enjoying them all is too much to ask. Yet another excuse is found, so that:

“To this date, not a single victim of the Bush administration’s torture program has had his day in court,”

As the dissent -- again it's 6-5 and the majority admits they are troubled by the result -- notes: "The majority dismisses the case in its entirety before Jeppesen has even filed an answer to Plaintiffs’ complaint." This is sham justice. It gives aid and comfort to those who say that President Obama (to be generous) in effect b.s. us when he said he would change Bush's policies. As Charlie Savage, who joined the NYT and is an expert in this field notes in the article, in rather harsh language:

The decision bolstered an array of ways in which the Obama administration has pressed forward with broad counter-terrorism policies after taking over from the Bush team, a degree of continuity that has departed from the expectations fostered by President Obama’s campaign rhetoric, which was often sharply critical of President Bush’s approach.

The absurdity of it all is underlined by the fact that the majority blocks even a chance for judicial relief, a chance to show the district judge that there is enough there without the secret evidence. Tying the district court's hands is unjust, but some middle ground might bring forth some semblance of a fair hearing. The majority however -- akin to raising the chance of a pardon to some wrongly accused -- counsels executive and/or legislative relief. If only! What do they think we are, Canada? This besides ignoring the proper role of the courts:

Permitting the executive to police its own errors and determine the remedy dispensed would not only deprive the judiciary of its role, but also deprive Plaintiffs of a fair assessment of their claims by a neutral arbiter. The majority’s suggestion of payment of reparations to the victims of extraordinary rendition, such as those paid to Japanese Latin Americans for the injustices suffered under Internment during World War II, over fifty years after those injustices were suffered [Maj. Op. at 13554], elevates the impractical to the point of absurdity. Similarly, a congressional investigation, private bill, or enacting of “remedial legislation,” [Maj. Op. at 13556], leaves to the legislative branch claims which the federal courts are better equipped to handle.

Given the shoddy basis* (with three no nonsense FDR appointees dissenting) of the start of all of this, it is not too surprising, sadly. This lawsuit shouldn't be occurring. A means should be present to obtain relief. If the U.S. government wants the shield of state secrets, there is a way to balance all those American values without sacrificing one or more. The most obvious is to provide fiscal relief to those wrongly treated. This is akin to use of wrongly seized evidence: pay the piper, if you want to play a wrongful tune. But, that's too much to ask. The majority claims this is met:

In September 2009, Attorney General Eric H. Holder Jr. issued a new policy about future invocations of the state-secrets power, requiring higher-level review before it could be invoked in a lawsuit and promising that it would never be used for the purpose of covering up illegal activity or preventing official embarrassment.

B.S.! What is this lawsuit if not a means to prevent such cover-up, to prevent injustice and un-American behavior from occurring once again? If the government wants to claim that the lawsuit is just about revealing secrets, pay the people the money and/or provide some means of reparation. Provide some relief. But, as with Maher Arar, it does not want to do this. Meanwhile, relief in the courts are repeatedly blocked. Promises that we will not do such things again are made, but the government continues to act in ways that are shameful.

[And More: As noted by a NYT op-ed today, the majority acted as it did "even though it is public knowledge that Jeppesen arranged the torture flights," ensuring us that this was a special case. But, I don't believe it, especially given the overuse of secrecy in the past. Why should I trust the an administration who promised change on the point and gave too much of the same? More "trust us" b.s., when "doubt us" is more appropriate, more American. More appropriate when the government has given us no very good reason to give them the benefit of the doubt. Give them a default judgment. Then, maybe.]

And, without safeguards, what about when a new regime comes into power? When the next 9/11 or Katrina will come? Who will be the next Abdulrahman Zeitoun to be lost in the system, to use a comparison found in the book, like a stray caught in a fishnet, a dolphin or other animal caught by mistake or basically an unfortunate victim of the process? Such as some civilian killed in a drone attack, who all too often are assumed to be somewhat guilty by many people anyhow?

It's all very depressing. I think the courts can manage here, but fine, let's say they cannot. The executive and legislature then should do something. Such is the appeal of the majority here. But, where's the true legislative reform of the state secrets doctrine that was in the works? The Obama Administration doesn't really want one, since it feels their hands will be tied too tightly. Yes, such is what occurs with checks and balances. The travesty is that such things underline how moderate Obama is overall, push comes to shove, such moderation these days supporting conservative things. But, not enough apparently: we need to make things worse!

And, if you aren't going to show any real desire to bring people to justice, provide fiscal reparations or even provide a full airing of what occurred ("let's look forward"), trusting them to take basic power away from the courts to secure justice. 6-5 splits also should go the way of liberty. If it is that close, what the majority allowed here should not be done. If you are so uncomfortable, one or more of the judges should have joined the minority, which again, didn't want to give away the store or anything. Finally, those who think Obama just did this as some sort of thirteen dimensional chess move to test it in court are really kidding themselves.

Can't ask for too much liberty in these times, I guess.

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* Lest we forget, the original state secrets ruling -- discussed here -- had three dissents, the hard-nosed FDR appointees Black, Frankfurter and Jackson. They notably merely cited the decision below, one written in the midst of the Cold War. The opinion by Judge Maris in part noted:

The Government presses upon us the contrary conclusion of the Britich House of Lords in Duncan v. Cammell, Laird & Co., (1942) A.C. 624. The case is distinguishable in that the plans of the submarine Thetis there involved were obviously military secrets and the suit was between private parties. But we do not regard the case as controlling in any event. For whatever may be true in Great Britain 22 the Government of the United States is one of checks and balances. One of the principal checks is furnished by the independent judiciary which the Constitution established. Neither the executive nor the legislative branch of the Government may constitutionally encroach upon the field which the Constitution has reserved for the judiciary by transferring to itself the power to decide justiciable questions which arise in cases or controversies submitted to the judicial branch for decision. 23 Nor is there any [**27] danger to the public interest in submitting the question of privilege to the decision of the courts. The judges of the United States are public officers whose responsibility under the Constitution is just as great as that of the heads of the executive departments. When Government documents are submitted to them in camera under a claim of privilege the judges may be depended upon to protect with the greatest of care the public interest in preventing the disclosure of matters which may fairly be characterized as privileged. 24 And if, as [*998] the Government asserts is sometimes the case, a knowledge of background facts is necessary to enable one properly to pass on the claim of privilege those facts also may be presented to the judge in camera.

Any superiority cited to the U.K. or Canada on these matters are a tad ironic these days. But, the sentiment holds true.

Luca Duda?

"Lucas Duda was 0-for-2, knocking his average to .045." Yes, but unlike Mike Hessman, he showed some life on the field.

Gee, Not Bad

Pitched well, got a RBI on his first hit and wasn't kept in long enough to blow it (as happened once to PM) -- not a bad rookie outing. But, tacking on would have made things easier late! Hessman doing nothing again didn't help. Seriously, the guy is dead weight.

Stem Cell Ruling Update

Update on the embryonic stem cell ruling helps Bush's policy look different (and allow some research to continue hopefully), but perhaps not in a very convincing fashion. Time for legislative action still.

"Adult Movies" (Not Porn)

I agree -- "adult movies" should be defined better, just like ratings shouldn't just be a matter of curse words or body parts. Flashback to my high school intro to letters to the editor: the silliness of giving a film like this an "R" rating.

My .02

GG brings to mind my recent praise of a guest Balkinization contributor here in his respect for comments. The failure of back/forth is one reason I don't like the new Slate comment system. I give my .02 on "errors" here: if they helped, they helped that way too!

Vegan Cupcake Queen

As a vegetarian who tries to be as vegan as possible, this is much appreciated, though I'm not a cook. I bought a kettle since boiling water without one didn't quite work. Vegan alternatives often are quite tasty; the problem is having them easily available!

Now Pitching Oliver Perez ... This Can't Be Good

The OF that usually kills the Mets actually missed a catch, but Pelfry collapsed early. So, it's yet another bad game against the Nats. Those "let's go Mets" Citibank (they play at Citifield) commercials with the mascot are unfortunately timed, besides being a tad annoying.

Christmas: A Candid History

This provides a nice bite sized discussion of another holiday.

Ronald C. Den Otter

With comments closed off or troll dominated discussions, a recent discussion by a guest blogger regarding his new book on judicial review at Balkinization is a nice diversion. If only the book wasn't so damn expensive -- overpriced college textbook price.

27 Runs, Three Games, One Win

More Mets fun. 6-3-18. [Not 6*3=18] Admittedly the last is a laugher, but the other two warrant at least one win, right? And, the last one looked like it was going to be another nailbiter until someone finally had a clutch two out hit and they really added on late.

"Interesting Freedom of Religion Case from Israel"

H/t David Bernstein, who avoids the kneejerk this time around. Basically, a private school is allowed to require neutral dress, even if a teacher submits a religious reason. A fictional account sorta similar, Does My Head Look Big In This? has a different result.

Saturday Thoughts

VC Off The Rails: I check out Volokh Conspiracy to get a taste of another p.o.v. (as I have noted, I probably don't do enough of that though then I find someone who seems to be on my side to be off base, and figure I'm doing okay) and comments that answer it. It has various obsessions like "Obamacare" (next up: LBJ-Care; seriously, how lame -- the SENATE was the primary driver there) and now a Jane Mayer article on the Koch Brothers. Orin Kerr* joined in -- he couldn't get his head around the idea that the article suggesting they gave money in part for self-interest. Mark Field, Dilan Esper, et. al. answer them well.

Alicia Witt: I first watched her years back on Cybil and caught her on Craig recently via YouTube. Also, she plays a mom on my current obsession, Friday Night Lights (S4 is already in the library! but, I'll wait a few weeks to watch the first half). It turns out that besides being a good actress and well hot (she is a bit pale), Witt is also a singer (during one interview, she noted she played piano as a teenager). Good video. BTW, at times, she sort of reminded me of Chelsea Clinton. Or, maybe the other way around. Does she sing too?

Mets Still Stink Watch: Another wasted year and September playing out the string. Yesterday's game was depressing because you figure that when they actually hit (two homers!) and have Dickey on the mound AND play the Cubs, that they would win. Nope -- Dickey decides not to have it that day. In respect to a poll, and having been in both locales, I would pick Wrigley over Fenway. And, not only because they didn't accept out of state ids and Wetteland decided to blow a save (one of three that year) the day I went! Seriously, both were nice. Wrigley might have been a bit more open. Both smaller than a NY-er might be used to.

[And more. The rookie today seemed to have some potential and some good defense from the youngsters -- yes, it's Triple AAA time again -- but the absurdity continues. Two outs plus a strikeout means another out doesn't score ... oh wait! wild pitch scores that run! So, the team is left relying on Niese and hitting to ensure the team is not swept by the Cubs. Having been swept by the Diamondbacks before, this is quite possible.]

Keith Over The Top Watch: Keith Olbermann is somewhat of a tool at times, a caricature of a liberal commentator, though can have some worthwhile content (and his heart is generally in the right place). But, his latest Glenn Beck watch is a bit much. What is with the childish puns? And, yeah per Glenn Greenwald, he is something of a too easy target, but given his viewership and all, it's okay to keep an eye on him. Still, at some point it does get a bit lame.

That's How You Do It: The charming thing about the interview excerpted here (sound clip) is that the person, who had endorsed her in the past, actually challenged her answers. Hey interviewers and "journalists" out there -- it's possible! And, can the establishment Republican running against her actually be that rare bird -- a half-way reasonable Republican? I'll believe it when I see it. She is cute -- she even gave a "Palin wink" in an appearance I found on YouTube. Did she trademark that yet?

And, summer is winding down. Seems about time. I think even many children are ready at some point to move on. New t.v. shows will be starting soon, the football season is upon us, the new Supreme Court term is not too far away and the '10 political season (with all these upset primaries, it has been with us for some time now) will get into full gear. Oh, that's just too depressing. So, the rookie starts today for the Mets, huh?

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* Kerr is something of a part-time tool and not only given he advises one (at least) on the Senate Judiciary Committee. He joined in the Koch Brothers defense, not getting his head around that they act in part out of self-interest. His serious cred helps, I guess, cover up those times when he is snarky (Kerr has a reputation as nice and all, but he can be very snarky, especially in comments) or promotes hard to take seriously stuff like that.

"Unusual"

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Sherry Colb has a column out entitled "Evaluating the Eighth Amendment's Ban on Only Cruel and Unusual Punishments." It deals with the "unusual" aspect, which often is not addressed when discussing the provision. [See, e.g., how little space is given to it here.] The clause, reasonably enough, is generally understood as a term of art, "cruel and unusual" read together to mean something. As Justice Brennan once noted: "The question, in any event, is [arguably] of minor significance; this Court has never attempted to explicate the meaning of the Clause simply by parsing its words."

Prof. Colb notes "unusual" is a way to limit the discretion that "cruelty" alone might allow -- if something is rare, it is understood to be suspect. But, she notes, rarity alone is not the test of cruelty. If something cruel is popular or there is some precedent, it is still cruel (understanding that this is a matter of degree); some disagreements aside, this should be true in the constitutional sense too. But, as she admits, the text only allows this be to a point. Also, perhaps the unusual nature is done because of "a humane purpose in selecting it," which again underlines the term has to be understood in context.

In his concurrence in Furman v. Georgia (death penalty) (linked above), Justice Marshall discussed the origins of the Cruel and Unusual Punishment Clause. He suggests the use of "unusual" might have been "inadvertent." The use of "illegal" punishments in one draft suggests a core aspect of the concern here -- the fear that an executive (king) would use unauthorized, that is in some sense uncommon (much law at the time judge made "common law") punishments. It is not assumed they would do this for the good of the criminals, but even if they allegedly did, it could very well be misguided if "unusual" punishments were used.

Thus, and people like John Hart Ely Jr. supported this view, "unusual" suggests that there is a type of due process aspect here, a way to prevent "arbitrary" punishments. Likewise, an equal protection component -- if someone is being treated in a way others are not, that is in an unusual way, it is problematic. As suggested above in both directions, this is not an absolute barrier. Just because everyone jumps off the cliff, we need not do it; and, just because no one does something, it doesn't make it wrong. Still, it is a sound general principle, particularly given our system of government and its basic principles.

So, in a constitutional sense, "unusual" can both mean "not common" and "unauthorized." Somewhat akin to Prof. Colb's thesis, the latter definition can be on some level idealistic, like "all men are created equal" holds up as a norm even if slavery is allowed. After all, "unusual" is not found in a vacuum, but in a Constitution with many other provisions. Finally, it all is somewhat relative. If something is present in a couple states (see, e.g., Kennedy v. Louisiana) or for certain groups of people, it is not necessarily "usual." On the whole, it still would be "unusual," since in most cases, it is not a general rule. And, this is basically how proportionality review is now applied by the Supreme Court.*

Majority rule is a basic principle in this country and especially in the context of judicial review of punishments authorized by statutory law, "usual" is a reasonable way to limit discretion. It is still not the only way.

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* Prof. Colb talks about the issue more here, citing Justice Thomas regarding punishments that are allowed but rarely used. As she notes, arbitrary and discriminatory use can result as much as careful application to special cases. And, it is hard to remove something already passed, especially if it is rarely used anyways. Again, it's important to see the sum of the parts here.

"Torture and Littering"

Judge Jay Bybee - he of the torture memo - dissents. Littering is littering, and Bybee finds that the regulation is as clear as a sunny day in the desert. This is the same Jay Bybee who thinks that terms like "torture" and "severe suffering" are so vague that it would be unfair to apply statutes prohibiting them to interrogators who waterboard people and keep them awake for a week at a time, naked and hanging in chains.

-- David Luban

"something creepy"

The question we confront today is what limits there are upon this power of technology to shrink the realm of guaranteed privacy.

-- Kyllo v. U.S.

Democracy Now! today discussed a 9th Cir. case that upheld the power of government agents to go on to your property, under your car, and install a GPS device that would allow them to track your movements 24/7. That is, without a warrant, though the legitimacy of such tracking even with one would be an interesting matter in various instances too. Is it really that hard to obtain a warrant when the plan is to keep track of someone's movements to such a degree? Again, even with one, tracking someone for civil reasons or whatnot might be troubling in certain instances.

As discussed here, the legitimacy of GPS use by the government has been a repeated issue for the lower courts, which has divided on the issue. The matter has been discussed here as well, I suggesting that "reasonable" should be taken to mean use of some common sense judgement. A GPS device is not like a beeper; the Supreme Court in such a case in the early 1980s noted (citations omitted):

Respondent does not actually quarrel with this analysis, though he expresses the generalized view that the result of the holding sought by the Government would be that "twenty-four hour surveillance of any citizen of this country will be possible, without judicial knowledge or supervision." But the fact is that the "reality hardly suggests abuse," if such dragnet-type law enforcement practices as respondent envisions should eventually occur, there will be time enough then to determine whether different constitutional principles may be applicable. Insofar as respondent's complaint appears to be simply that scientific devices such as the beeper enabled the police to be more effective in detecting crime, it simply has no constitutional foundation. We have never equated police efficiency with unconstitutionality, and we decline to do so now.

We are at this point. The case at issue in the broadcast suggests what it is at stake, though worse cases might be imagined:

Juan Pineda-Moreno was a suspected marijuana dealer. The police strolled up to his car — which may have been in his driveway or on the street — and attached a tracking device, data from which proved instrumental in prosecuting him. Pineda-Moreno appealed his conviction, alleging that his Fourth Amendment rights were violated because the po-po entered “the curtilage of his home” to place the devices.

Judge Kozinksi, the court jester of the libertarian wing over there, was outraged:

I don’t think that most people in the United States would agree with the panel that someone who leaves his car parked in his driveway outside the door of his home invites people to crawl under it and attach a device that will track the vehicle’s every movement and transmit that information to total strangers. There is something creepy and un-American about such clandestine and underhanded behavior. To those of us who have lived under a totalitarian regime, there is an eerie feeling of déjà vu. This case, if any, deserves the comprehensive, mature and diverse consideration that an en banc panel can provide. We are taking a giant leap into the unknown, and the consequences for ourselves and our children may be dire and irreversible. Some day, soon, we may wake up and find we’re living in Oceania.

He was in dissent, but recall that Scalia wrote Kyollo. Kozinski, who would probably make a great justice (I wouldn't like some of his rulings, but would take him over Roberts or Alito -- hey, he did the chief judge thing, right?) also noted that if the defendant was rich, he could avoid this sort of thing with gates and such. K. noted that diversity is promoted in the judiciary, but truly poor people don't become judges. Some were poor once though; like his childhood memories, that can matter.

Kozinski's expression of a "reasonable expectation of privacy" has one more notable aspect. He deals with one of the legal fictions of Fourth Amendment law: the fact we leave open our lives to third parties in limited ways (such as bank records) means we have no reasonable expectation of privacy over them from government surveillance. So, a government can obtain a collection of phone numbers you called, since it is available from the phone company. Any limitation here on Fourth Amendment grounds is basically merely statutory. This is absurd.

The majority here noted that children can go where the government agents did to place the GPS device. As the dissent noted:

The panel authorizes police to do not only what invited strangers could, but also uninvited children—in this case crawl under the car to retrieve a ball and tinker with the undercarriage. But there’s no limit to what neighborhood kids will do, given half a chance: They’ll jump the fence, crawl under the porch, pick fruit from the trees, set fire to the cat and micturate on the azaleas. To say that the police may do on your property what urchins might do spells the end of Fourth Amendment protections for most people’s curtilage.

"Reasonable" should not just be some complex term of art that allows us to ignore such realities because of some logical syllogism to "to shrink the realm of guaranteed privacy" to a degree to not make it worthy of its name. And, since reasonable expectations of privacy does not fall into any exact formula, determining the contours is partially up to us. Kyollo* falls both ways in that respect -- if something is "in general public use," privacy diminishes. If we accept a loss of privacy, the Supreme Court will likely not save us from ourselves.

For good or ill, this matter will likely be decided upon by the Supreme Court in the next few years.

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* Kyollo involves a special locale of privacy, the home, as does this case (at least, its outer perimeters). Scalia has shown some concern for the privacy of automobiles.

Scalia's majority opinion also speaks of the intimate nature of the home, which has been used to secure a general right to privacy over activities inside the home, even when a search warrant or otherwise legitimate invasion is present. He surely does not think that follows, but so be it. Poe v. Ullman (Harlan, dissenting) still holds true.

Nor does his reference to "common law" understandings lead him (as compared to many of us) to accept that the common law develops over time, past the original understandings of the provision. Or, at least, not to the extent of some (cf. his plurality here with O'Connor's concurrence). If the Framers accepted that "common law" is relevant here, this development would seem to be part of the package.

Friday Night Lights: Third Season

The DVD set had only one commentary and deleted scenes, which is a gyp, but good comeback from a dubious second season. Some new characters (wish there was more of Devin) and a wonderful "hard rain" episode. Some great moments in the last two as well.

An Inconvenient Friend

I like the disclaimer in An Inconvenient Friend, a good work of "urban Christian" fiction, that says anything referenced that seems real is "intended to give the novel a sense of reality." Better than ignoring such references with a disclaimer that says it's just fiction. Like some celebrity makes an appearance or something. So annoying.

Maybe, a word about the book. Let me first say that the author is either very gracious and/or a diligent person, since she is sure to thank everyone she finds who has said nice things about it -- I have never seen so many thank yous from the author over in Amazon comments. Second, I have read some uplifting books of this nature a few times, and do appreciate when it is written in a nice easy to read style. This includes a few amusing asides, even if now and then, the writing is a bit rough. I can see why the target audience -- black Christian women -- would enjoy it.

Not fitting in any of those categories at the moment, clearly the book can be enjoyed on some level by other readers as well. The book concerns a two women, who are in some ways alike (especially in their backgrounds), but in a very different place now. One is a successful wife of a doctor (Angelina) and leader at her church, though has problems with her marriage, and sadness from losing a child a few years before. The other is a younger woman, who plans to get to know her at church to take her place, just having an affair with her husband not doing it.

Someone with a bit of biblilcal knowledge would nod knowingly -- her name is Samaria Jones. Oh, Angelina (another symbolic name) has gone to a doctor to deal with fertility issues. "Dr. Luke," that is. That my friend, is an inside joke or reference. Samaria falls sway to Angelina's Christian message but continues to try to steal her a husband. Samaria might in the end be saved, but it all doesn't end well. This is part of the interesting aspect of it all. We only know Angelina forgave her husband from a preview of the sequel. There is clearly a "to be continued" vibe here.

[Angelina also informs that "to forgive" does not necessarily mean you will continue to be with the person involved. How she will end up with her husband and maybe Samaria -- her fate is left open -- perhaps will be dealt with in the sequel.]

The book has an interesting device -- Samaria narrates but we also are privy to Angelina's thoughts, though those chapters are done via a third person narrator. The very different perspectives both come off pretty well as does the contrasting locales, from the projects to an upper middle class (or rich) black church and home. We understand why Samaria acts like she does and quickly are rooting for her to find the right path. The book puts this to be faith in God, but in a big way it is faith in yourself (your inner voice, your conscience) as well as the need for special people close to you to care about and have them care about you. Thus, you can view events from a type of secular way, though I think the deepness of feeling and so forth involved still has a "religious" aspect to it.

I think it might be a good film too. Anyways, it was a good read.

Credit Card Law

The new credit card protections is but one of many significant pieces of legislation that are often selectively ignored when talking about Obama and a Democratic Congress. They might not do enough, but replacing them with Republican boobs won't make it better either.

R.I.P. Dorothy Sucher

And Also: At the end of the playoff waiver deadline, the Mets disposed of another marginal player, an apparently nice guy that I wish well on his new playoff bound team. Meanwhile, guess who popped up the other day? For cruelty sake or just for a laugh.

Ms. Sucher, who was a largely volunteer reporter, columnist and associate editor of The News Review from 1959 to 1970, worked at the newspaper again from 1993 to 2004, including two years as editor in chief. In the interim she had been in private practice as a psychotherapist, started writing books and was a leader of the women’s movement in Maryland. In 1978, she became a coordinator in the state for the National Organization for Women.

-- Dorothy Sucher, Reporter in Press-Freedom Case, Dies at 77

Reporter, psychotherapist [on that issue, see this], feminist and mystery writer. Some lady. She was also involved in a lesser known libel case that early on helped set the limits of targeting the press for controversial reporting of public affairs. It involved a small local paper reporting on a controversial land deal:

The petitioners are the publishers of a small weekly newspaper, the Greenbelt News Review, in the city of Greenbelt, Maryland. The respondent Bresler is a prominent local real estate developer and builder in Greenbelt, and was, during the period in question, a member of the Maryland House of Delegates from a neighboring district. In the autumn of 1965 Bresler was engaged in negotiations with the Greenbelt City Council to obtain certain zoning variances that would allow the construction of high-density housing on land owned by him. At the same time the city was attempting to acquire another tract of land owned by Bresler for the construction of a new high school. Extensive litigation concerning compensation for the school site seemed imminent, unless there should be an agreement on its price between Bresler and the city authorities, and the concurrent negotiations obviously provided both parties considerable bargaining leverage.

The articles cited allegations of "blackmail," which was taken to be an allegation of criminal conduct that was subject to libel proceedings, particularly because the paper knew or should have known the allegation was false. The paper was sued and lost to the sum of "5,000 in compensatory damages and $12,500 in punitive damages." A relatively small but significant sum for a small publication in the 1960s, putting aside legal costs. The Supreme Court reversed, noting a public official was involved, so a higher standard was in place for First Amendment purposes, and anyways, it was a fair reporting of public proceedings, "blackmail" used in a purely rhetorical sense. Likewise, the article itself made this clear.

The opinion was unanimous, though Justice White concurred on narrower grounds (Douglas/Black on broader ones), providing a clear-cut reaffirmation of basic First Amendment values. It might be an easier case given all the particulars, the public hearing and all especially, but it still sets forth basic values regarding preventing "the infliction of financial liability upon the petitioners for publishing these two news articles would subvert the most fundamental meaning of a free press, protected by the First and Fourteenth Amendments."

Along with the rest of her rich life, it is well to remember Dorothy Sucher and those like her for that reason. After all, though she wrote two mysteries and a book on gardening, her attempt to write about her involvement in the case didn't work out, apparently because of lack of interest.