About Me

My photo
This blog is the work of an educated civilian, not of an expert in the fields discussed.

Friday, October 20, 2023

SCOTUS Watch

Ethics 

I know the drill. The “all nine justices are very committed to the highest standards of ethical conduct" bit is the standard "we are all pals working hard for the public" line. But, it is a bit much since we are not morons.

If we are keeping track, it seems like Roberts, Kavanaugh, Barrett, and Kagan now have openly supported -- in some fashion -- a formal ethics code that applies to the Supreme Court. 

Kagan is the only one (to my knowledge) who openly granted Congress some role in regulation. I did not listen to her full answer but the reporting suggested it was a general comment. This is overall appropriate but it doesn't tell one much.  

A person who wants to be optimistic here would appreciate Justice Barrett's general support. I personally do not trust the Supreme Court itself to self-regulate. That is not the constitutional system we have. We have checks and balances. Congress has some role in regulating the "good behavior" of federal judges. That is the test. It is not just "life tenure."

Roberts wrote a letter to the Senate saying it was a threat to the separation of powers to voluntarily show up in front of the Senate Judiciary Committee. Justices have repeatedly shown up in front of Congress. The best approach would be to have a liberal/conservative justice show up. 

Anyway, John Roberts won't save us. I thought the Senate was supposed to have a vote on its SCOTUS ethics bill when it came back for the summer. 

Orders 

We had some notable developments in cases worth watching.

[1] Ghost Guns

SCOTUS, without any comment, granted the federal government's request to lift a stay and allowed it to enforce a regulation involving "ghost guns." Amy Howe has the details, which involve specific companies. 

[2] Racial Discriminatory Districting

After the Supreme Court somewhat surprisingly determined rules against racial discriminatory districting have some teeth, there were various districts involved (including the one involved in the case itself) to address.  

The justices (with Justice Jackson with a brief statement) denied a stay to a Fifth Circuit ruling holding up a re-districting case. The order (not explained) is only found on the "Opinions Related To Orders" page.  

Amy Howe discussed it and summarized Jackson's statement:

Justice Ketanji Brown Jackson agreed with the court’s decision not to put the 5th Circuit’s ruling on hold, but she wrote separately (although alone) to stress that the Supreme Court’s decision not to step in was not an endorsement of the appeal court's order, and that the litigation should be resolved in time for the 2024 elections.

[3] More Guns 

On Friday, also on the opinion related to orders page, a request to stop a district court opinion blocking a Missouri "Second Amendment Preservation Act" was denied. The page now cites "BK" in the justice column (Kavanaugh) which seems wrong since that is who wrote something. The case was handled by Kavanaugh; he wrote nothing. 

Thomas without comment said he would grant the stay. The law purports to block federal laws invading the Second Amendment. Gorsuch with Alito dropped a brief statement, with a charming reference to the case letting Texas' SB8 abortion ban law (pre-Dobbs) stay in place.  

[4] Biden Social Media 

After four o'clock in the afternoon, perhaps after the justices kept track of the news that (after three votes where he got less and less support), Jim Jordan was out of the Speaker of the House race, we had more news.

This is a convoluted case with various ups and downs involving stays and so on. But, the basic point was that the district court (restrained somewhat by the Fifth Circuit) interfered with the Biden Administation's efforts to stop false information from being spread on social media. 

The justices took the case for full argument. Alito with Thomas and Gorsuch publicly dissented. Alito partially complains that the unexplained stay violated standard rules, including not showing a compelling need. He's not consistent here though he might be taken more seriously if he was.

But, the dissent also clearly frames things in a way that assumes the conspiracy theory against the government is accurate:

At this time in the history of our country, what the Court has done, I fear, will be seen by some as giving the Government a green light to use heavy-handed tactics to skew the presentation of views on the medium that increasingly dominates the dissemination of news. That is most unfortunate.  

Most unfortunate. Your neutral concern is touching. A major issue here is not only that it is far from clear that the government did anything wrong. The decision below amounts to a prior restraint on the government. The balance of equities, and sure, explain it, seems pretty clear there.  

[Okay. This time the order is dated on the chart "10/23." Someone is having a case of the Fridays.]  

Congress

While the House of Representatives was without a speaker, the Senate operated normally. They went back to confirming judges. Also, Dianne Feinstein's committee slots, including on the Judiciary Committee (her replacement took her spot there), were re-filled without controversy. 

There was a fear that Republicans would block it, helped by the fact they refused to allow a temporary replacement when she was out. But, that is not the same thing, and Republican senators have their seats become vacant too. There really was not much of a likelihood they would have denied a new senator their equal rights as a senator. It would be institutionally extreme in a way that individual senators would find troublesome.  

Sen. Butler, who like Stephen Colbert is out with COVID, has announced she will not run for re-election in 2024. That was a prime reason another possible placeholder, a black woman congressman in her 70s, was not chosen for the position. Good luck holding the fort. 

Term Limits

Sen. Sheldon Whitehouse has been strongly critical of the Supreme Court and has brought receipts. I am not gung ho, however, of his support (with some other good senators) of a term limit bill. It's obviously merely symbolic now. So, since I support them overall, it is okay. 

Nonetheless, I would focus on ethics, including Steve Vladeck's suggestion (in a paywalled One First) of some sort of inspector general, who (which) would provide oversight with teeth (what this could entail would be open to debate). The summary connects the bill with ethics, but I think it is a bit of a reach. I think it takes the eye off the main ball.

Any benefit would be long in coming, this bunch will be here for a long time. What would have a more immediate effect? A term limit bill with court expansion, the latter part not constitutionally problematic. This brings to mind the FDR expansion bill (I'm about to read a book by Robert Jackson, which discusses it) that tied it to those justices over 70. If there was no justice over seventy, there were no justices added. It in that fashion was a means to encourage a seventy-year-old retirement age. 

The argument that court expansion won't happen at this time is no less convincing here than for any other piece of legislation that looks to the future. The term limit bill is definitely not going to happen though there is a lot of public support. It also has the added constitutional problem ("for good behavior"). So, why not combine the two?

I am willing to accept the timing since Sen. Whitehouse is not suddenly not going after the Supreme Court on ethics. I do support term limits as constitutional policy. The blurb in the summary that the Supreme Court was supposed to merely "administrative" originally is somewhat dubious and besides the point (things change as the government grows). However, overall, I think something like an eighteen-year term is a fine idea.

I still think other issues should be front and center. For instance, I recall that there was going to be a vote on the ethics bill after the summer break. This never happened. What happened to that? Durbin is still out there hoping Roberts will do something. Eye on the ball, people. 

==

As you can see, even when there are no oral arguments, stuff is happening that relates to the Supreme Court. It is after all the head of the third branch of government. Anyway, no order list next week is scheduled, but orders might drop related to the conference. An execution is also scheduled. 

Local City Council Race

I live in an Italian rich neighborhood that decades back was represented in government by at least one Republican. A political office nearby still has the conservative candidate in the city council primary in its window. 

Kristy Marmorato, the Republican X-ray technician running against New York City Council Member Marjorie Velázquez in the Bronx, has been endorsed by several prominent individuals with close ties to former President Donald Trump.

So, it is not too surprising that the city council race is one of the most competitive. It is also not surprising that the Republican candidate has Trump connections. Having someone who is Proud Boy-friendly, still, is not really a good endorsement to have for this area. It still is at best moderate Republican as a whole, even if it did go for a clearly unqualified guy running for mayor vs. a former cop who is far from liberal. 

The main thing the Republicans might have going for them is that voters are not too knowledgeable about the details. I do not claim to know much about either candidate. I was annoyed the incumbent opposed a local site for a halfway house but did not keep track of the Bruckner Blvd thing. 

There are a handful of Republicans in the City Council, including the woman who decided to take a gun to a political rally. The Bronx district attorney (a state race) election does not seem like it is close. I checked and a summary of the two ballot measures -- as referenced recently -- noted that there was apparently no opposition to them either.  

So, it's notable if there is a competitive race here. By the way, a local dollar store recently opened near me, across from the post office. It is now closed with a sign referencing safety to consumers and staff. A Facebook discussion said there was a robbery though the councilwoman's office has not heard about it. A bit of direct involvement in the acts of the day. 

===

Prof. Eric Segall is against applying the 14A, sec. 3 measure to Trump. His overall reason is prudential, which is an appropriate aspect of constitutional analysis. I question his reasoning (see also this overheated discussion, which tosses in a misleading analysis of what is covered) there. 

My basic argument is that -- to the degree we can reasonably predict -- if the Supreme Court actually upheld a claim (far from likely; more likely it never would be decided or would be punted), the Republican Party would pick someone else. The public, watching Trump be criminally tried (a top figure in the conspiracy, Sidney Powell, pled guilty in Georgia), would find this a reasonable approach. Some will grumble, but most will accept it.

(See, e.g., Bush v. Gore. )

There would not be some violent overthrow of peace and safety. If this occurred in late 2024, yes, I can see that being problematic. But, I don't think that will happen. I surely don't want to imagine a situation where Trump actually legitimately won the relevant popular votes. And, 14A, sec. 3 battles to me are going to be the least of our concerns then. 

But, fine,  putting aside that his tone is rather assured (this is a guy begging people to support Michael Bloomberg in 2020) at times. I am much less supportive of him and others trying to toss in a bunch of bogus arguments to stack the argument about how "difficult" the question is. 

The arguments are repeatedly lame. The title alone. What "chaos"? There would be an extended, peaceful, process, with lots of bottlenecks that make this whole thing largely academic. The provision applies to presidents. Not a serious argument. And, it is not limited to the Civil War. The Constitution is for today. The language doesn't suggest that. And so on.

The need for federal enabling legislation argument is more serious though it's still weak. It is at best a prudential thing. It does not really work as applied to state offices, which the provision covers, even there. The amendment gives power to Congress to enforce the provision, just as it has the power to clarify what "privileges" or "immunities" are and so on.

Who enforces the provision and who is a serious question with strong political question vibes. For instance, the president has strong foreign policy authority, which needs congressional involvement (such as funding). There are constitutional duties there. The argument here is more than that. Segall wants the provision not to be applied at all. So, in effect, nullify it. 

The final question covered is the application of "insurrection" to Trump. Again, it is not just about him. Still, this is a complicated factual question. I covered this before and think the answer is "yes." 

It is not just about criminal provisions directly about "insurrection." It is about the constitutional reach of the provision. Consider. Is the argument that if a state denies someone an office, except for a few people convicted for sedition or the like, they acted unconstitutionally?  

Michael Dorf noted on social media he disagreed with Eric Segall and would respond. He has not of this writing though said in the past that he supported the arguments of the other side overall. 

Tuesday, October 17, 2023

Odds and Ends

With Love, From Cool World is not a great title but the book does have a nice cover. It is also an overall good read, a well written romance that juggles various serious issues, including foster care and LGBTQ+ acceptance.

New York has a couple state constitutional ballot measures on the ballot. I think it's stupid since the average person really has little knowledge on these issues. But, a vote is necessary, and this provides some useful info.

Jim Jordan, the insurrectionist, unhinged, sexual abuse ignoring guy, got 200 votes for Speaker of the House. A travesty, but not quite enough. Better luck tomorrow. Meanwhile, the Rangers are up 2-0, and the Diamondbacks (hoping to win at least a game or two) are down 1-0. Not too excited about most of the MLB teams left. Phils have talent. Yippee.

Monday, October 16, 2023

SCOTUS Watch: Orders List

I briefly referenced two orders by Roberts and Alito from last week in their role as circuit justices. A bit more on them.

One case involved a sports betting lawsuit:

The Florida pari-mutuel outlet had asked the United States Supreme Court on Oct. 6 to prevent the Seminole Tribe of Florida from resuming the taking of mobile and online sports bets through its Hard Rock BET app. West Flagler asked for the stay, it said in its filing, to prepare an official plea to the Supreme Court, called a writ of certiorari, to settle a matter that has dragged on since 2021.

On Thursday, Chief Justice John Roberts granted the stay request temporarily. The US Court of Appeals, DC Circuit had ruled in June that the Seminoles were legally able to resume sports betting activity in Florida. The Department of the Interior, which regulates tribal gambling compacts and is the target of West Flagler’s litigation, has until Oct. 18 to respond. The Court will make a final ruling on the stay thereafter.

[Legal types might note that the Seminole Tribe was involved in a major Eleventh Amendment case back in the day and that too involved gambling.]

The other (via Chris Geidner) involved Missouri v. Biden, the social-media influence case. Alito, again, issued an administrative stay of the July 4 injunction in the case after the 5th Cir wrested control of the case back and expanded its injunction (nonetheless still narrowed from the original).

Or (that's from a tweet), as he said: "tl;dr: The Biden admin is not bound by the injunction currently." This matter was referenced here before. As Geidner, who does yeoman work keeping details straight in these sorts of cases, discusses, it is part of a rather convoluted series of events. 

===

The normal practice is to drop cert grants on Friday before a Monday Order List (where pro forma stuff is handled).  Amy Howe discusses the cases here. The main one of interest allows Justice Jackson to take part in a major dispute. The grant was foreshadowed by the other case not being scheduled among the released December Calendar cases. So, things wrap up nicely.

==

I grant (ha) that these sorts of insider baseball details interest me a lot more than the average person. But, there are a lot of little things of some importance (granted, "in a fashion" in various cases) going on at the Supreme Court. 

I continue to think there should be more clarity and assistance in understanding them. This would include Order List sections that are not merely screenshots of orders but with actual links to the docket page, so we can see what happened and read more on the case. 

Such things, including a frequently asked question (FAQ) page to clarify the basic parts of a typical Order List, would be quite helpful. Why not show the average reader (and many not-so-average) that even your run-of-the-mill order has some interesting little details.  

==

The Monday Order List was a bit more thin than usual (less than three pages). The Crook v. Sheriff reference was a bit amusing. 

"Rule 39.8" is a reference to a frivolous petition. A few justices back in the day (Stevens included) opposed this policy when it was first applied around 1990. I wonder if Justice Jackson has any thoughts given her criminal defense background. As usual, even for this thin Order List, a FAQ as well as links to the actual cases cited would have been careful.

Chris Geidner referenced the recent execution where the Supreme Court lifted a lower court stay with three justices merely citing their dissent without comment. He argues it is an institutional failure not to explain. He noted in a comment the quite true fact that liberal justices stay quiet for various reasons. All things considered, I still oppose not explaining the reasons or disagreeing with the result, at least in this case. 

There is a wider belief by some that the votes in each and every case should be open. I doubt this is really necessary and it would probably lead to a policy of default votes. Will there be a rule that non-binding straw votes not be allowed or something? I don't really care if a justice or two silently dissented in not granting a case today. I do basically consider it, not a dissent unless it is actually public. "Technically" true or not.  

==

Anyway, again, that's all she wrote for now. There is another execution scheduled later in the month. The next conference is on the 27th and then the month ends with two argument days. There are those pending stays from Robert and Alito. And, something else might come up.

The corrupt packed Supreme Court is never totally not working. 

Saturday, October 14, 2023

It's A Great Life (Blondie)

This is from the first Blondie t.v. show, which had the same actor playing Bumstead with everyone else different. He was on an earlier radio program too; that one mostly had Penny Singleton (like the films) too.  

I saw a bit of one episode when there was a Blondie marathon and they had movies and a television show. The episode that was on was not very good and Bumstead came off as different from the films, where he is a goofball. There was an even short-lived 1960s version with Mr. Howell (and the voice of Mr. Magoo) as Mr. Dithers. Doesn't look that good. 

(Here is a video of an episode of the second series, which does have a good opener. Dagwood's hair just looks messy, which is the first red flag.)

After a couple not very good ones, the Blondie film this morning was quite enjoyable. It also is one of the two without "Blondie" in the title and is rather of a rather bland title that has nothing specific to do with the plot involving silliness with a horse. 

The actress they get to play Cookie (their daughter) is a good choice, including because she reminds me of the mother. 

==

By chance, a Petticoat Junction episode that aired earlier on another channel had a fake foxhunt -- it's when a daughter wins an English butler -- and this one is a real one!  Both episodes didn't have the blonde sister, who (in both varieties) is absent in many earlier episodes. Think the third is around more (I think she's too "modern" for the show). 

The dogs in both are well-trained. The horse here is too. Both of those episodes also were amusing (MeTV); the other involved a somewhat strange guest who Uncle Joe thinks is up to no good.

ETA: The new Hallmark Channel film, Field Day, was overall pretty good. Three moms from different circles work together for a school event. They each have issues though the film is focused on a mom still getting over the death of her husband. 

Rachel Boston, who was good in the film about the mom who separated from her husband, was good here too with a familiar love interest. The other two women were good and less familiar to me. One is not even among the "about the cast"! 

Brooklyn Councilwoman Charged After Openly Carrying Gun at Protest

There are not many Republicans (45/6 according to a quick search) in the New York City Council. Still, New York City Council Member Inna Vernikov (R-Brooklyn) is getting a lot of attention, if not quite in positive ways.

She was in the news in the summer when some jerk came up to her in a public place, kissed her, and walked away. She (rightly) was like "What the actual ..." and there is a clip of it that was posted. 

The NYT article (linked in a City & State article, one of a few useful online news sources for city and state news as seen by my side panel) provides a bit of context:

Ms. Vernikov, a lawyer who was born in Ukraine, describes herself in her City Council biography as “a leading voice against antisemitism.” She posted a video of herself at the Brooklyn College rally, which was organized by the group Students for Justice in Palestine, saying that the protesters supported Hamas.

“If you’re here today standing with these people, you’re nothing short of a terrorist without the bombs,” Ms. Vernikov said in the video.

There has been a mixture of Palestine-themed responses to the events, a few (which have received significant attention and have greatly upset some Jews) are a tad offensive. They might not only ignore the wrongs of Hamas but even simply provide support to the resistance of Israel that comes off as blatant support of Hamas terrorism. 

Others (quite understandably given some of the one-sided support of Israel, including its non-proportional response, which is of course totally unsurprising) are more about supporting the Palestinians. It is unclear without carefully looking at the details where in the spectrum the rally that upset her sits, but students are not always known for finesse.

Okay, her response is questionable but unsurprising. There will be pushback on both sides and she is a Republican. The problem is suggested by this screenshot:


There is a New York state law passed last year that bans the possession of firearms at protests and rallies – even with a concealed carry permit (which she has). A former public defender is cited in the C&S piece noting that a typical minority arrested would be liable to be in trouble, including possibly for "menacing" since the gun is quite apparent. The gun actually doesn't seem very "concealed" to me. We are not an open-carry state. 

The councilwoman's colleague, Tiffany Cabán, noted that as a former public defender, the fact IV only got a desk appearance ticket when she turned herself in is rather notable. The people she dealt with did not get them. The NYT reports the police said she was not "menacing" anyone, so that should not be a problem. Given her position, a conviction is not likely.

The law (as compelled by Supreme Court doctrine) limits itself to "sensitive places" when banning bringing a gun to a protest. There is some debate over exactly where she was standing (the sensitive place being the school). This flags another reason why a criminal charge is unlikely. Often the issue is not the conviction. It is the arrest and all that comes with that. 

She might get in trouble in-house on an ethics charge. I doubt she is going to be expelled for this. I don't think she deserves that for a one-off myself, but it is not a trivial matter, especially in these times:

New York City Council Minority Leader Joe Borelli: “There’s a responsibility that comes with owning a firearm, and she’ll have to address these charges with the court,” Borelli told The New York Times. “I know she is sorry about what happened.”   

Well, I'm "sorry" for a lot of things, but sometimes that isn't enough. The core issue here is that guns at rallies are trouble. The First Amendment speaks of "peaceful" assembly. A gun is inherently not peaceful. 

A gun is menacing as a result, putting aside the exact reach of that term in a criminal sense. It is unclear why she felt a need to get a concealed carry permit in the first place. Seems like theater to me but I grant some strange didn't come up and kiss me. Not that a gun would have helped much there. 

I personally think there is a constitutional right to own a gun. Public places are a special situation. This applies in general. For instance, public accommodations warrant civil rights laws that include equal engagement, even if that clashes with your religious beliefs. 

A truly private place is different. The right to own a gun is not limited to your home. But, once you take them into crowded public places, well, it's clearly a different matter. The Heller decision written by Scalia included "sensitive places" as an area where regulation is clearly possible. 

The opinion his pal Thomas wrote called into question just how much you can regulate public places. But, the overall point holds, this time with a clear need to balance constitutional rights (see also, how fair public trials and the First Amendment requires sensitive balancing). 

There is also a matter of judgment. For instance, one reporter asked Gov. Hochul about Palestinians and her answer was that they should follow the rules set forth by Israel. It was a one-sided answer. That's bad judgment. The Israel/Palestinian Conflict has a lot of that. Both sides might not have the same amount of power in various respects. But, there are some "both sides" here. That concept is often abused without being totally incorrect.

The presence of guns at protests is a thing. Some people blatantly carry large scary-looking guns at a few protests as a sort of theater, though clearly a form of menacing theater. It is a bad thing.  Guns in public places cause trouble. This is a red flag with "stand your ground" type laws, even as people try to nitpick things to death. They change the dynamic and invite problems. Legally innocent does not mean someone isn't dead. 

The councilwoman here did not go that far. But, her actions were irresponsible. I hope they help lead her to lose her office in November though unless she is in a narrowly divided district, not likely. Still, something this misguided is that level. 

It is just plain stupid. 

Friday, October 13, 2023

Film and Books

The NYPL doesn't have much in the way of Clara Bow, the famous "flapper" actress, films. But, did have this interesting film where she is not the main attraction. She plays "Kittens," the selfish daughter, who takes after her father, a philandering businessman. 

Left out is her mother, who left the stage to marry, but she decides to "live" some herself. Alice Joyce (about 35 here) according to Wikipedia was in films at least as far back as 1910. Both actresses made a few talkies, Bow retiring under the age of 30. 

This silent, based on a play, has feminist aspects. The ending has her refusing to go back to her husband and daughter. The instrumental soundtrack gets a bit one-note after a while. Still, at about an hour, the film was quite watchable. I overall enjoyed it. 

==

The Gaza Strip/Israel conflict makes the timing of a book about the history of The Jewish Deli feel a bit off. 

Still, we can't require it to carry that burden. The graphic book is an enjoyable and informative volume. There is even a reference (if not among the full profiles) of a vegan deli. There seem to be a lot of eggs in Jewish foods, putting aside all the meat, fish, and dairy meals. I did have a bagel for breakfast to be in the groove. 

I heard the author of The Tango War give an interview about her recent book on the Catholic Church (Freedom From Religion interview). This one covers the various aspects of Latin America's role in World War II. I am familiar with some of this ground but not all of it. Well done. I will likely provide a more extensive book summary in a few weeks. 

Congress Follies

After Kevin McCarthy gave the trolls the power to oust him quite easily, well, one did -- Matt Gaetz. It looked like Scalise, who once said he was the David Duke without the baggage (and later was shot by a left-leaning unhinged person), would be the next Speaker of the House. 

He only received 110 votes in the Republican caucus vote, yes, but wasn't that supposed to be binding? It still was a majority. Not really. The person from my vantage point (not that I keep too much track) seemed like an ideologically acceptable type while still having some credibility as an institutionalist (he was in leadership in the past) did not get enough support. So the reality program goes on. Who will get the rose?

[There are six delegates with limited powers, but no floor votes, representing territories. Three are Republicans and they did vote in the caucus. I'm not sure but their vote might not be binding though at the end of the day the whole thing was moot.]

Meanwhile, there is the Senate. Military and ambassador positions continue to be blocked by Republican actions, not just Tommy Tuberville. This underlines, that even if Senate Republicans are somewhat more sensible than House Republicans (though the Senate Judiciary faction leaves a lot to be desired), they have little standing as credible legislators.  

Senate Democrats have a few issues, including Senator "I won't support child poverty funding" Manchin. The one lacking in credibility to govern is Senator Robert Menedez (D-NJ), who a majority of the Democratic caucus (including his fellow senator) says should resign. 

Already indicted for bribery, new charges were dropped that he acted as a foreign agent for Egypt. This is not well timed given the Israel/Gaza conflict, including Egypt's resistance to accepting Gazan refugees.  

Rick Hasen at Election Law Blog simply notes "serious." The NYT summary emphasizes that this charge directly challenges his loyalty to his constitutional oath. Ah. Sounds like our 14A, sec. 3 discussions. Legislators do take an oath. It often is not really treated as meaning much. This is somewhat unfortunate, especially as legislators fail in their responsibilities.

===

SCOTUS Update

Meanwhile, a few odds and ends at SCOTUS. A couple stays (Roberts and Alito). The release of the December calendar, which is somewhat thin, but does include the tax case involving Alito's Wall St. Journal pal (Alito was ethically obligated to recuse but refused). 

I also saw a bit of old news referenced (h/t SCOTUSBlog) involving a large piece of marble that fell inside the Court last term, but for whatever reason they refuse to talk about it on the record. This sort of lack of transparency is standard. Sometimes, the press officer will release statements but rarely put them on the website.

Monday is an order day and then they pop up again at the end of the month for the November Argument. Will we have a speaker of the House by then?  ETA: Jim Jordan was chosen but (if more than Scalise) didn't get enough House Republican support to risk a floor vote. Oh well. Can't see some Republicans, including in Biden districts, vote for that character. 

Wednesday, October 11, 2023

SCOTUS Watch: Order List Day

The Order List was dropped today because yesterday was a federal holiday. Whatever you want to call it. 

An aside. I'm half-Italian, half-Irish, and joke that March 18th (between feast days for Irish and Italian) should be called "JP Day" in honor of my first and middle names. Columbus Day is not a great means to promote Italian heritage. The guy is a dubious character. 

(See here for a book summary that references the Italian thing.)

I referenced a New York gun regulation case that Sotomayor rejected in her role as circuit justice. The litigant tried again with Thomas. This maneuver is allowed but basically (am not sure if it ever worked) hopeless. It was here though it took a little while to process (referred to the Supreme Court conference last month).  

The other somewhat notable matter (see first link) is that Justice Thomas again made clear he does not like New York Times v. Sullivan (absolute malice standard for libel). The case was not a good platform to challenge it, says he, but the law is still bad and not originalist.  

Even Thomas in his statement notes "the law was not static" regarding free speech but argues the issue of libel was a state issue the Court "usurped" in Sullivan. Apply that to guns, maybe?  

Anyway, Justice White over the years also argued the law went too far in one direction but some reporter on the Supreme Court talking about "nuking" freedom of the press here is rank hyperbole. That sort of talk is how token limits are labeled as "course correction" (see my previous post).  Yes, his selective concern for originalism here does help some elites get protection (Trump is against the rule) but any change would not just help one side. Left-leaning types would also use weaker libel laws.  

===

There were not a lot of oral arguments scheduled this month (the end of the month is technically the November argument) though a few are notable for various reasons. An important administrative law case was up last week. 

A former Sotomayor clerk and Take Care Blog podcast host (remember that anti-Trump blog?) vs. Eugene Scalia (yes, that Scalia) today went head-to-head in a whistleblower case. Easha Anand sounded quite good, having the steady rational tone of the U.S. solicitor general.  

A former Trump acting solicitor general challenged the How Appealing Blog (appeals courts matters) in a maritime law case. Both are lower key cases, the sort of "meat and potatoes" that the Supreme Court should handle to oversee the interpretation of federal law. 

A districting case involving racial discrimination claims is up tomorrow.  

==

Today's Mental Health Awareness Day. It also is World Against The Death Penalty Day. A somewhat inapt day for an execution. 

Jedidiah Murphy was scheduled to be executed by Texas today. A district court granted a stay of execution. The conservative Fifth Circuit Court of Appeals upheld it 2-1 with a curious "fake" dissenting opinion as Chris Geidner discussed. I'm unsure how upset we should be about the dissent but it does seem at least childish. As he noted:

The district court had issued Murphy a stay of execution because of ongoing questions about Texas’s post-conviction procedures and the availability of DNA testing (or, to be more precise, unavailability) for certain people facing execution, including in a case pending before the Fifth Circuit.

The Supreme Court then -- without explanation -- vacated the stay. The liberals would have denied the request. Why? They didn't say. I have been on this point for a while now, but this pisses me off. 

And, this is not some longshot appeal which is basically a Hail Mary even in the eyes of this opponent of the death penalty. It is a more special case where a lower court (here a conservative one) held up an execution but the Supreme Court actively stepped in to overturn the stay. The "fake dissent" business just makes it more notable though again I don't know how much we should care about that sort of thing. 

A Dallas County jury convicted Jedidiah Murphy in 2001 for shooting and killing Bertie Lee Cunningham [79-year-old woman] during the carjacking. I continue to think that executing people on death row for over twenty years is problematic. (See Breyer dissent in Glossip v. Gross) One issue in the case is a dispute over the aggravating circumstances involved.

It is gratuitous to overturn the stay here. I guess the "fake" dissenter has the final laugh. Texas executed Mr. Murphy after the Supreme Court (now without dissent) denied one more request alleging the lethal injection drugs were tainted. He was one of the younger people executed at 48.

Over the years, various concerns involving the drugs (including secrecy and lack of clear guidelines) have not obtained much Supreme Court review at all after an early case (Baze v. Rees) involving procedural safeguards during the execution itself was rejected 7-2. Justice Stevens said the evidence was mixed but did suggest if the death penalty as a whole was at issue, he would deem it unconstitutional as arbitrary. Breyer concurred in judgment, only later turning against the penalty as a whole.  

Once, Jackson (with Sotomayor) dropped a written dissent after the execution. There is a bit of logic to doing this, not rushing to get it in by the end of the day or something. After noting my disgust on social media at the lack of a written dissent, I left that open.  I doubt it will happen but if she drops one later today, I will edit this entry.  

(I was going to publish this yesterday but delayed it when the execution did not happen until later in the day.) 

Tuesday, October 10, 2023

Blatantly Horrible Senate Confirmation Holds

To quote Heather Cox Richardson's Substack again:

Because of holds Republican senators have put on the nomination process, the U.S. does not have a Senate-confirmed ambassador to Israel or Egypt, the two countries that border the Gaza Strip. The nominees for U.S. ambassador to Oman and Kuwait are similarly waiting for confirmation, as is the State Department’s coordinator for counterterrorism.

Battles during the Obama Administration led to the (correct) end of filibusters for executive appointments. 

But, that is simply the means to obtain cloture. There are other ways, as shown by  Sen. Tommy "aided and abetted by his Republican colleagues" Tuberville blocking military promotions. 

This is ridiculous. There is a basic excessive need for confirmations as is. Do we really need extended processes to obtain ambassadors to Kuwait and Oman? Or, some sub-secretary to something or other?  Not in my book. Yes, there is a constitutional rule, and it applies to ambassadors. Both sides can agree to a general rule to confirm except in glaring cases. I know they won't. But, a range of inferior officials do not constitutionally require it.

The events in Israel and the Gaza Strip provide a chance to push for a basic change of the rules here. Crying for the "Democrats" to change the rule when the usual suspects are the real problem is tiresome. This ultimately is about the Republicans, who can join with nearly all the Democrats to move forward. It is the path to sanity. Let's have Schumer on down say so.  

I have been observing these confirmation battles for decades. I know the drill. Trump's nominations were held up in various cases. I think it can be shown the Trump Administration did not care that much in many cases, fine with policy being made outside of the official positions here. 

But, as with the Democratic filibusters [which, yes, at the time, I supported in part since I felt the majority will was being denied] of lower court judicial nominees during the Bush43 Administration, what really was the ultimate value? Moves by Mitch McConnell to speed along the confirmation of district court judges was net a good civics move. 

I think it holds here too. A bad president will bring with them some bad personnel. It's part of the deal. The Senate has some role in overseeing nominations. They can vote down horrible choices. I think any extended role, however, should be limited to a small number of positions. And, even there, by mid-first term, the positions should very well be filled.  

And, Democrats and Republican senators can make fun of the mess in the House Speaker situation. Ha ha. Yeah. Democrats should hoist their colleagues on the petard of Kevin McCarthy. Republicans in the Senate have a lot to answer for too. 

Monday, October 09, 2023

Gerard N. Magliocca 14A, sec. 3 Brief

I have recently spent some time trying to interpret the 14A, sec. 3 provision that disqualifies certain people from office. I covered a lot of ground. I am still working through these issues. 

Heck, I am working through constitutional issues that I have been thinking about for decades. This is surely new. It is not something that was in my vision when I wrote a long personal account about the Constitution fifteen years ago. We have gone quite afield constitutionally since then.

The issues are still in flux and their meanings are being considered and developed. We can see this in what seems to be somewhat competing (on a minor but notable point) between two people who blog about Balkanization and have written in-depth on this issue, including writing books about the legal developments of the era and key people involved. 

Gerard N. Magliocca has an amicus brief in a state case. His conclusions are generally mine on the main points. He does note that the disqualification is limited to those who take an oath to the Constitution AND who commit acts against the Constitution. But, he adds this:

This means that neither of the leading ante-bellum insurrections would have been considered Section 3 insurrections if either had occurred after 1868. The Whiskey Insurrection and Fries’s Insurrection each involved resistance to a single federal tax. Neither involved resistance to the Constitution in the way that secession did during the Civil War. This textual limit on the common law of insurrection was intentional. The point of Section 3 was not to disqualify from office all those who had engaged in insurrection of whatever kind. 

He also notes that an academic dispute over a circuit ruling by Chief Justice Chase (involving a special situation) need not confuse people. The specific dispute does not bring that up. It is good to avoid side issues. And, the actual transfer of power, the constitutionally set forth counting of votes and declaring the winner of the presidential election, is a clear case.  

GM has a section that shows how words can fall within "insurrection" and "rebellion," in part using original understanding. That is fine. My argument would be that it is not even necessary to go so far. The 1/6 Committee, for instance, had an in-depth analysis of Trump's actions (and inactions) during the events. It is not just about his words beforehand. It is about his words and actions, before, during, and after [see Georgia indictment].

Anyway. I noted in one of my discussions that wrongdoing against a state (or state constitution) might in some fashion cause issues here. I said it was a possibility and am fine with not holding to it. If we have to focus on interfering with federal constitutional acts, I am fine with that. 

Still, the idea that the Whiskey Rebellion (except perhaps some aspect of it such as directly fighting the federal militia) is not a "rebellion" for 14A, sec. 3 purposes is ... well, it seems rather wrong. My understanding is that this was regularly flagged as a way to give meaning to it. Why is interfering with funding the government, using armed forces to do so, not a form of "rebellion" here? That paragraph is really dubious.

I understand the value of cabining the provision. Consider this from Mark Graber, which I have referenced before:

An insurrection at the time Section Three was framed consisted of two or more persons resisting the implementation of any law by force, violence and intimidation for a public purpose and was not limited to rebellious attempts to overthrow the government.  

To quote the article:

Nineteenth century Americans believed that a person engaged in an insurrection by performing an act knowingly supporting an effort by more than one person to interfere with the implementation of a federal law by force or intimidation by numbers for a public purpose.

That is rather broad. I do not say this alone is determinative. If you read the second section of the Fourteenth Amendment, you can see how voting rights "any way abridged" (with a few set limits, one overridden by the 19A) is covered. No wonder the section was never enforced! The breadth of the First Amendment at times is a bit amazing. We had a case some years back dealing with credit card statements. 

A basic way to cabin the reach is for Congress to pass legislation that spells out in a more limited fashion its reach. It can also by a supermajority vote waive the disqualification except for this subset of people. Yes, have fun waiting for that to happen. The writing strike is over. Watch some television. But, seriously, it should do more in this area.

I also am not overly appalled at the possible reach though we can imagine hypos that can reach the absurd. This is not mere protest, including civil disobedience of the kind used over the years such as trespass or symbolic burning of draft cards. This is by "force" and "intimidation." Trespass might at some point reach that, I guess, but 1/6 provides a clear case given the overall conspiracy involved. We are not just talking about some people who are sitting in some congressional offices as a protest or who break into a federal facility and pour some blood on some papers symbolically.  

Still, the terms appear to be rather broad. I think the Whiskey Rebellion or some prison revolt ala Attica (make it a federal prison if necessary) is more the sensible reach of the provision. A person who interferes with a federal arrest very well might technically fall within its terms. But, "insurrection" and "rebellion" just seem to me a tad more grandiose than that.

The Whiskey Rebellion counts. The rebellion, using armed force, interfered with the federal government's collection of revenue. This was a constitutional function. It is not as central to our system of government as elections. Nonetheless, along with the regulation of commerce and a few other things, it is a fundamental reason the Constitution was ratified. 

The insertion of the quite unnecessary paragraph in the amicus brief, which seems to suggest that the provision is limited to special constitutional acts is open to abuse. I assume that he would think a similar scheme to stop the Supreme Court from opening its term or hand down some opinion would count. But, an extended -- violent -- conspiracy to interfere with the collection of taxes would not? Not a single taxpayer. A group of people with an extended concerted effort to block the collection of taxes.

That counts too.  Anyway, I welcome the continued discussion of this topic and clarity over the reach of the provision. And, the brief as a whole is worthwhile without (and it doesn't intend to be) being comprehensive. 

SCOTUS: All Is Well! (Not Really)

A local law student and professor co-wrote an op-ed at the NYT entitled "The Supreme Court Is Not as Politicized as You May Think." Unless Justice Breyer is writing under a pseudonym. 

The basic conclusion is that only a small number of cases are ideologically divisive and some subset of that has surprising results. The word "may" here is advisable. Unless one has a simplistic view of the Supreme Court, this is not surprising. If you put aside gun rights, abortion rights, praying coaches, various administrative law cases ... well, you know, some very important things. Also, five conservative justices only go so far. No shit. 

A piece by Dahlia Lithwick -- who kneejerks and snarks a bit too much for my tastes (is it required to write at Slate?) -- has a more annoying piece. The issue here to me seems to be like Ian Millhiser at Vox, who repeatedly has pieces that hype up the stakes so that even a moderate amount of sanity is almost shocking. He's the "end the Senate" guy too. 

Noting that those who write pieces often do not write headlines, the title of the piece is annoying in itself: "The Only Working Branch of Government This Week." That's bullshit. Total bullshit. How did the Executive Branch not work? How did the Biden Administration not work? How? How I will ask one more f-ing time. Stop lying. Stop "all sides." 

One-half of one branch didn't work (the date here is 10/7). The Senate worked. Someone died and a normal process was followed to appoint a new senator to represent California. Senate Republicans sent the message that they will not block Senate Democrats from seating her on committees and appointing a new member to the Senate Judiciary. 

The blatant bullshit -- yes, some after-midnight anger here -- is not just in the headline. I would not consent to have my byline under that. We read in the actual piece how she is surprised that it "would become the one branch of government capable of modulating its own conduct in the face of chaos and self-immolation." What does the Biden Administration have to do now? What "modulating" is necessary?  

What BIG thing did the Supreme Court do? It wasn't interested in striking down as unconstitutional a whole agency. When did it ever? The m.o. of the Roberts Court is to make it harder for agencies to operate. No modulation.  Not badmouthing each other during the summer? When does it go around badmouthing each other? They suck up to each other regularly.

[ETA: Also, just how sane the Court was during the CFPB is somewhat unclear. Kate Shaw, the most optimistic of the Strict Scrutiny Podcast trio on this morning's podcast suggests it might be a 5-4 opinion with Roberts somewhat sympathetic to the challengers. They will reject it but some overall "course correction" bit of sanity very well might leave something to be desired.]

It is noted that they badmouthed each other after the Dobbs leak. Don't recall them doing it that much. OTOH, Alito doesn't seem to be "modulating" much. BTW, who leaked it again? Are abortion rights back? 

What big evidence is there that Thomas is? Wow! He recused in a single case involving his pal John Eastman, under criminal indictment, involving a committee Ginny Thomas also testified (I gather she was asked questions under oath) in front of. That was unanimously denied cert or whatever. 

They also rejected the Alabama Legislature's attempt to nullify its holding. The actual ruling was a somewhat surprising case though Kavanaugh dropped a "by the way" that made Alabama think they still had a shot. The fact the Supreme Court defended its own power (when the court below also went against it) is surprising? Why? Why? What is wrong with you?

This is the low standards we are left with, the need to find some positive message of hope, that leads her to reference a "course-correct." 

After helping the Republicans win in 2022, Kavanaugh decides to vote with Roberts (while leaving open more chances for conservatives to win) to uphold precedent. And, the justices do not let Alabama blatantly ignore its opinion. The tea leaves put the Democrats having a good shot in 2024 anyway. Granting the ruling was a positive development, even that only is so impressive. 

The Court isn't that politicized and they had a "course-correct." Hey, no need for Congress to pass an ethics bill! The Supreme Court (just trust them!) might even pass its own (after saying it seemed hopeless, this critic suddenly has hope). Why in the hell should we trust them? Checks and balances, anyone? Two justices should be kicked off for violating good behavior rules; surely Clarence Thomas. Who even says this?

I am reminded of the famous bit from The American President though I wish more people would "know the difference." 

People want leadership, Mr. President, and in the absence of genuine leadership, they’ll listen to anyone who steps up to the microphone. They want leadership. They’re so thirsty for it they’ll crawl through the desert toward a mirage, and when they discover there’s no water, they’ll drink the sand.

This is the problem at times when a very serious situation is framed in almost apocalyptic terms. Dahlia Lithwick and others often very well have some good things to say. I do not think them (as one liberal law professor I respect) "the best out there" or something, but generally speaking, they are appreciated. Back when I was about to comment on the Slate Fray and now, I still think Lithwick goes too far. But, I will not deny her that. 

The truth of the matter is that the Roberts Court plays the long game, even if the 6-3 Court has "YOLO" moments. I really don't see some "course correction" here, based on the material provided, worthy of this piece. It is a libel (written) on the Biden Administration especially to suggest the Supreme Court is the only branch that is working these days.

I'm sure certain things can be cited (Kagan noting why she is recusing, Jackson actually posting a transcript of her speech, Thomas managing to recuse in one case -- but not the 14A, sec. 3 lawsuit, even though his wife engaged with people involved in the conspiracy etc.). 

They won't go TOO far (though they never did, Dobbs a glaring exception, go all the way) and toss in a few surprises. The betting line is they found a gun regulation (involving domestic violence) at least six justices will support. Cue the first op-ed.  Not new. 

Maybe, "the Roberts Court is collectively about as terrified of the grift, the violence, and the existential threat to democracy that is Trumpism." That didn't stop Barrett et. al. from accepting Trump's nomination. Cue that meme of the hotdog guy saying he is appalled at the mess that was made and wants to find out who did it. If they were SO "terrified," why couldn't Roberts show up at the Senate? Well, can't ask too much.

They are doing all this course correction already! STFU. 

Sunday, October 08, 2023

Sports Update

A brief sports update. The Jaguars like playing in London (or as Joey on Friends might say IN LONDON!), including beating the Bills today. The Bills seemed jet lagged. The Jags was refreshed and already played in London last week.

One entertaining game today was the continuing rivalry game between the Ravens and Steelers (with a young QB). Somehow, the Steelers managed to have enough offense, the theme constantly being defensive stops with no offense. Five points basically arose from a safety and free kick. Scored late and enough.

Giants had Miami and a loss. Who knew that even with Rodgers out after four plays, the Giants would be the worse team? The Jets won against the Broncos, who are a mess themselves. The Orioles are 0-2 in a five-game series. A few baseball analysts are pushing the Twins. Well, that's better than the Rangers/Astros!

The Secrets of Bella Vista

There are many Hallmark Channel movies, especially with multiple Hallmark channels (one is focused on "cozy" type mysteries), but I do not like many of them. Certain actors are good bets. 

I liked a couple films (at least) with Julie Gonzalo so the one on last night (with a ghost) seemed promising. It was okay but it was kinda boring and I turned it off about halfway. The younger actress (20s) who played the ghost was interesting. Never saw her before though she was in a few things. 

Don't recall this film when it was first on in 2022. It was on yesterday afternoon, more films on the channel over the weekend (but not usually all night long). The guy seems familiar but not the lead actress though she has a diverse number of credits, including the Twilight films. 

The film was overall good with a somewhat different twist than many Hallmark movies. A woman finds out she inherited a half interest in an orchard after her grandfather died. She has no relationship with that side of the family after her father apparently abandoned her and her mother even before she was born. Maybe they should have aired it today, Grandmother's Day, since the grandmothers also have a role in the film.  

[ETA: It is amusing as well as somewhat annoying that the editing software highlights the "maybe" and "apparently." The very point there is that I am trying to say the fact is not totally clear.]

Of course, things are all a bit more complicated. She finds out she has a half-sister (no one reads this, but I won't add more) and falls in love (basically a given in these films). The love story, however, is a minor part of the film, which is more about her family and trying to find a way to save the farm. A lesbian couple is also gently inserted (they are her friends).

I liked the film as a whole. Well acted. The guy is a tad bland but still interesting. A very female-friendly film, with women playing a range of roles, and the supporting cast (important for film enjoyment) is again generally very good. The film is also generally well paced with enough going on that it kept my interest. That is an important aspect of these films.

The elite angle (banker flying his own plane, a solution allowing each sister's dream positions, etc.) is a bit much in this film. These films often have a fantasy element in that respect but at times it was a bit too much for me here. If this film ever pops up on the rotation, check it out.

==

Bonnie Somerville, who plays "Mona" (very funny) on Friends, was in Holiday Engagement. This is an old Hallmark film that I found in the library.  It also has various other familiar television faces, including another character from Friends (Chandler's sexist boss).  

The film has some charms but gets a bit tiresome. I turned it off when it was about to have its second-half dramatic twist. 

ETA: Sometimes a nice, if somewhat less elaborate and/or polished final product, Hallmark-like film pops up on Up TV. 

Sweet As Maple Syrup was on Sunday night. It was a pleasant film that even might be said to be liberal-minded (after all the woman was open to new techniques from the science guy) even if the same small-town feeling is promoted. A few films do not highlight the small town vibe but bluntly having these films in cities at times is as striking as divorcees or the like.

Hamas Attack on Israel

I feel comfortable opining on a range of topics to some degree but am wary about Israel. There is just so much ideological drama on the subject. The liberal-leaning Can We Talk About Israel: A Guide for the Curious, Confused, and Conflicted is a helpful book. (Book summary by me). 

Heather Cox Richardson (a historian who has a new book entitled Democracy Awakening)  has another useful daily summary. A basic summary of recent events:

Early this morning, Eastern Daylight Time, Hamas militants broke out of the Gaza Strip, where approximately 2 million Palestinians live, largely unable to leave because of the extensive restrictions Israel has imposed. They pushed as far as 15 miles (about 24 kilometers) into Israel, taking over at least 22 towns and firing at least 2,500 rockets. They have killed at least 250 Israelis, wounded more than 1,500 others, and taken hostages. The attack was a surprise, having an effect on Israelis that observers are comparing to the effect of 9-11 on people in the U.S. 

Hamas is a group of Palestinian militants that make up one of the two major political parties in the Palestinian Territories, which consist of the West Bank and the Gaza Strip. Hamas was established in 1987 and gained control of the Gaza Strip in 2007. Since then, Hamas and the Israeli Defense Forces (IDF) have periodically exchanged fire. In May 2021 that tension turned into an 11-day conflict that has simmered along the security fence between Israel and Gaza ever since. 

The general remarks (including from Biden and the Republicans trying to make partisan hay by suggesting Biden is soft on Iran) are standard. There have been some efforts to bring Saudi Arabia and Israel closer, including actually having them officially recognize Israel. So this is notable too:

Both Saudi Arabia and Qatar have contextualized the attack by calling out Israel’s treatment of the Palestinian people but also are calling for restraint and for the violence to stop. 

India, too, has expressed solidarity with Israel. 

When (per the NYT summary) we are talking about "two centuries" of conflict, this probably does not surprise too many on some level. More recently:

The fighting — including in May 2021, when the Israeli police raided Al Aqsa Mosque in Jerusalem, which in part helped set off an 11-day war between Israel and Hamas — have left thousands dead.

Hamas are militants and designated as a terrorist group. They are in control of the Gaza Strip, a god-forsaken slip of land (Israel itself is small with less than ten million people according to Wikipedia) that arose out of the 1967 Israel War. It has over two million people. Informed Comment notes:

So far from economic efflorescence is Gaza that only 4% of its freshwater is fit for human consumption, and it has electricity only for a few hours a day. Israel does not allow Gaza to have a harbor or an airport, rather denting the likelihood of anything trickling down.

Juan Cole's analysis provides some added context that provides some understanding of why violence is being used here. 

My overall, clearly far from fully informed, belief is that the use of violence by the Palestinians has been tragic. They have a sympathetic case in various respects (even if you accept the basic concept of the nation of Israel) and a weakened position where violence is not likely to obtain ultimate success. 

Another thing that I feel rather strongly about is that settlements are gigantic barriers to any "two-state solution" (the Biden Administration's official position as I understand it) or peaceful solution in general. They are illegal under international law (the territory is supposed to be temporarily retained) and provide Swiss cheese-level Palestinian territories. It also results in an overall feeling of military occupation on a day-to-day level.

Gaza Strip alone is not going to be its own nation. There needs to be an overall settlement. This is opposed by many regional forces, including Iran and Russia. The idea the likes of Jared Kushner were going to find a solution is as laughable as it is offensive. And, as suggested by the book, the current criminal in power in Israel is just a raw wound for Palestinians and any chance of peace. His history there is again suggested by the book. 

Juan Cole adds:

The Israeli extremists have openly been talking about illegally annexing the occupied Palestinian territories that Israel seized in 1967 and imposing full Israeli sovereignty, with the implication that the stateless Palestinians would somehow be expelled. Indeed, forms of ethnic cleansing or population transfer have already been taking place this year.

All of this, as President Biden notes, does not justify violent terroristic attacks. It does explain them and informs the situation. President Netanyahu notes this is the "first phase" of his country's response. This might be a long-term conflict. Who knows. The chance the net result will benefit the actual people of the Gaza Strip is dubious.

Cole notes in Informed Comment that presidential candidate Mitt Romney in 2012 said that there was no solution to the Israeli-Palestinian. We could only "kick it down the road." The can continues to be kicked. I personally (while admittedly more concerned about apparent hopeless things locally) do not see much chance of much change in the immediate future.

Happy Grandmother's Day. Will their grandchildren be grandmothers continue to see the same basic news play out?  

ETA: I see some headlines about a rally for Palestinians and this triggers some people who consider it a pro-terrorist thing. Okay.  

Saturday, October 07, 2023

Legal Odds and Ends

Heather Cox Richardson in a recent "Letters from an American" Substack underlines my annoyance that no Democrat challenged the sitting of a member of Congress on 14A, Sec. 3 grounds:

On January 6, 2021, then-Representative Liz Cheney (R-WY) told Jordan to get away from her because “You f*ck*ng did this!” 

Yesterday, in a speech at the University of Minnesota, Cheney explained: “Jim Jordan knew more about what Donald Trump had planned for January 6 than any other member of the House of Representatives. Jim Jordan was involved, was part of the conspiracy in which Donald Trump was engaged as he attempted to overturn the election…. There was a handful of people, of which he was the leader, who knew what Donald Trump had planned. Now somebody needs to ask Jim Jordan, ‘Why didn’t you report to the Capitol Police what you knew Donald Trump had planned? You were in those meetings at the White House.’”

She concluded: “If the Republicans decide that Jim Jordan should be the Speaker of the House…there would no longer be any possible way to argue that a group of elected Republicans could be counted on to defend the Constitution.”

Ah. Jim Jordan, a leading option for Speaker of the House now that Kevin McCarthy has been deposed by Matt Gaetz and the rest of the infamous eight. Somewhat related, a supporter of the usage of the provision flagged two dissenters to the refusal of women's suffrage back in 1871.

Victoria Woodhull's 1871 petition requested a declaration that Section One of the Fourteenth Amendment gave women the right to vote. This was before she decided to go respectable in the mid-1870s though she did live to see the 19th Amendment ratified. The Loughridge/Butler (Minority) Report, including this bit of interpretative analysis:

[T]he Constitution necessarily deals in general principles; these principles are to be carried out to their legitimate conclusion and result by legislation, and we are to judge of the intention of those who established the Constitution by what they say, guided by what they declare on the face of the instrument to be their object.

The dissenters, including a former state judge, rejected a form of "original understanding" that did not recognize women's suffrage. The text of the Fourteenth Amendment, including a general reference to "citizen," should be the test. And, broad "general principles" is the name of the game.  

Meanwhile, back to the Trump-packed Supreme Court. Monday is a holiday (the three-day Columbus or Whatever You Call It Day weekend coming early this year), but Eugene Scalia will be up later in the week. Facing him will not be a child of a justice, but Sotomayor's former law clerk. 

We did have an order drop on Friday. The winding "ghost gun" battles continued as Justice Alito dropped an administrative stay to have time to examine things. Those who closely watch Strict Scrutiny Podcast's favorite justice (in a hate/love sort of way, especially as he dropped a dog hypo this week; all three hosts have dogs) know he has dropped multiple stays (he has the troublesome Fifth Circuit) in recent memory, including one that ran out without any further action on the Supreme Court level.

(Another gun case, a rare re-submission to another justice, is being examined now, supposedly due to be summarily rejected on Tuesday.)

And, after listening to him on the Freedom From Religion podcast, I read Steven Green's Inventing A Christian America book. The 2015 book has a supportive blurb from John Fea, an evangelist historian who wrote a volume on a related subject. Fea later wrote a book as one of the minority of anti-Trump evangelists. He is also a Mets fan. Can find him on C-SPAN.

The term "myth" is the more academic meaning of an explanation of events that help define how a society sees itself. The book is generally interesting but somewhat too academic. It also drops terms like "millennialism" like everyone knows what it means and notes Puritans left England after being persecuted (to some degree) without actually providing details of specifically what that entailed. Covers a lot of ground.

Wednesday, October 04, 2023

Spiritual Sobriety

I think I read Elizabeth Esther's first book (but don't see it referenced on the blog) on her involvement in an abusive cult. Anyways, I have read her, including her substack which has some good content.

This book concerns the problem of addictive religious behavior. But, her lessons are more open-ended, even if she comes at this from a God-focused (with prayers and biblical quotes) framework. It has some good general lessons and her at times snarky (and truth telling) tone is appreciated.The book has a blurb from Rachel Held Evans (it's not a new book; EE has not written any more books).

I also think that any parent, especially someone with five children, has to have some mental problems. I speak as one of five. I'm being a bit facetious here. But, not completely.

Tuesday, October 03, 2023

Bye Kevin

We had the multi-day mess where no Speaker of the House of Representatives was chosen since dissident Republicans didn't vote for Kevin McCarthy. It took fifteen votes and meanwhile, a clerk presided over the house. It was fun and all, but eventually the inevitable happened.

A few Republicans still were not happy about the whole thing, certain members of the so-called "Freedom Caucus." A prime enemy of McCarthy, one of the last people to change his mind, was Matt Gaetz. Rep. Gaetz (who people for a long time assumed was just ABOUT to be indicted for some crime, perhaps involving funds obtained for jailbait, but he never was) is sleaze in human form. The two were made for each other.

Gaetz got his chance when Kevin McCarthy at the last minute (almost literally) decided to not leave things open for a government shutdown. He had a vote on Saturday to have a continuing budget resolution for another 45 days. 

[ETA: It seems surprising that McCarthy did this. The general idea is that he is not totally insane, realizing you need a budget. 

OTOH, a Democratic insider suggests -- makes a good case -- it was really a set-up, expecting the Democrats to vote against it (after all, they weren't even given a chance to examine it fully) and then they would get blamed. Online folks call this "Murc's Law" -- only Democrats have agency.]

This required the Democrats to go along since a significant minority of the Republicans voted against it. McCarthy didn't give the Democrats a chance to look at the resolution and then badmouthed them on Sunday talk shows or something. So, multiple groups didn't like him.

People didn't take Gaetz seriously, including Josh Marshall at Talking Points Memo, partially because there was no great alternative. Who would want the position when they would basically be at the beck and call of that guy? Turned out, even with four Democrats absent (two at funerals, one sick, one had a family issue), McCarthy lost. And, it took a lot quicker.

The Democrats were not going to save him:

The litany piled up: his vote to overturn the 2020 presidential election results after pro-Trump rioters stormed the Capitol on Jan. 6, 2021; his decision to renege on the debt limit deal he had brokered with President Biden in the summer to appease the rebels; his friendly relationship with former President Donald J. Trump; and his decision to open an impeachment inquiry into Mr. Biden without evidence of wrongdoing.

Kevin McCarthy very well might have had a shot if he tried to negotiate some deal but he did not. He very well might have thought like the others that he was safe. Maybe, he also thought any deal with the Democrats would not go well within his own caucus. Would yet another challenge be made to his speakership, this time by even more people? 

I'm glad the guy is gone. I was tired of all the drama with Gaetz and more. We are getting some evidence of civil and criminal justice for Trump. And, now Kevin McCarthy is getting some of his comeuppance. Democratic unity is also good. Democratic leadership is coming off as the sane and secure group in the room. This all is a net good.

The rules have the Speaker secretly pick someone to fill in for him in case of a vacancy. So, there is a speaker pro tempore, but he only gets to preside over selecting a replacement. He did kick Pelosi out of a special office by tomorrow. She's not around because she is at Feinstein's funeral. The Democrats had proxy voting. The Republicans removed it. 

The new speaker should be chosen next week. There is always talk of Trump becoming Speaker since the Constitution does not literally say it has to be a member of the House. This is literally true though it never happened and doesn't make much sense. Anyway, current House Republican rules say such leadership cannot be indicted for serious crimes. 

Will the new leader be worse than Kevin? Like impeaching Biden, giving congressional tapes to Tucker Carlson, meeting Trump right after 1/6, and not including Ukraine funding in a continuing budget resolution? You figure if Kevin actually stayed, he would have to if anything be more subservient to the Freedom Caucus. But, there is also the "we can't have good things" principle that provides some negative to Kevin being gone.

Still, it's a good day. What an asshole. Plus, the new senator from California was sworn in. Feinstein dying was not really my choice. I wanted her to resign. But, it is not really a tragedy a very frail 90-year-old died.  She was not forced out. Except by nature, let's say. 

ETA: People, including Kevin McCarthy, still blaming the Democrats for this as if only Democrats have agency. Why didn't the Braves save the Mets last season? At the very least, you had to give them something. They didn't. Democrats are not suckers. 

Note that "House" rules don't deny people indicted for crimes with a certain level of seriousness the right to leadership positions. As the edit shows, it is a House Republican Conference rule. Makes it easier to change. I don't think that alone would block Trump from being speaker, but it helps. 

Monday, October 02, 2023

Florida Executes Michael Zack

In two orders separate from the main Order List, the Supreme Court rejected Michael Zack's application for a stay of his execution and requests to take his case. Chris Geidner summarized his claims: 

Before the U.S. Supreme Court currently are questions out of state court about whether lower courts properly considered the effects of Fetal Alcohol Syndrome on him and whether the fact that a nonunanimous jury recommended death renders his sentence unconstitutional and out of the U.S. Court of Appeals for the Eleventh Circuit about whether Florida’s clemency process violates due process guarantees.

The nonunanimous jury concern was flagged in the past, but the Supreme Court as a whole showed no concern about it. 

In general, the Supreme Court (including as a whole the liberals, with a few exceptions) followed the past of providing unexplained final write-offs of executions. This is wrong. A brief explanation is warranted.

Michael Duane Zack (there is a rule that people executed should have three names) murdered two women in 1996. He probably also raped both though only one case could be proven. That was the capital case; the other got him life imprisonment. Over twenty-five years later [insert usual arguments against executions after so much time], his time ran out.

Florida executed him. Society did not benefit much at all. 

First Monday In October (Not the Film)

After the NY Jets cruelly gave fans hope only to have their QB make a mistake and have KC not give the ball back again, icing the game, we have the beginning of the new Supreme Court term.

==

ETA: Regarding the last term, all of the opinions have been assigned a volume, with a preliminary version posted on the website. 

First is a long clean-up Order List. The biggest news might be that Clarence Thomas, for the first time in a 1/6 related case, recused himself. It involved pal John Eastman (also close to his wife, it seems) and maybe you would think that would factor in as does the fact Ginny Thomas also was questioned by the 1/6 Committee. But, Fix the Court notes that he didn't recuse in the past in cases involving the committee.

Thomas not explaining why he did not take part is not unique. Kagan in recent months a few times (two or three) noted basically the category of reasons she checked off when recusing. No other justice explained their decision. Alito (as a few did in recent decades) noted why he did not recuse. This is not a great policy.  

(The Supreme Court also didn't drop a press release or media advisory noting that they went back to live audio during oral arguments. It would be a simple act of clarity and openness to do so. It only noted it on the calendar, which is a more hidden location.)

Thomas did take part in the decision not to preliminary intervene in a 14A, sec. 3 case. Many think there is an appearance of impropriety to him taking part in any 2020 election dispute, especially involving the insurrection, after it came out that Ginni Thomas was a strong election denier. 

===

The first oral argument was a statutory case that came off as a somewhat absurd law office hypothetical. Barrett dropped the term "Calvinball." But, we should not forget that the case ultimately involves the reach of a criminal justice provision that is of some importance.   

===

Meanwhile: The soon-to-be new senator from California sounds like a promising choice, checking boxes like forty-something, black woman, labor advocate, women's candidate supporter (EMILY's List), lesbian, and more.  

Strict Scrutiny Podcast dropped the news that the mother involved in a tragic atypical case involving a truly late-term abortion was sentenced to two years in prison for her crimes. 

I think that is probably too much, but a summary about some woman who gave abortion pills to her teenage daughter and flagging it as the danger of post-Dobbs is rather misleading.  The facts here could be (and should be) deemed illegal under Roe v. Wade and is not a run-of-the-mill case. 

I agree with President Biden's statement on the budget.