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

Friday, May 26, 2017

Memorial Day

Best way to honor the memory of the dead might be to promote peace.

Tommy Arthur Executed

A 75 year old's luck finally ran out after he was executed for a 1982 murder for hire scheme. I think at this point executing him is gratuitous. Sotomayor (thanks Obama) was the only justice on the record dissenting, still concerned about the usage of midazolam and specifically not allowing his lawyers use of a phone to call a judge if something came up. Final result expected but was drawn out over evening and was executed at last minute.

Thursday, May 25, 2017

4CA Decides Travel Ban Case

[There is also the special election in Montana, the end result more depressing after eventual winner attacked a reporter on election eve.  The positive is that it was a lot closer than it really had every right to be and we are not talking swing-vote territory in 2018.  The guy did lose a state-wide race for governor, but that's a more important position than one of many.  It also is a continual chain around the Republicans' neck. Still, depressing.]
Additionally, Judge [Roger] Gregory places a great deal of weight on the fact that Trump did not consult with his own agencies before announcing a sweeping change to the nation’s foreign policy. The Trump administration's claim that the Muslim ban was necessary for national security reasons “is belied by evidence in the record that President Trump issued the First Executive Order without consulting the relevant national security agencies, and that those agencies only offered a national security rationale after [this executive order] was enjoined,” Gregory wrote.
The ruling en banc (10-3, two conservatives recused, one having a family connection to the government advocate) in the travel/Muslim [to make a conclusion] ban case accelerates the trip to the Supreme Court.  The Think Progress piece might not fully address the possibilities (see below), but is a helped summary.  See also, here and related links. I admit to leaning toward advocacy here so these links lean in a certain direction.

First, the author of the main opinion is notable as the first black judge to serve on the Fourth Circuit  and conclusion of a long fight during the Clinton Administration.  Clinton finally recess appointed him at the end of his term and President Bush re-nominated him as an early sign of comity (the Senate not yet in the Democrats' hands).  Republicans argued that there were enough judges already, apparently the number of slots advisory based on need or something. This approach was appealed to again during the Obama Administration and factored in to the filibuster rule change (whatever it was technically, that is what it was in practice). 
Except that, if four years from now the United States is looking at President Rand Paul and Senate Judiciary Chair Chuck Grassley, the question of whether Chairman Grassley honors the single-senator veto will not be up to anyone other than Grassley himself.
The confirmation of Judge Gorsuch continued that rule change policy, if without similar credible justifiable grounds except for raw power.  The practice of blue slips continues to be a question, but that earlier warning appears to have been prescient except for the "Rand Paul" part (too optimistic). Somewhat as suggested in the earlier linked discussion, the concept of a blue strip (which the "blue" party now appreciates, but maybe long term might not) is not really absurd.  It is how it is carried out so that one senator (or two) has a full effective veto instead of in effect providing a sort of rebuttable presumption that something is wrong with a nominee that is of specific concern of the senator's state.  This to be is a possibly useful division of labor if not abused.  But, like the filibuster, it has been.

Moving on from this relevant aside (note the membership of the 4CA), see also here (various comments) for discussion on the travel ruling.  As I repeatedly do, find fault with the suggestion by the self-labeled Never Trump conservative author of the piece (if one who at times is in "well it's done" mode, including calling it absurd or silly to cite emoluments, possibility of 25A removal and other things)  that the case at the earliest would be heard in December. The full court of appeals addressed the revised order by late May.  It is remarkable really how quickly some of these court rulings are coming down though it might be a mixed bag on this specific matter.  If they wanted to, the Supreme Court need not wait that long.  Of course, it might be moot to some degree by then. Also, though the end result is probably expected, there is a 9CA case to be decided.

The professor elsewhere rejected the idea of using campaign statements, which is addressed in a comment. But, it's useful to note that there is a middle path here.  One concurring opinion, e.g., argued that we should and could merely rely on statements after he took his oath to reach the same result.  Candidates might change their mind or the like once they are in office, and once they are their words and actions have an additional level of importance.  Likewise, by my count, more than one concurring judge here argues Trump lacked the power to do what he did on statutory grounds.

This provides the Supreme Court a possible means to set forth a limited judgment, even if they makes some references to concerns about the religious animus point.  The specifics on that point is beyond my expertise but it has been offered as a grounds of judgment here and in the process furthers process and separation of powers ends.  As noted early on, Trump here rushed the order in a way criticized as slipshod though advancing his overall goals perhaps of making things more personal.  To the degree this is allowed, it still is a perilous approach especially by a this buffoon.

The broader approach argues that under Justice Kennedy's (with Alito though he might not go along if it is used to overturn the government) concurrence in Kerry v. Din, executive discretion involving entry on non-citizens has to meet some sort of minimum legitimate purpose test. This is a favored device of Kennedy in particular as seen in multiple cases involving the rights of homosexuals.  And, those cases also show that it has some bite, at least in cases held to be extreme.  This also gets around a 1970s case that gives broad discretion though one might [especially in respect to 1A interests] push against its validity today.

The statutory argument might be harder to make since constitutional avoidance principles counsel applying it not in the best way but in a reasonable way that avoids such problems.  But, there is comparable concern about avoiding a decision that the government is acting unconstitutionally.  Thus, the more limited judgments here are intriguing. As a whole, there are a lot of eloquent remarks, including the first few sentences of the main opinion itself.  Events meanwhile continue to occur.

Wednesday, May 24, 2017

Jane Austen, the Secret Radical

As noted here, this book lays it on a tad thick, including some suppositions. The basic idea that the books are deeper than one might think is not novel, though you might think so at times. Still, a lot of interesting stuff, especially if taken with salt. She focuses on the six completed novels, so Lady Susan et. al. are barely noted. A bit on Sanditon. The stuff in Jane's voice (each chapter starts with a passage with this conceit) seems a tad forced.

Monday, May 22, 2017


Various notable cases still up in the air (including the cake-shop case) but Rick Hasen argues it actually was a good day [Gorsuch/Thomas want to take case; Gorsuch conservative, duh watch] for voting rights [Thomas joins liberals perhaps since it furthers the strict scrutiny for any sort of race usage principle]. Kagan v. Alito is fun. Other cases appear dull/uncontroversial, including (yes) a limited process by mail rules opinion.

ETA: Election Law Blog now has various perspectives on the case. The patent case is of significance in that area; the other case in a limited way just clears up a dispute.

Sunday, May 21, 2017

Terry Collins

Terry Collins now has been a manager with the Mets longer than any other and (not leader here) is one win away from 500 with them. After leaving the Angels (who the team just played) under negative circumstances, just becoming a manager again looked like a longshot. Overall, with the messes he had to handle, his tenure is appreciated. He made bad calls, but repeatedly, it is more a matter of a bad hand. This season included. Good luck.

Trump Abroad

It is appreciated that a special counsel was appointed, eventually, to investigate Russia's connection with the election and Trump though it shouldn't mean Congress (and others!*) should stop investigating.  As that link and this more liberal leaning blog notes, someone appointed by the Trump Administration (or the executive itself) with a criminal investigation mindset does not get to all the issues, including political.

Meanwhile, Trump has gone to meet with the Saudis.  First, we have the usual hypocrisy related to funds given to Ivanka supported fund.  (Trump also in the past called out Michelle Obama for not covering her head when she went to Saudi Arabia; no prize for lack of surprise Ivanka and Melania not doing it either)  Some are glad Trump was able to read a speech though also making fun of the photo here involving the Global Center for Combating Extremist Ideology.  The speech itself has some issues as does the weapons deal agreed to that was less concerned with human rights concerns than the still concerning Obama Administration policy.

A bit from the speech.  There is the usual b.s. self-praise (“new spirit of optimism is sweeping our country: in just a few months” etc.) and this bit:
A better future is only possible if your nations drive out the terrorists and extremists. Drive. Them. Out.

    DRIVE THEM OUT of your places of worship.
    DRIVE THEM OUT of your communities.
    DRIVE THEM OUT of your holy land, and
Repeated caps in this speech. This is a rather troubling bloody tone though a bit ironic given the “extremists” found in Saudi Arabia leadership. There is also this:
If you choose the path of terror, your life will be empty, your life will be brief, and YOUR SOUL WILL BE CONDEMNED.
When I want to know what happens to my soul, Trump is the guy I’d go to. There is a lot of basic boilerplate to this speech (including nice noises about Islam that seem fake coming from Trump) but these excerpts suggest some dubious aspects.  There is a lot of fun with that stupid looking shiny globe thing referenced above, but let's not ignore the substantive things going on.

One tidbit covered in one of the articles linked is that there is a suggestion the Saudis will invest a lot of money in U.S. infrastructure, which would appeal to the Trump Administration given its plans to have a major infrastructure bill (as Dear Leader types like him tend to do to get populist cred with more ability to spread his seed ... mean name ... around too, I gather). Also, there is concerns with Yemen (the kill! kill! kill! tone is trouble there in particular given Saudi's role), Iran (which clashes with the Saudis) etc.  A credible person in the White House helps here.

The bottom line is that this is hard stuff, the U.S. policy has issues as is and Trump being there just makes it worse in certain ways.


* This would be particularly the press, though there is some "now a warning" feel about it being so very excited now that Trump is in office.  This post is not meant to cover all the bases, but should note that the "now a trend" habit of not having U.S. press at major events (even if Russia press is invited!) is horrible. 

Friday, May 19, 2017

On Being Raped

Almost a long essay, this discusses a (male) professor's rape by a priest at 18 and the long aftermath (up to the present). Tough reading but eloquent. Interesting the book doesn't cover telling his wife and/or the specific decision to tell.

Wednesday, May 17, 2017

J.W. Ledford Jr. Executed

As noted in the article here, after twenty-five years in prison [at some point, just keep on going], his last minute appeals failed. First, he tried to push the "no execution" line from 18 to 21. There is evidence for that but the law has not really caught up. Second, he argued the lethal injection drug (not the one getting so much attention recently) would clash with his other medication. Another fail on the "I want the firing squad" argument. Tinker tinker.