Election Day

There is a certain charm of local elections, especially in off-years like 2019. Democrats won governor in Kentucky, control of the Virginia legislature but only fairly close in Mississippi. Local races in NYC, including ranked choice voting. It passed along with a lobbying regulation and other things many were confused over by large margins. To add a twist, I worked as a poll worker, which is civic if boring (5Am-10PM with two hour breaks).

Execution Watch: Charles Russell Rhines [Dead]

As I noted last time, the short term execution warrant approach (let's say one that expires at midnight) led to a case this year where the U.S. Supreme Court took too long to decide a last minute appeal, leading the state to run out of time. The person was later eventually executed (a new execution warrant provided) after the Supreme Court rejected the appeal.  My proposal would be to (except in extreme cases where something arises at the last minute) provide a buffer zone (perhaps twenty-four hours) for final appeals to avoid this happening.  Anyway, like the last entry, South Dakota provides an extended period (a week) to execute though the warden has to give forty-hour notice.  On Saturday, therefore, we knew Rhines was sentenced to die on Monday though the clock started the day before.

There is a last minute dispute on the proper lethal injection protocol, the claim being that state rules warrant him to get one of two ultra-short-acting barbiturates while the state wants to use another.  As noted in the past, there is overall some reason to be concerned about lethal injection protocols, including the efficiency of specific drugs and respect for some basic due process on procedures used.  There has been problems in both cases.  Rhines cites expert testimony and appeals to the text of the specific law in question.  So, not just some federal constitution claim.

One notable aspect here is that he is gay and claimed discriminatory bias tainted the proceedings.  One problem here is that the justices are strongly split on even using the possibility of racism to pierce the privacy of the jury room to question the result.  But, especially with only two people on death row in South Dakota suggesting the possibility of arbitrariness is if anything more present given small sample sizes, there does seem to be credible evidence here of problems.  He also made other procedural claims.  Supreme Court rejected all without comment.  Rhines brought back the claim of discrimination in his final appeal to the Supreme Court.

After 1913, someone was executed in South Dakota in 1947 (murder of a state agent), the next execution was in 2007.  Of the four people executed since then, two were executed for the same correctional officer's death. Talk about "special circumstances." The torture/murder leading to that 2007 execution also covers one of the two people on death row now, something being found wrong with the conviction of that second person.  This is an example of how even the same crimes can result in different results. 

Charles Russell Rhines, the other one on death row, was sentenced to die for the torture murder of a store clerk during a robbery.  He has been on death row for over twenty-five years.  Thus, we have the length on death row issue that comes up in various case.  Rhines is now in his early sixties and selectively executing one long term prison resident for a heinous murder to me constitutionally arbitrary and bad public policy. Yes, heinous:

Rhines, caught burglarizing a doughnut shop in Rapid City, South Dakota by an employee named Donnivan Schaeffer, stabbed the 22-year old in the abdomen and back. Then, as Schaeffer pleaded for his life, Rhines thrust the blade into the base of his skull.

The horrible method of murder during a robbery here is why his crime was found to fit within the aggravating factors that bring forth a finding of capital murder.  I'm still not sure if murder of a witness to a robbery is the sort of "worse of the worst" type of murder warranting the death penalty in a state where four people were executed since the Truman Administration.  Murder of a correction officer, if we allow the death penalty, very well might be.  Not factoring in other concerns.

Two would be being one death row for twenty-five years after being sentenced to die in significant part because you are gay.  But, though Sotomayor showed some concern about denying some assistance for the clemency hearing, no justice even commented on this matter. (Might have dissented privately.) The third final order involved the argument that the state was not following its rules for lethal injections.  That is a technical issue that I understand (especially with multiple comments on this issue in the past) the justices going over again on the record.  I appreciate Sotomayor following her now apparent habit to clarify her vote in death penalty cases even when she does not vote for a stay.  And, the long time on death row issue was not specifically flagged from what can see, even if Breyer wanted to reference it again.

Unlike Brennan/Marshall and eventually Blackmun, the more anti-death penalty justices (RBG joined Breyer in Glossip but tends to let others speak; Kagan is less often a vote against the death penalty but joined/spoke out in certain cases) do not comment each time there is an execution.  But, the anti-gay issue was worthy of comment, even if it was to say that they considered it again or there isn't enough material on the record to be able to base holding up the execution.  The silence is unfortunate.

SCOTUSBlog summarized things here.  He was executed.

Read more here: https://www.miamiherald.com/opinion/opn-columns-blogs/leonard-pitts-jr/article213672629.html#storylink=cpy

Supreme Court Watch

After a bit of break, the Supreme Court is back in action with orders and oral arguments. Also, over at Oyez.com (Slate recently had Kagan's partisan gerrymander dissent from the bench), the opinion announcements (including dissents from the bench; RBG has one in the cross display case) from last term are available. Again, why can't SCOTUS provide this on its own website?  The fact it is going to be released anyway just adds to the stupidity.

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It turns out that "Beto" O'Rourke deciding to end his presidential campaign (who is the next "B" level candidate to do this? Booker? Klobuchar?)  is not the only federal government news from Friday.  The Supreme Court released a stand alone order to grant review to a case as it sometimes does, this time before an official day to release orders.  I'm somewhat curious about the dynamics of their decision-making here since it seems that they are sort of telling you something by singling things out.  Along with extending oral argument in the DACA cases, this was taken up:

A ruling for Liu and Wang could have a significant impact on the SEC’s enforcement efforts: In their petition for review, they told the justices that in 2018 the SEC collected $2.51 billion through disgorgement – over a billion dollars more than it collected in civil penalties. The case will likely be scheduled for argument early next year, with a decision to follow by summer.

In a term with various hot button cases, this might be lost, but sounds like it can be a serious matter especially given the interests of a President Warren.  The grant is interesting in part because the solicitor general opposed it, asking for the two courts below upholding the practice to stand. The plaintiffs argue that the enforcement is in effect a penal measure that was not authorized by Congress.  I do not know how strong their case is but it does sound like an important case to keep an eye on. 

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Meanwhile, the impartiality of the justices was questioned by meeting with a conservative marriage group that were involved as amici in recent cases.  Kagan also spoke at a law school who signed an amicus brief in the DACA cases.  The link pushes for ethics rules that apply in both cases though Alito and Kavanaugh speaking at some law school probably would look somewhat less bad.  I don't know how far to take that rule though as a matter of good policy can see the concern.  The wider issue of having clear consistent ethical rules that apply to the Supreme Court is an important aspect of government ethics generally.  There is some lack of clarity there and repeated matters of public concern.

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Also, this article is getting some attention, including a concern for a celebrity case.  As is often the case, the novelty is a matter of degree, the "good old days" often a fiction.  For instance, over history, multiple justices had political ambitions and more than one resigned to actually try or obtain political office. Kavanaugh shows about the usage of politics in confirmation hearings, but do not know about someone that directly involved at least since Scalia and Cheney being friends.  Justices in the past also had public roles off the Court, including as professors, writers and so forth.  Plus, it is a reflection of the times, even if only state judges ethically are allowed to publicly be on social media like Twitter. 

The increase of a "celebrity justice" concept does suggest a need to address the matter but the ethical rules touched upon above to me is the way to go. Her per curiam opinion approach to me is dubious.  The use of gratuitous (allegedly) concurrences and the like is surely not new.  Was she upset when liberals did it in the past?  The tendency went back to the later days of the Marshall Court.  And, unless you simply stop the justices from having a public role, would this not just encourage them even more to have off court ideological moments in person and writing?  Plus, she realizes that hiding the ball will lack transparency.  Chief Justice Marshall only sounded above the fray.  Ignorance is not bliss.

I think RBG has been overexposed here and certain justices have shown up at some dubious ideologically inclined events but up to a point public appearances that will likely lead to some "fan bases" are acceptable.  Sotomayor and Breyer in their own ways done a lot to promote their views though Sotomayor has a more "celebrity" role as seen in her autobiographical writings.  Would she stop that sort of thing if her quota of writings on the bench are anonymous? I think even anonymous writings there have touches that suggest who wrote them, and if they all were, we would then have more people trying to parse.

To the extent the public are wary about the Supreme Court, this is a too cute way of addressing the problem.  A major issue lately is the nature of the Gorsuch and Kavanaugh nominations and the ideological push to fill lower courts.  Anonymous opinions will not change that sort of thing.  Judges are not fungible and cases that reach the Supreme Court repeatedly will be tough divisive subjects and hiding dissents there to me is dubious at best. The felt belief that judges are not all above the fray types is a result largely of reality.  I do think judges, though this is FAR from new, at times argue in a too pointed fashion, but Marshall did so too in a fashion.  Including in off Court writings.

Anonymous opinions -- I find doing away with any sort of dissenting opinion rather dubious -- might have limited value. But, to address the wider concerns, it seems not likely to do much.  It might even worsen the situation somewhat, since water wants an outlet.  If being a "celebrity" is the problem, there are various ways to do that and maybe address that instead.  Ethical rules would be a way to go there, for instance, and if we do not even label opinions, transparency there will be even worse. 

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The justices will hear some cases this week with somewhat interesting facts and you can read about them at SCOTUSBlog.  The  Supreme Court followed its sometime habit of dropping a grant on Friday while using the Order List today to do basic things.  Still has a few little things that make one go "huh."  What is this case under seal?  Why did Gorsuch and Roberts not take part in the consideration of one case each?  What are the rules for being allowed to file "out of time"?  I think the Supreme Court should have an "Order List Explainer" that will cover such basic things. Even normal legal coverage doesn't deal with this stuff.

Sexual Materials and Minors -- A Free Speech Special Category

Over the years, I have been somewhat more supportive of realizing that an absolutist take on freedoms is unrealistic. We have freedom of speech, not a regime where speech is not regulated.  The same applies to regulation of guns ("well-regulated") and we classify in various ways, so some sort of "arbitrary" or "invidious" discrimination rule must be in place.  Lines are not always clean, crisp or whatever and pointing this out along the margins (e.g., when debating affirmative action) is only a limited gotcha.  People speak in extremes, but it is at times often for effect. Deep down they know what I just said. 

We regulate expression lots of ways, including when children are involved.  Where are the lines here?  Touchy.  An early case in the modern era was Butler v. Michigan (1957), which said merely because something can corrupt minors does not mean it could be illegal. The freedom of speech of adults should not be set by the limits of what is appropriate for a child. A decade later, the Supreme Court did allow New York to have stricter rules when selling sexually explicit materials to minors.  And, the government can also limit what is broadcast on the radio or "free television" because minors can listen and watch.  Given 21st Century blocking technology and the realities of cable and satellite, this might be an outdated thing.  It was dubious in the 1970s that George Carlin's routine was blocked.  It has value; it isn't just porn or something.

As I have noted in the past, not a big fan of current obscenity laws for adults, which to me amount to content/viewpoint discrimination that seems to me to hit to the core of the First Amendment.  Certain types of sexual expression is deemed too tasteless and offensive. Offensive ideas, however, is not the sort of thing the First Amendment should allow to be banned.  You can regulate a lot of speech, including disclosure laws in businesses or campaign finance or time/place/manner regulations of various types. But, a basic thing here is not to censor viewpoint. A threat is not that -- you can express the basic idea in a way that is not an illegal assault.  Perjury etc. is also different.

But, we still have obscenity laws, though it's hard to know how often they really are enforced.  To toss it out there, in our country violence is treated differently, even though it is really a form of porn at times. Thus, the Supreme Court (in a ruling not blatantly obvious really) treated violent video games sold to children different from if you sold them a Playboy.  Such sexual puritanism leads to some problems such as teaching children sex education and other countries like France are more comfortable about children being familiar about sex and nudity.  So, certain French films, for instance, might have at least partial nudity of teenagers. We do have some photography with revealing poses and the like here, but even that has a few times gotten people in trouble.  We have teen sex flicks but the actors tend to be adults especially if there is anything acutely shown.

I am not aware of many Supreme Court cases that deal with use of children in sexually themed film.  Surely, there are various films such as those with Brooke Shields that have them.  The Supreme Court did protect virtual use of children in such materials.  So, cartoon teenagers having sex in non-obscene ways will be allowed.  Ditto simulations -- e.g., Romeo and Juliet having sex would involve a girl who is thirteen.  Showing an eighteen year old there having simulated sex would be protected unless it violated the in my view arbitrarily vague obscenity laws in place. 

But, use of actual minors can get you in trouble. Now, the basic concern here is child pornography, which involves children having sex in ways we basically would find abhorrent. It is child abuse and geared to a certain market of pedophiles.  We can target the specific acts but it is often hard to stop that, especially if it is produced overseas. So, a state or the federal government will target possession of the resulting materials.  Certain problems can arise regarding proof, excessive punishment and so forth. On a basic level, however, the material seems correctly illegal.  See, basically, New York v. Ferber, which held that this need not only involve the stricter rules in place for adult obscenity. 

That case involves "films are devoted almost exclusively to depicting young boys masturbating" and even the lawyer for Ferber appealed to overbreadth and alleged that if the prosecutors handled the case better that obscenity laws could have brought a conviction.  And, that is what concerns me there -- the law includes "simulated" sex.  Take Show Me Love, which is a foreign film about two teenage girls who fall in love. There is a quick scene where masturbation is simulated though it is hidden.  Simulated sex is a broad category.  So, basically Stevens concurred to say sure this stuff can be prosecuted, but was open to an as applied challenge for stuff that would not be appropriately targeted.  This might be an okay policy for child related material.

A later case involved photography by a reputable artist -- "10 color photographs of his partially nude and physically mature 14-year-old stepdaughter, L.S., who at the time was attending modeling school."  The law was later amended so only something with "lascivious intent" would be covered.  This allowed the core speech question to be avoided though three liberal justices made clear that to them mere nudity, even of minors, is protected speech.  Osborne v. Ohio cites a few photos of a male teen (maybe two) in sexual explicit positions, this time merely involving possession.  The partial dissent (Osborne won a procedural point) would have protected mere possession here like in Stanley v. Georgia.  The dissent, as in the past case, also was concerned about the law being overboard though again the law did not cover mere nudity.

Various cases over the years protected minors in matters involving sexual matters such as their access to contraceptives and abortion. Minors in various ways will be involved with sexual materials both as viewers and participants.  The proper line drawing here is tricky given it is valid to treat children differently given their lack of maturity and the possibility of abuse including lack of consent.  Nonetheless, an excessive policy here is not appropriate.  And, other concerns, including privacy of the home, should be weighed in the balance.  

Free speech is not absolute but exceptions should be treated carefully even when "taboos" are involved. 

Oh wait ... he's not the Jets QB any more ...

Jets QB came back from mono, beat Dallas and the Pats embarrassed him. Okay. So, you had the Jaguars and some scrubs. So far, so bad. Dolphins get their first win with an ex-Jets QB leading the way. Giants tomorrow night. A lot of youngsters and back-ups this week (one game had third stringers facing off with the game turning on a miss by an old kicker).

To toss if out there, we had Halloween, All Saints Day, All Souls Day, someone's birthday and will have Election Day on Tuesday. So, a mini-stream of event days. Back in the day, All Saints Day was a day of holy obligation, which for Catholics was church on a non-Sunday and maybe a day off. Guess it was a cool down day for hyped up Halloween kids too.

ETA: Nice Sunday Night game: Ravens dominated the Pats with multiple long drives and ending up winning by 17. Monday Night started well for Giants but ended First Half by giving up ten (three on a final turnover), kept it close for a while, but Dallas ending up winning big.

Sigh. So, we will hear about 2006 some more, right?

I gave blood again and continue to think for those able it is a great easy way to give back. I planned to give "double red," which involves processing red blood thru a machine but apparently (they didn't tell me why, which was wrong) there was some issue with the machine or something. Still, with one of those new bigger needles, it was quick and easy. My thinner veins or something at times give them trouble. While downtown, also took the fairly new 2nd Avenue Subway at 86th, though how far down you go, not sure you save much time.

I checked my phone and saw Carlos Beltran was chosen as the new Mets manager. I'm wary of his lack of experience though his NY experience and being the first Latinx (that's the term, right?) manager are pluses along with his leadership abilities. Key though to get him a good bench coach. Still, Bill Madden has a point. More wary than many fans; it comes off as another "flashy" move like last offseason. That was a mixed bag.

Impeachment Resolution

I attached an update to an earlier post regarding plans for the Senate Republicans to pass a resolution criticizing the House impeachment inquiry. But, a stand alone also is deserved since it is historical moment. The House passed (one former Republican voted for it; two Democrats against, one apparently since he thought it unnecessary) a resolution to provide procedural rules, above and beyond the ones in place, including for involvement of Trump's side with a carrot/stick included. This shit is getting real.

Friends Season 4

I'm watching and enjoying as a whole binge watching Friends DVDs while also watching some episodes on television. I think once Chandler/Monica are together (S5) the show really starts to decline and the old energy/charm really absent once they are married.

S4 brings Emily and has other good storylines like Chandler being in a box to make up for "cheating" on Joey by kissing Kathy. The Chandler/Kathy relationship as a whole however is not really given much attention and it ends rather badly (Chandler suspects Kathy is cheating on him with a fellow actor she has a sexy play with and then Kathy really does it; Janice gets more respect as an independent character). The DVDs have three commentaries but again not with the actors. Best scene might be the Jellyfish explanation.

Execution Watch: Ray Jefferson Cromartie (Alive)

Ruben Gutierrez's execution on 10/30 was held up by state courts. He has an innocence claim.

Ray Jefferson Cromartie also has an innocence claim and even chose not to seek clemency to help promote it.  The trial court earlier this month rejected a motion for DNA testing and set a period for him to be executed, the span perhaps in place to avoid last minute delays from running out the clock temporarily as happened once this year when the Supreme Court (covered in a past entry) failed to decide in time:

Georgia has issued a death warrant scheduling the execution of Ray Jefferson Cromartie for the seven-day period between October 30 and November 6. The trial court recently denied Cromartie’s motion to permit DNA testing of physical evidence in the case and issued the death warrant before he could obtain review of that ruling by the Georgia Supreme Court. Cromartie’s lawyers argue that the witnesses against Cromartie have recanted their testimony or had motive to lie and that DNA testing will show that he was not the shooter.

In "what about the victim" news, the victim's daughter supports the testing: “Today I learned that the State has set a date to execute Mr. Cromartie without doing any testing. This is wrong, and I hope that you will take action to make sure that the testing happens.” The usual "damn abolitionists don't give a shit about the victims" types will ignore this sort of thing, which arises in some cases.  Some families of the accused have members who do not want people executed.  Repeatedly, there is a split opinion.

Cromartie was found to have been involved in a robbery a few days before the one involved here, but the person shot survived. There is no clear videotape evidence he was the shooter, but the video shows someone who looks like him and other evidence is present including him bragging about it.  Such is also the case with the robbery/murder that led to him being sentenced to die.  The government argue that the DNA evidence he seeks would not be enough to get him off.  Part of the evidence includes testimony of two people involved, a driver and someone with him at the time of the shooting, both who served time and now have been released.

A few days before the execution is scheduled, we given the menu of his last meal: "steak, lobster, macaroni and cheese, cube steak, rice and gravy, steak and cheese sandwich, double cheeseburger, fries, side of ranch dressing, strawberry milkshake and layered cake with white."  Texas ended this practice back in 2011.  I recall someone wanted to donate it to the homeless or something. There is a certain triviality to it though also sort of a basic respect of the humanity of the person sentenced to die.

To check the boxes, the issue of extended time on death row arises here since he was convicted over twenty years ago.  As to the innocence claim, from what I can tell, it is weak.  I'm not sure why the DNA motion cannot be fulfilled all the same -- such evidence will often not be enough to determine things.  But, a broad degree of care should be provided to fulfill the appearance of due process. Ultimately, why should a basic robbery/homicide that does not appear to be particularly heinous warrant the death penalty?  The whole thing was a horrid waste (the two couldn't even open the cash register and stole beer) but violent crime tends to be. A long prison sentence fit the crime.

Oh well. I tweeted that he was scheduled to die today but then found out an hour earlier that his execution was stayed. The controversy is if the execution warrant was authorized given he had an appeal pending. The briefing is due next week and by then we might have another execution. One is scheduled next week in South Dakota, which also uses an open-ended warrant here that lasts a week. Sunday seems an curious day to execute so maybe it won't actually occur on my birthday.

This seems like something that will be handled so maybe this post will be cited, perhaps in passing if he is executed next year.

The Death of Democracy: Hitler's Rise to Power and the Downfall of the Weimer Republic

The dedication of this book as well as a comment in the comments at the back suggests this book has special meaning for our times. I wrote some notes and will not try to summarize its detailed argument. Here's a review. Goebbels saying, “We want to build a wall, a protective wall" is but one parallel. Hitler's assurance he knows better than informed people etc. does sound Trumpian. One notable thing is how the lack of fixed terms for chancellors was used to override democracy and promote corrupt conservative ends. Good read.

Rep. Katie Hill Resigns

The election of 2018 brought various new young voices into the House of Representatives, including Katherine Hill (31) in California. Her Wikipedia page highlights her early work to address homelessness.  The video suggests the intelligence she brought to Congress.  Her bright future was suggested by her appointment as vice chair of the Oversight Committee, an article quoting Rep. Cummings (RIP) among those who saw her potential.

Youth and drive also might bring hubris. It was reported today (there is always something coming out, some news reported online) that she announced her resignation after it coming out that she had an affair with a campaign aide.  There was also allegations that she had a relationship, now against ethics rules, which she denied, with a House staffer. A House ethics investigation, which she said she welcomed was opened.

There is also a titillating aspect to all of this.  Not only is she bisexual but pictures (including one of her nude brushing the aide's hair) were leaked and made available on various right wing outlets. [I won't link it, but I saw the hair photo, her nudity pixelated; it was taken while she was on vacation apparently. It not covered by the ethical rules and the holier than thou justification for posting it is dubious.]  The husband was is separated from probably had something to do with this (the three had a "throuple") and laws might have been broken. The revenge porn nature of this should not be ignored and the whole thing investigated properly.

It's a shame that a promising young public servant like this should have to resign, but it is also a result of improvements in dealing with ethical breaches that her supporters support.  There is a basic coercive aspect to having relationships with subordinate employees and the possibility of abuses is apparent.  Plus, there is a general appearance of impropriety.  It is even more so when you are singled out, even as a frosh member, to be a vice chair of the Oversight Committee.  Yes, it aggravating others who did more get away with it. But, this is seriously changing in recent days. And, yes, the people who will catch violators here will often be hypocrites who try to "get" people for partisan reasons. This doesn't mean we should handwave things, especially (see Al Franken) when the people's wrongdoing is broad enough to warrant strong responses.

A male in her position, at least a Democrat in that role with all the baggage involved, very well probably would be pushed to resign. It is somewhat troubling that she is resigning before the ethics investigation.  This is something of a trend and it closes off a full investigation of what has happened, which leaves open questions.  Is it really impossible for her to not resign her seat while she is investigated?  Is this really something that warrants resignation? There might be more (perhaps she did have an inappropriate relationship with a staffer that she lied about) we don't know about.  And, again, her special role might cause damage to the party if she does not resign.  I still would have liked the investigation to occur, in part to show the value and ability of such a process.  The alternative is lack of clarity.

Ultimately, it is her decision, and perhaps this will help immediately start a process (she is only 32) where she can move on and rehabilitate herself and be able to continue her public service. We also do have to be concerned about a double standard (women, bisexual) being involved though again I think a male in her position would have been at risk. A special concern here is the release of the photos, which also might have factored into her emotional state and overall ability to be able to stay in office.  Revenge porn and generally abusive use of photographs and personal data is a serious concern.  She can both be a victim and in the wrong here when deciding that the public good along with her own needs required her resignation.

I wish her well.  She is not merely a learning experience.

ETA: There are mixed reactions on her resignation. Some were like "who is she?"  Others thought it okay given it appears she did violate ethical rules or rules of good conduct.  Some of this class were wary and wanted to point out double standards and the revenge porn aspect. Allegedly, hundreds of photographs of her are out there. And, some were basically against it, thinking a double standard was in place. Maybe, even that it was just two consenting adults.

As shown, I think it is a mixture of things, and am wary about her resigning.  Resignations probably happen too much in these cases or at least we need some time to process things. I was glad the governor of Virginia didn't resign for decades old racist acts.  Something like this probably doesn't warrant it either though it's more borderline all things considered. And, a double standard and probably personal stress factors in. Finally, and in no way besides the point, the misuse of photographs and so forth (audio, for instance) can raise a lot of problems in this age.

That is my take with a bit more hindsight. 

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During the Astros/Nats game, Trump tweeted about some "big news." It turned out that a major ISIS leader was killed (or committed suicide to avoid capture).  This was formally announced by Trump (with some taunting and a lot of praise of Russia, since that is Trump) this morning.  The sort of serious military and intelligence stuff Trump badmouths when it suits are the people who did this.  The Kurds, who Trump recently screwed, helped too.

It would help if credible people led us at these times. The inability of Trump to do this sort of thing in a way that doesn't come off as moronic is bad enough.  But, the taunting can encourage martyrdom and retaliation (might happen anyway but didn't help).  The announcement could have worsened the situation. Plus, the killing of one leader likely was only so important.

This doesn't mean the whole thing wasn't net a good development long term. But, the nature of things makes it limited and the wider effort requires sound leadership.  We don't have it. 

Sports Update

Nats -- beat a pair of aces but lose to the 3/4 starters & then need to start a spot starter when your own ace is hurt? Meanwhile, Phils, not Mets, get the old Yanks manager for 2020. Jets/Giants both had a shot today; Jags/Lions might be "B" level, but were too much for them. Bills with a bit of a trap loss vs. Eagles. Sorta a blah football week.

ETA: Joe Ross did okay, but the Astros ace did better and Nats pen didn't help either. Oh, if we had a normal POTUS, he would have threw a first pitch at a Nats World Series home game. Or, the start of the season. We have an unfit occupant, who is booed and first pitch duties is given to someone is who is in effect a troll.

Early Voting

Early voting has came to NY and I today trekked (about fifteen minutes; the normal place is basically around the corner) to nearest location. Didn't have to, but why not? Forgot my new voting card which has a bar code that would have helped, but hey, let the poll worker get used to the new laptop sign-in system. No more book to sign. The worker sees your age and address so it serves as a mild unnecessary additional anti-fraud device.

Never got the idea we had much need for early voting in NYC, but it might help some. Rather it be like three days to deal with late developments. Anyway, races -- Bronx district attorney (primary was competitive in Queens), public advocate and a few lower level judges (no one knows anything about them; no choices this time anyway though you can write-in). Five ballot measures and each are not even single issues. Four are rather technical, one allows a delay during summer months for land use projects, which the NYT thought deserved a "no." The most important is a ranked vote proposal, which applies to city races but not DA.

Said "yes," wrote in a judge to protest and so on. Got my sticker and "early voter" armband.

Impeachment Inquiry Update: Senate Republicans Plan To Be Pathetic Assholes

Update: As was probably expected, a formal impeachment inquiry rules resolution has been crafted (summary) and rules for involvement of Trump's lawyers also were later crafted.  

Per one summary, on the day the rules resolution was passed with two Democrats (not Tulsi Gabbard) voting against and no Republican (a few didn't vote; two had family issues, one is on National Guard duty) voted for: "Trump’s counsel will be allowed to participate in the Judiciary Committee’s phase of the process by receiving evidence and staff reports, questioning witnesses, submitting additional evidence and being invited to offer a concluding presentation."

It won't surprise that the Republicans are not satisfied, in part because they aren't really fighting on neutral procedural grounds.  Since prudentially, the Democrats are going to want to make things look fair, we don't even have to rest on their general sense of fairness here.  This is so even if the rules require majority approval for various things like subpoenas, something basically a check on abuse. Things march on.

Living thru history is a mixed bag. Twenty years ago, Clinton was impeached.  There was a sort of unreality about the whole thing.  Unlike some, I don't "nothing was there" or anything.  It wasn't merely "lying about a bj."  In the #MeToo Generation, Bill Clinton's actions as governor and president were troubling, and interfering with an ongoing civil lawsuit alleged sexual wrongdoing would be rather frowned upon.  I don't think they went to the level of impeachment, but at the time also didn't like the assumption nothing was there. Still, the stakes were all rather low.

Things are a bit more serious now regarding Trump's actions, which has more of a Nixon cast given the "ratfucking" implications for at least one election (Biden is running for 2020, so the whole Ukraine matter affects that too), this time with special international aspects. There are also other more local, shall we say, problems though even there -- the emoluments issue -- it often includes international actors.  Also, there are various acts of obstruction of Congress and justice.  Again, more serious than Clinton's misstatements (perhaps perjury) and obstructions.

I have long felt an impeachment inquiry was warranted, but we are getting in "this is serious" mode. There is an assumption now an impeachment trial is going to happen.  We are now in impeachment inquiry mode though there was no formal House-wide vote to do so.  One is not necessary.  The process includes taking testimony, including in secure locations as needed, with members of both parties of the relevent committees present.  One person, and really think this should be more well known, is Mike Pence's brother.  This is comparable to a criminal investigation, one in which the criminal target does not have (during the investigation) equal rights to cross examine or anything as occurs later on, especially during the trial.

The impeachment inquiry is not the same as with the Clinton impeachment. The basic difference is that there was an independent counsel investigation (Starr) and his findings was released to the House of Representatives. The old law was allowed to lapse though so we are under a different dynamic now. There was a special counsel investigation under Robert Mueller, and while that went on, the people investigated had rights and lawyers and so on.  This restrained the investigation in various respects.  Now, we are having an investigation of the Ukraine matter too.  Likewise, other things such as Trump's taxes are being investigated by relevant committees.

Nothing special is going on here.  There is no injustice that I can see or violation of due process. Trump is repeatedly blocking the process, including by broad claims of executive privilege that is the subject of ongoing litigation.  I summarize some findings of a recent district court opinion on release of some grand jury materials being held up in this thread on the resolution I will get to momentarily.  It also continues my stance that one person (Dilan) has a simplistic view of what "political" means in the context of impeachments.  From the beginning -- see, e.g., The Federalist Papers -- the process is phrased in legalistic terms.  The House is a sort of "grand inquest" and the Senate is a sort of "trial." 

In the 1990s, judge removed by impeachment argued that the rules in place where a fact finding panel was used by the Senate violated its  constitutional duty to "try" impeachments.  Walter Nixon v. U.S. held that this was a political question, not one the courts will get involved in respecting the proper rules. Three justices would have left open some extreme case (such as a coin toss), but the end result was mostly the same.  The grand jury materials case shows that this does not necessarily mean that any impeachment related topic will avoid court review.  There will be legal and constitutional issues that possibly will arise.  One example might involve the rights of a witness or materials demanded from them.

Trump appears to be abusing the process all the same.  My leaving open some room for review is a good idea in general since in practice absolutism falls apart upon scrutiny.  But, generally speaking, the House does have "sole" power over impeachments and the Senate has such power regarding trials.  This brings forth a broad grant of authority. Claims of executive privilege should not interfere with this process; we are at a point where a possible witness is going to court to get a holding he can do so.  This was actually a count against Richard Nixon ("has failed without lawful cause or excuse to produce papers and things as directed by duly authorized subpoenas").  Years of litigation can run out the clock.

Republicans, with no grounds to challenge the merits, have cried foul about the process.  Fifty so far reportedly (Mitt Romney, Susan Collins, and Lisa M. of Alaska have not signed on yet)  have agreed to a Senate resolution that criticizes the process of the House investigation.  This is an appalling move on their part to dishonor the role and independence of a coequal house of Congress. Lindsey Graham, self-designated Trump bootlicker and Chairman of the Judiciary Committee (and House manager in the Clinton impeachment), is leading the effort.  Such a f-ing asshole.

• calls on the House of Representatives, prior to proceeding any further with its impeachment investigation into President Trump, to vote to initiate a formal impeachment inquiry;
• calls on the House of Representatives to provide President Trump, like every other American, with due process, to include the ability to confront his accusers, call witnesses on his behalf, and have a basic understanding of the accusations against him that would form any basis for impeachment; and
• calls on the House of Representatives to provide members of the minority with the ability to participate fully in all proceedings and have equal authority to issue subpoenas and other compulsory process.

This is all bullshit.  There is no obligation for the HOR to vote as a body to initiate a formal impeachment inquiry.  The investigations going on now are following rules last put in place by the Republican led HOR.  Republicans of three committees are involved.  It is not merely a Democratic led process. Republicans, including MIKE PENCE'S FUCKING BROTHER, are involved there to represent his interests.  Members of the minority are participating.  Every member doesn't have some right or need to be "fully" involved.  That isn't how Congress works. It delegates things to committees.  There is also not some "equal" right to issue subpoenas and so forth.  Elections have consequences.

Trump's "due process" also is not being violated. The blog link I cited includes someone who challenges the very idea since the whole process is "political."  But, that is an extreme way to phrase it; anyway, even he agrees that the structure provides certain procedural checks such as a supermajority vote to remove that in practice will require members of both parties to in some fashion agree. (This is less a factor in judicial impeachments though might be in special cases.)   In practice, the process provides a general fairness.  A lot of it has been in the open, the media has covered it, members of both parties are in the room, Trump has repeatedly asserted privilege and fought things out in court, rules are in place and Trump by the nature of his office has a lot of power.

To the degree there is some "due process" warranted, it has been supplied. The problem is not the concern (see also, Kavanaugh, Franken etc.) necessarily, but treating that term as if everything is akin to a criminal trial. Not that many of these people care too much about the rights of the average criminal defendant.  And, here, more is being sought than even present there. It is during the impeachment trial where full confrontation of accusers etc. will occur.  A potential criminal defendant does not get to confront accusers during the investigation stage.  Concern about the full nature of the accusations also occurs at a preliminary hearing.  Trump was not "arrested" or something.   If impeachment occurs, eventually, there will be a crafting of impeachment counts as a result of this investigation.

The particulars of the resolution can be challenged easily enough but the basic function is to suggest the process is unfair.  This taints the pool and to some degree serves as a "baby blanket" or some such thing (per one analysis I heard) for Trump to show Senate Republicans are being loyal.  The head of that thread I referenced argued that the basic resolution is unconstitutional since it interferes with the Senate's duty to not taint its trial responsibility.  Find that dubious, but the mindset is correct. It isn't quite as bad, given its symbolic nature, as blocking Garland.  Still, it is a violation of its basic responsibilities. 

This is a variety of things, including pathetic.  I had hoped that more than three (can a resolution be filibustered? will the holdouts force them to use Pence, which sort of seems bad?)  senators would at the very least let the House of Representatives do its constitutional duty.  Someone like Susan Collins running for re-election and needing campaign funds being a tool is somewhat expected (so, I would not be shocked if she folds).  Various Republicans can whine all they want (it's what they do), but this is a formal statement (which they have the raw power to do).

A few can convince themselves it is merely a message on procedure, but it is based on b.s.  The message is not merely that maybe there is something there Trump did wrong, but can we just do things more fairly?  It is that there is nothing there and the Democrats are left to being unfair.  One Republican commenter spoke of some unfair predetermined vote in favor of impeachment.  He was a bit less rabid than the usual bunch but had the same basic mentality.  If you do not agree with clear evidence, that's on you, it is not the fault of those who (for months now, years regarding the Mueller investigation) are setting forth the case.

This resolution is an example of how the Republicans have totally lost its way in the Age of Trump.  We need a new second party.

SCOTUS Watch: Order Day

After holding oral argument for some major cases and granting another, the Supreme Court will go on a bit of a break after today's orders (two executions scheduled at end of month). Note the next conference is 11/1. Nothing that notable.

As usual, a few interesting things. For some reason, it is taking time to dispose of all the partisan gerrymandering cases after June's holding they are non-justiciable. In a case Roberts didn't take part in, Thomas/Gorsuch tossed in a statement flagging their strong conservative federalist sentiments. And, an anti-censorship group submitting a brief flagged an interesting case not taken for review (the facts make "Judge Dick" being involved amusing).

ETA: There were also later orders that didn't agree to hold up an environmental lawsuit and of all people appointed Paul Clement to defend the constitutionality of the consumer financial bureau, which is weird, since the guy never argues the right side (I exaggerate only slightly).

The Sweetest Thing (Title Drop in Club Scene)

This pops up on television now and then & my general thought was that I wish it was better. A film largely about two women friends (Selma Blair is a butt monkey sort in some key joke set-ups, but the other two's road trip is the center of the film) acting badly years before that was more of a thing, plus Christiana Applegate? Count me in. But, the scenes are repeatedly framed in an amateurish fashion. Watching the whole thing, it is decent, but still hold to that. The commentary didn't really interest me. Plus, the film deep down is a tad conservative including the felt need to give them "happy endings." They are almost 30!

NFL Sunday -- Got to Laugh Edition

Jets play [horribly] Pretty Boy tomorrow but the Giants played the Cardinals today.

Cards were up 17-0 early but then it was 17-14 (blocked punt recovered in the end zone, helped by the Cards QB making a mistake). Giants repeatedly gave the Cards the ball. But, it was only a three point game as the two minute warning (two time outs) approached. Cards offense cautious. Deep in their own territory, the Giants go for it on 4th Down. 4th and 15. Uh okay. Seemed logical to punt, the Giants offense not likely to make that while the Cards offense wasn't great either. The head coach added to the flaw team's problems. Giants lose.

Growing pains. Various flawed teams. The Chargers/Titans game shows this. Each were 2-4, the Chargers more spotty than usual. The Titans was flawed enough that it looked like the Chargers would win. The Titans not being able to make 4th and a foot (if that; a missed extra point didn't help) looked like it would doom them. Um no. In surely the most amusing ending of the day, involving THREE goal line replays (two times overturning touchdown calls), somehow, the Chargers finally fumbled at the goal line. Titans win.

Trapped in the R.A.W.

Another good library find. A woman is trapped inside a library as an alien invasion takes place, but in the process is also one of the few survivors. Serious stuff. The first part is her journal of her experiences trapped there for around fifty days. Then, we get appendixes ("written" by various people) in the future once the journal is found and we get some further information, including "where are they now" material. Author has an interesting resume.

ETA: The Yanks stretched it to a Game 6 by scoring off Verlander in the first (and nothing else) and it was a bullpen game both ways. Yanks tied it 4-4 in the 9th, but their closer gave up a two run homer too and lost 6-4. The as expected Nats/Astros World Series.

Barr: Takes Break From Being Trump's Lawyer to Be His Minister

This promotion of a Secretary of State Pompeo speech on being a Christian leader was recently front page of the U.S. government's SOS website home page.  Not merely a person making a speech with religious themes while the person also had a government job.  Likewise, it is in no way a one-off for him, who seems to be up there as Pence's favorite Cabinet member.

Still, this just shows that the speech is shall we say "on brand."  The Attorney General of the United States has a brand too, but it is more as Trump's personal lawyer, a sort of consigiliere role.  Therefore, at least me personally, it seemed surprising that he had such a prominent speech on religion at Notre Dame. Again, it is not a problem that he talked about religion and its importance.  It is not even really a problem (though we can strongly disagree) his overall lines between church and state are misplaced. (Well, somewhat so, given his role.) His blatant sectarianism is problematic.  Plus, the hard to take preaching given his boss.

We have two different takes -- first, from an evangelistic history professor who is a strong critic of Trump and "court evangelicals."  John Fea leads with saying he agrees with a lot of the speech, but does flag some issues (e.g., it does seem focused on Christianity, even though it is putatively about religion and religious freedom in general).  His last bullet point also flags how "rich" some of the remarks about our responsibilities and "restraining individual rapacity" with a shutout to the House of Representatives as doing this a lot better than his boss.  He also challenges Barr on public schools and other matters.  It's a good summary.

It's not surprising that a secular coalition would find the speech bad though not challenging his right to have personal religious beliefs. The statement is basically a criticism of his bias and misstatements. Barr's general remarks on the importance of religious freedom is basically benign on the bland level.  An early red flag is a reference to James Madison on the importance of religion.  That's fine but oh you better also note that he had a strong view on the separation of church and state. The stuff about the need of a restraint outside of government and all that.  

A major sticking point is what exactly "religion" entails.  He sees things through a Judeo-Christian (emphasis on the latter; few Jews here in the beginning) prism:

First, it gives us the right rules to live by. The Founding generation were Christians. They believed that the Judeo-Christian moral system corresponds to the true nature of man. Those moral precepts start with the two great commandments – to Love God with your whole heart, soul, and mind; and to Love Thy Neighbor as Thyself.

But they also include the guidance of natural law – a real, transcendent moral order which flows from God’s eternal law – the divine wisdom by which the whole of creation is ordered. The eternal law is impressed upon, and reflected in, all created things.

The Founding generation included many non-Christians, especially if that term is not broadly defined (as many seem to wish) to mean supporting general moral values that are not tied to the "Christian" beliefs of the audience.  Thomas Jefferson honored Jesus (not "Christ") as a great moral teacher, but thought much "Christian" beliefs b.s. There was a general belief in natural law though there still is on some level.  People do not need to believe in God to think that human happiness requires a basic set of rules and justice that grow out of our general nature.

Modern secularists dismiss this idea of morality as other-worldly superstition imposed by a kill-joy clergy. In fact, Judeo-Christian moral standards are the ultimate utilitarian rules for human conduct.

People like Thomas Jefferson had no love for clergy. Also, modern secularists (a vague term -- clearly it does not mean here merely those with strong view on separation of church and state) again don't dismiss the importance of morality overall.  They regularly are strongly moral people who feel they have a special obligation in life to be good and are a lot less immoral than many like the people he works for and defends regularly.  They do not merely wish the government to restrain us though all talk of individual liberty is rich coming from someone whose party wishes to take individual liberty (such as involving abortion choice) away.

The speech rails against the modern age (nodding, as one must, to struggles we had in the 20th Century, but let's focus on the horrors of our secular age, not the past with more religion but a helluva lot of problems).  There is the usual feelings of victimhood and so forth:

These instruments are used not only to affirmatively promote secular orthodoxy, but also drown out and silence opposing voices, and to attack viciously and hold up to ridicule any dissenters.

Yes, where oh where will we hear about these points of view that are expressed by those that now control the Senate, White House, a majority of state legislatures and are still a significant voice in the House of Representatives?  That is even using the stereotype of Democrats as secularists.  It was noted, e.g., that Nancy Pelosi used a lot of religious language in recent remarks.  Likewise, multiple Democratic candidates for President regularly do as well.  Put aside the b.s. about blaming secularism on modern ills  or simplistic ignorance on the complexity of the beliefs of those (who easily could be a quarter of the population in some fashion) who disagree that "Judeo-Christian" morality (whatever that is -- Jesus' redmeption of humanity on the cross, e.g., doesn't seem to me to have much to do with anti-homosexual beliefs) is the way to go.

A taste of the sort of thing that bothers me -- it's not the argument that religion is a necessary part of human happiness:

So the reaction to growing illegitimacy is not sexual responsibility, but abortion.
The reaction to drug addiction is safe injection sites.
The solution to the breakdown of the family is for the State to set itself up as the ersatz husband for single mothers and the ersatz father to their children.
The call comes for more and more social programs to deal with the wreckage. While we think we are solving problems, we are underwriting them.

This is crap.  Serious crap.  The reaction to growing illegitimacy is concern for the complexities involved, not limited to changes in society (hint: it didn't turn on secularism) that threatened family integrity. Not that family life was all Leave It To Beaver back in the day either.  Plus, to the degree this includes not just reproductive choice based on individual morality (freedom of religion is great) but governmental involvement such as health care and so forth?  Nothing new here.  The push for national health care goes back to at least the 1940s.  The government also was always involved in some fashion here. But, it was never just that.

The reaction to drug addiction? Likewise a range of things, including personal in nature that involves a range of approaches. Not that safe injection sites are a bad thing.  They very well can be good social policy. He just tosses it out there as a potshot.  The fear "the State" will take over the family is also moronic.  First, again, the government in the past quite often intruded in family life.  Second, things like a broader definition of what a family includes (such as same sex parents) is a common thing here.  The people don't want the government as the parents.  And, for the 100th time, your party aren't a bunch of libertarians!  Your party in lots of ways intrude in our lives, if in conservative ways.

Plus, there is nothing specifically "secular" about those who have a more socialistic (not a bad word) view of how government should work. Loads of people here believe in Jesus Christ or some other religious belief.  It is b.s. to say otherwise.  These issues are too important for us to be preached crap by someone who is defending an immoral menace.  I'll toss in a favorite example of mine.  PPACA, which their party threatens daily, is in place to better protect our health and well being. In the process, it better allows people -- not forced to choose out of want -- to live their lives pursuant to their religious values.  Hard as it is to some (I saw this) to believe, this very well can include contraceptives.  Universal health care might allow businesses, e.g., to be less involved. Are they for that?

The speech is not geared to a neutral defense of religion -- again this blog repeatedly explains this term is quite open-ended -- but a certain set of religious beliefs.  The silent parts are said aloud. "Moral relativism" is seen as a threat, which is a tad different from religious liberty:

First, either through legislation but more frequently through judicial interpretation, secularists have been continually seeking to eliminate laws that reflect traditional moral norms.

What "tradition" moral norms?  The "watershed" here was of course Roe v. Wade.  Why not the contraceptives ruling?  Abortion has been performed throughout our history. At any rate, religions have a range of beliefs on its morality and it in no way is merely some secular act to allow individuals to use that, not the selective force of the state (the horror), to make choices here. The state is not there to force us to do that, right?  Natural laws, to the extent that is a thing, don't go by the wayside because of limited government. He seems to want his cake and to eat it too.

More recently, we have seen the law used aggressively to force religious people and entities to subscribe to practices and policies that are antithetical to their faith.

The problem is not that religion is being forced on others. The problem is that irreligion and secular values are being forced on people of faith.

The proper balance of religious liberty and the state did not suddenly "recently" (some fictional golden age is common here).  Many "traditional" moral norms were in fact largely a result of certain religious beliefs dominating.  Public schools were used (well used more) to promote Protestant values. This would seem relevant given the location of his speech.  Secular values are always going to be present in some fashion, since we live in a society with laws.  Laws that do not establish religion.  Nonetheless, this still doesn't mean that irreligion is being "forced" on people.  Requiring equal access in public accommodations is not that. Unless that is code for something else.

Accommodations also are made.  They always have been. The range of religions and nature tendency to favor the majority here complicates this.  The result repeatedly was to favor certain religions, not secularism.  RFRA is referenced.  Yes, some things are recent.  Why?  Well, one reason is that pre-RFRA, the rules on required accommodations are stricter than they once were.  The Hobby Lobby dissent could appeal to multiple decades long precedents. The majority argued RFRA expanded the reach of accommodations.  And, in that case, employees with different religious beliefs were burdened.  What of their beliefs? 

The speech complains about public schools that pass teaching requirements about LGBT curriculum that clashes with the beliefs of some people. Lots of Christians strongly support such things.  Religious liberty now is threatened by public schools teaching things that promote equality because it clashes with certain religious beliefs.  What beliefs matter here? Can parents opt out of evolution classes?  Those that honor feminist principles they disagree with or why not racial equality?  Public schools promote certain values and they do clash with certain beliefs. There is an option here to go to private schools.  It is not a threat to religious liberty as properly applied in our system.

Barr also opposes states that choose not to use public funds toward parochial education. This is a longstanding strand of public policy and well supported by his pal James Madison.  It is not a threat to religious liberty to avoid using our money to promote religious beliefs we do not believe. At the very least, it 's a tricky issue.  Arguments can be used in both directions and it is not "secularist" necessarily to be on either side. James Madison thought funding of religious institutions would threaten religion.

If Catholics want to promote Catholic doctrine, they have every right to do so.  They are limited when they mix with the public sector to some degree. They, for instance, cannot deny minimum wages to their employees. If a janitor at a church wants to use their wages for non-Catholic reasons they can.  They also have the right to pick and choose their ministers and educators.  The lines here are open to some debate.

A third kind of assault on religious freedom in education have been recent efforts to use state laws to force religious schools to adhere to secular orthodoxy. For example, right here in Indiana, a teacher sued the Catholic Archbishop of Indianapolis for directing the Catholic schools within his diocese that they could not employ teachers in same-sex marriages because the example of those same-sex marriages would undermine the schools’ teaching on the Catholic view of marriage and complementarity between the sexes.

It is not "secular orthodoxy" to determine that employment laws require some degree of non-discrimination.  Someone running for POTUS who seems to want us to think him Latino by using the nickname "Beto" (okay; this just annoys me) tossed in an answer at a GLBTQ forum that he thinks that "churches" can be denied tax exemptions for not supporting same sex marriages.  Going that far is dubious though I'm not sure if a neutral tax exemption law (which would not just focus on one view on that subject but perhaps have a general equality string) would actually be unconstitutional.

(The lines to draw regarding other religious institutions can be tricky like when denying religious colleges who opposed racial mixing was upheld. Another issue would be allowing Catholic adoption groups, e.g., to be included in a state system even though they discriminate.  This is a touchy issue that has some emotional salience since needy children seem to be harmed.  But, again, what are the limits there?  Should the state welcome adoption groups that are racist?  "Traditional" values would have once upon a time thought that fine too.  Anyway, if the speech tossed in such perhaps harder cases in among a generally fair speech, fine enough, but it did not.) 

But, even in this scenario, the choir master or whatever still has to teach Catholic doctrine when required.  If the lawsuit should fail (and why the feds should interject in a local dispute is unclear), fine, but even there his remarks go too far.  Overall, religious liberty is great, but when he says:

I can assure you that, as long as I am Attorney General, the Department of Justice will be at the forefront of this effort, ready to fight for the most cherished of our liberties: the freedom to live according to our faith.

does he only mean "our" faith?

Supreme Court Watch

Update: Friday afternoon brought news the Supreme Court will hear a few more hot button cases, including the power of the executive to remove the head of Elizabeth Warren's baby (Consumer Financial Protection Bureau).  The two immigration cases raises the typical Roberts Courts scenario of Gorsuch perhaps voting with the liberals (sorry to use that word, folksy, know you don't like to put justices in boxes). 

Monday was a holiday so Tuesday was the first day of oral arguments and was an order day.  The order list was the usual stuff of little note with some interesting cases mixed in (lots of cases are not certworthy) and things like filing under seal and such that I wish there was an Explainer to clarify. Since dissent from denial and not taking a case requested by the government is of at least a bit note, here's a summary:

The justices also denied the federal government’s petition for review in a dispute over lawyers’ fees in a case filed by a Stanford University graduate student who was inadvertently placed on the Transportation Security Administration’s “no fly” list. The U.S. Court of Appeals for the 9th Circuit ruled the district court was wrong to find that the federal government had not acted in bad faith, and now that ruling will stand. Justice Samuel Alito indicated that he would have granted the petition, while Justice Elena Kagan was recused from the case.

Religion Clause Blog flagged a denial involving a high school lesson involving Islam.  A student did not want to take part in a lesson plan (including writing answers on a worksheet) with material (including two words of Islamic doctrine) she did not accept.  This would be an open-ended opt-out for those who oppose ideological content that they don't accept.  There is also a bit about Muslims having stronger faith on average than Christians, a dubious statement of fact, but not something that raises First Amendment concerns.  It does show that teaching religion warrants special care and not sure how that line staid in there to cause problems.

Near the end of the order list, we see that Chief Justice Roberts did not take part in a case against him and others ("et. al.").  Doing a docket search via the docket number, it turns out to be against Roberts and Trump, "President" (scare quotes in original) making a one person, one vote argument against his electoral college win.  Roberts was included since he allegedly wrongly swore him in. The petition, which again doing a search seems to be a result of an actual lawyer, is quite a read. Let's say it includes some personal beliefs on Trump himself.

Though the solicitor general did waive a reply, this thing went thru two levels of federal court review as shown by the "appendix" with a lot of material.  On some level, this is a waste of federal court resources though it probably a bad idea to sanction him for it.  It is on another level ... well fun ... to read the stuff and argue that hey equal protection concerns (which after all are based on amendments that come after Art. II and even the 12A that set up the Electoral College) do arise here.  I won't go into his treaty claims (admit not reading his explanation).

===

The major set of cases this week involved an appointments dispute arising in Puerto Rico that in monetary terms can involve billions (really?) of dollars.  A trivia point is the number of current or previous federal solicitor generals (three) involved in the argument.  The nuances of the issue are important though I won't try to parse them here. This is one of those major cases of national import that do warrant Supreme Court review more than the average case.  It is also one of those situations where a single national holding is important on some level above and beyond exact what it is.

The preview helps clarify that the case partially turns on if this is merely a local matter (Puerto Rico) so perhaps they are not "officers of the U.S." that require Senate confirmation.  OTOH, there is a doctrine in place that could prudentially accept the holding of the board in question anyways. The fact Puerto Rico is a territory [which popped up in the non-unanimous jury case since it has them] also is relevant though when the lawyer for the employees (the one non-S.G.) brought up the Insular Cases (which treats them differently), particularly for them to be overruled, the justices seemed to think they were irrelevant:

Further evidence that Congress does not need to comply with the appointments clause, they say, can be found in the territory clause of the Constitution, which gives Congress “full and complete legislative authority over the people of the Territories and all the departments of the territorial governments.” And historically, they add, Congress has not always complied with the appointments clause when selecting officers for U.S. territories.

By chance, Kansas has another case up for oral argument in the second week.  It involves if a state law against identity theft and such involving citizenship  data is pre-empted by federal law. An important question of local discretion.*  The final case (I'll skip some statutory case few care about) involves the reach of a pre-Trump Court case (decided 5-4 though a later case regarding applying it was 6-3 with Roberts in the majority) the blocks mandatory life with parole for minors even in homicide cases.

The case will help clarify how the new membership will deal with the old precedent.  It also has special cachet since it involves the D.C. sniper. The chance he personally will ever see the light of day is dubious, but the decision will affect various others in prison.  One issue in the case is the artificial nature of addressing a case that occurred years before the Supreme Court decided this issue. As often occurs, it also has nuanced technical questions.  But, the bottom line for me is that it makes sense to merely give a person in this situation a chance to argue that they are not so hopeless to warrant again merely the hope of parole.  And, at set periods -- you know like Charles Manson had -- have parole hearings that the body in question can simply use to deny him parole.

I was online when the sniper attacks occurred and one person over at Slate reminded me of the special fear involved at that time when going out in a certain broad area put you at risk at being shot by a sniper rifle.  I'm glad I was not doing my year of execution posts the year that John Allen Muhammed was executed.  Problems could have been cited and were by three justices at the time. People have mitigated Malvo's guilt to some degree, but don't know how far you can go there for the ten deaths and other people wounded here.  But, simply put, if he is out in forty years or so, would it really not be fair justice?  Still, that isn't even the point here. It is the chance for him to argue he warrants parole at some point.

The breadth of the original ruling was fought over by Alito and Sotomayor particularly in certain orders since the ruling and this one might clarify that. And, this too is function of the Supreme Court, even if we might not like the end result.  I do feel compelled, though others might say we need to accept reality bad as it might be (there is a basic legal concept there too), to flag that two people on this Court -- including Kavanaugh who appears a possible swing guy in the Kennedy role -- are tainted.  This is the first full term (Kavanaugh coming on a bit late in 2018) with both of them and there are signs it will be when the new court "truly arrives" so to speak.

I continue to find the whole body tainted.

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* Gorsuch in an earlier case jumped in to make a joke of sorts when the government said such and such was an easy call before the person's opening time was up. So, it wasn't the first breach (as suggested by one article), but Sotomayor did interject (corrected by Roberts) here before a person was done to start to ask a question. Old habits die hard.