Election Time Already?

And Also: Justice Thomas on Bush v. Gore: "What are you supposed to do when somebody brings a lawsuit?" Thomas asked University of Kansas law students. "You hear people say the Supreme Court jumped into the last election. I find it very ironic that the very people saying judges are interfering are bringing lawsuits. ... What do you think? Donald Duck is going to decide it?" This is simply laughable: not only did others also bring election lawsuits in 2000 that the Supremes declined to take, every year they take but a tiny portion of the lawsuits available. Remember to turn back your clocks ... well, except for those who don't.

Slate writers do a fairly good job explaining why we should vote for Sen. Kerry on Tuesday, especially Phil Carter (military policy/rule of law) and Dahlia Lithwick (rule of law/secrecy*). I think Sen. Kerry sometimes doesn't get the credit (and here) he deserves, though, yes, I wanted someone who provided a clearer case and more inspiration.

And, yes, his caution and inherent conservativism (ironic, given the attacks on him) will require activists to push him in the right direction. But, the point is that he actually is not a lost cause. Reason, debate, and adherence to basic rules of the game, not just the end result are not foreign concepts to him. Caution also trumps recklessness. And, Kerry/Edwards is on the whole on the right side (or closer to it) of things while having the potential to bring true competence and honor back to the Oval Office. Sheesh ... deja vu.

This is why those who do not vote against him because they feel he is just like President Bush (Naderites etc.) are deluding themselves. If the state is not a battleground, I think it's fine to vote against Kerry, if you want to vote your conscience and send a message of what can be. I find Nader mostly a vanity candidate without a real movement, one with a misleading message that ignores the true difference in this election. This is counterproductive at the end of the day as compared to Greens, the Working Families Party, or heck, even the Socialist Party, who are a little more honest, and say that they just want more than what Kerry offers.

But, vote your conscience, it's a free country. Just be honest about it, okay? Republicans have somewhat of a problem in being honest, using lame and unconvincing reasons to vote for somone they know is a lousy choice. Some Republicans realize the craziness of this, and like swing Democrats often do in election Republican presidents, support the other guy. This not only is best for the country, but probably best for their party. If you don't want to vote for Kerry, vote Libertarian or something, unless you are truly convinced Bush is the best option available.

A primary reason not to vote for President Bush is that 9/11 did not change everything. It changed a lot of things, but basic rules of the game still apply, including (some assumptions aside) Bin Laden (looking "hale") still being around to make campaign videos is not a good thing. Nor, is the fact he seems to make more sense in it at times then our leaders, such as their claim that the terrorists "hate freedom" vs. their particular policy concerns and other complicated factors. Or, President Bush continuing to read a little girl book about goats after being notified of attacks, and thus giving terrorists more time, justifiably makes him a laughingstock. And, deserving of our scorn.

Just as Bush supporters oppose Kerry for a lot more than his stance on terrorism per se (the "anybody but Kerry" and "anybody but Bush" brigades are probably rather equal in size in their relevant parties), there is any number of reasons to oppose Bush. The President's incompetence is not total, but it is serious enough to belie to claim that we need to ignore all his faults because he surely is better than Kerry. This is almost amusingly obvious. All the same, what President Bush is good at must be kept in mind too, and it is as troubling. This includes the subject of a letter to the NYT by Burton Glass of the Center for Investigative Reporting:

The president's nominees to federal circuit courts have been judged conservative for their stands on hot-button issues like abortion. But a review of their financial disclosure forms and Senate questionnaires reveals that the nominees are more notable for their close ties to corporate and economic interests, especially the energy and mining industries.

Some of them were paid lobbyists for those same interests. Further, the nominees with industry ties were overwhelmingly appointed to circuit courts regarded as traditional battlegrounds over litigation affecting these industries. Independent observers we've talked to who follow the federal bench believe that the extensive corporate involvement among so many of the nominees is unprecedented.

It is disconcerting that the move by Senate Democrats to in some small way truly challenge such excesses has not been better explained to the public at large. Ditto any number of other problems with the administration and bunch now in party, but that is no reason to refuse to support their loyal opposition. This includes key Senate races, the matter even closer now with questions arising about the health of a key incumbent that once seemed a sure win for the Republicans. And, local races too, often where democracy truly feels close to home.

I, personally, will plan to have something on hand to drink -- for celebration or whatever.

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A word on the many ballot measures, some involving confusing (and obscure) measures that have no business being left to voters who basically are unaware of the key facts. I'd say the same for judicial races. There are many measures a lot simpler to understand, including those involving gay marriage, medicinal pot use, and smoking bans. Though I accept the practice of legislatures offering certain types of referenda to the public, ballot initiatives seems to me a quite questionable practice.

We have a republican form of government, one in which direct democracy is funneled through intermediate bodies, including state legislatures filled with representatives of a great range of interests. Interests that have to debate, deliberate, and compromise. Such bodies ideally also have some degree of special knowledge, such as on how bond measures should be set up (they are filled with lawyers and MBAs, people who thrive on such things). Thus, having the people themselves (likely pushed upon by certain groups or rich individuals) raise single issue ballot initiatives that have an up or down vote by the public at large is a dubious enterprise, even if some of them might have merit.

Anyway, voting assumes that Lincoln's principle of "government of the people, by the people, for the people" truly means something, and it is useful to recall as well that his closing thought that it "shall not perish from the earth" has remained true this long. No matter the outcome, no matter how hard it seems at time, this fact helps keep things in perspective.

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* As noted by Secrecy News: "Bush Administration secrecy [though probably constitutional in most instances] places a premium on strong executive branch authority at the expense of congressional oversight, freedom of information and even such mundane things as making the President available to answer questions from the press. As a result, the character and the possibilities of citizenship in our democracy are increasingly constrained."

Is The Electoral College Actually Beneficial (Not Really)

I discuss the Red Sox victory here; Norman Mailer's appearance in Gilmore Girls encourage Slate's entertainment writer to sing its praises here. The guest appearance was a nice touch in an otherwise bland episode with the additional annoyance of the growing subplot of a Tristan-like WB pretty boy character. Should I fear for the future?

Much has been said in opposition to the Election College, so it is useful when arguments are made in support of it, in order to see how convincing they are. Benjamin Zycher provided a senior fellow at the Pacific Research Institute for Public Policy, a conservative free market think tank one such argument in a guest piece. The nature of the organization might be unknown to readers of the piece, and its relevance to the immediate issue is somewhat unclear.

Of course, the current occupant is in the White House because of the Electoral College, but some scenarios have him ironically losing in 2004 on account of it -- turn about is fair play? And, since the "popular will" both is checked by the Electoral College and is not so gung ho about some of PRIPP's policies, this too makes it useful for readers to be aware of the background of their organization. The same would apply no matter what the ideology, and others might think the liberal nature of a writer on gun control would also be helpful to know.

On to the arguments of the piece, one subtitled "Forcing Candidates to Broaden Their Base Reduces Political Extremism." The author suggests the system can

provide candidates with incentives to broaden their geographic and political bases and to steer toward the center rather than the extremes of the political spectrum.

This, the founders felt, would help reduce the sources of political strife and, in the extreme case, avoid civil war. They understood that passions and irrationalities can afflict mass decision-making under direct democracy.

The geographic diversity appeal of the Electoral College turns out to be less useful when we look at the actual results. From the beginning, electoral votes tended to be grouped by section, the winner take all system only furthering this tendency. For instance in 1796, John Adams picked up a few stray electoral votes (like one can now do in Maine and Nebraska) in the South, and thus won the presidency. Such a result led to the move toward winner take all systems in which even a bare majority of the popular vote statewide (including results involving a few regions in a large state like California) will result in all the electoral votes going to that candidate.

This plus the reality that only a few "battleground" states are truly in contention, results in selective campaigning. In fact, in large states, a candidate might benefit from campaigning in select areas of the state, if the votes would add up the right way. And, as in 2000, some regions vote Democrat, some Republican.

The idea that those with support favoring certain regions are burdened by the system just does not match history. The example of Al Gore in 2000 is used, but again, it doesn't help his case. At best, it proves supports the idea of an Electoral College because the stars (popular vote) aligned perfectly. At worse, it put in the White House someone that didn't even win in Florida, a controversy that probably would not have arisen if we had a popular vote system. And, given a mere thousand vote swing, and Gore would have won the state and election.

Colorado will vote for an initiative supporting a system that would proportionally allocate the electoral votes, which would arguably help geographic diversity. Candidates would benefit from campaigning in states that might not vote for them overall, but in which they would pick up a few electoral votes, especially if we are talking about large states. Zycher notes such a system, which is surely allowable under the Electoral College, would "induce candidates to shift their efforts and resources to uncompetitive states, where there are large numbers of electoral votes to be had."

It is unclear if he finds this a good idea or not. Nonetheless, he does note the current system encourages candidates to move on to another state once they determined they have a plurality. A close election, however, makes such assurance often unlikely, resulting in selective campaigning in a few key states. And, quite likely both sides will in fact compete over a few states, ignoring chunks of voters elsewhere in the process. Both systems could thus promote targeted campaigns.

The Electoral College is also said to motion a centrist political system and limit the power of third parties. Current realities again lead one to question this argument. It is true that our system promotes centrism, but it is done in any number of ways, and the importance of the Electoral College is rather unclear.

Second, our current political system in fact promotes the power of special interest groups, especially in the primary campaigns. Next, a closely fought election does raise the importance of third parties, which again are limited by any number of factors. For instance, the fact so few local and state officials are members of third parties surely is not a result of the Electoral College! And, of course, some might say third parties are not exactly a bad thing.

The importance of "passions and irrationalities" in the current system surely suggests that value leaves something to be desired. The Electoral College in fact is a grand anachronism, a mere shadow of how it was originally intended to be carried out, including the use of electors tied to popular votes. And, it sets up a system that lays in wait, jumping up with some unintended consequence every so often. A few examples or near misses of the "wrong" President being elected, "rare occasions," or not (toss in just one near miss, we are talking about elections affecting ten percent of the occupants of the office).

An elector in this election suggests he might vote against the candidate he is aligned to, an election which sets up various 269-269 scenarios. The system also has tie breaker that results in a few members of the House of Representative deciding things, surely as troubling as "disproportionate bargaining power to regional and ideological fringes" supplied in runoff election scenarios. Scenarios much less likely if instant runoff voting is used. And, our current system sets up just such bargaining power scenario, including a few voters in say Nevada being more important than millions in New York, a state likely to be a sure Kerry win.

He concludes:

Yes, the electoral college is easy to poke fun at. Yes, it occasionally frustrates the will of the plurality or majority. But the founding fathers understood the dangers of direct democracy and struggled to create a system that reflected the will of the people while constraining the majority. The electoral college serves those ends well.

The current form of the Electoral College really does not serve those ends well. Not only is it more of a direct democracy than the founding fathers surely would have liked, but current realities make many of its original purposed outdated. This last point in fact was not even mentioned by the editorial, such as the lack of a truly national media and modern communication systems, or concerns arising from slavery or a nation much more state centered than it is today.

An editorial can only do so much, so I don't really mind the fact it was not discussed, but it should be underlined. The main point is that even if we accept there is some benefit to the Electoral College in theory, in practice, the benefits turn out to be quite debatable. And, the problems remain as well, resulting in a cost/benefit analysis that makes the system at best a wash, at worst, a troubling outdated system with a dangerous down side.

Causal Falsehood and Character

Nicholas Kristof's column today tries to have it both ways: Bush isn't a liar, but has a "casual relationship with truth." The shading is important in his opinion because it is such a sensitive topic, and thus we need to be cautious not to use counterproductive emotional laden language. Perhaps, but his column is a rather lame attempt to prove the point. A column perhaps especially worth examining because slight alterations might make it a fairly effective pro-Bush piece.

He starts with a pretty ridiculous example: a "charming little story" about a stuffed dog that takes up a significant amount of the column. The example is trivial and the fact there are various accounts really doesn't matter -- it is a typical example of a cute story that is told in different ways, the exact details not really mattering. A person who provides one version is not guilty of a "causal relationship with the truth," so the example turns out to be meaningless. It only becomes such once little parables told to express "mega-truths" concern serious matters, such as the presence of WMDs and such.

Kristof then notes that we all sometimes ignore the facts, discount data points, when we formulate our views of reality. No shit. What example does he provide? Military intelligence tests in the 1960s put Bush in a higher percentile than Kerry, but "most liberals" still think he is a nitwit. First off, I would challenge the easy use of both "most" and "liberals" -- many liberals surely do think he is smart (in a fashion, the term having various applications) and many non-liberals think he is rather dim. Anyway, some intelligent test in the 1960s does not prove one or the other is a "nitwit." It's a moronic comment to make.

And, then he truly becomes President Bush's ass kisser:

In fact, I'm convinced that Mr. Bush is not only smarter, but also a better man than his critics believe. Most important, he's not a panderer. While Mr. Kerry zigs and zags on trade and Middle East policy, Mr. Bush has a core of values and provides genuine leadership (typically, I believe, in the wrong direction, by trying to reshape America and the world according to a far-right agenda).

This is truly a gratuitous/ non sequitur ass kissing comment to make in a column entitled "Pants on Fire?" Just how does he reach this conclusion? What "critics" are we talking about? And, the comparison is patently false, so much that it truly pisses me off. President Bush flipped-flopped repeatedly, including on the 9/11 Commission, the Homeland Security Dept., the reasons for the war, and so forth. Sen. Kerry has "core values" as well, and it is a blatant libel to suggest otherwise, surely by the mere note of Kerry's positions on two issues (the zig and zag nature of such at least to some degree exaggerated).

And, "genuine leadership" is a bit much too. What exactly does it mean? I assume "casual relationship with truth" = "genuine" in Kristof's twisted calculus because Bush believes he is putting forth a "higher meta-truth." Such Orwellian fantasy is required to support Kristof's kudos on how good of a man Bush is, how great he leads, surely as compared to Kerry!

I was informed that the Denver Post supports President Bush because of his decisive leadership. Kristof praises this aspect as well, even in the promotion of foolish and crazy ends. After all, "his grim willingness ... underscores a solidity of character and convictions." Given Kristof is not a total nitwit, he does come out on the side of the "clear-eyed thinker." All the same, it is a somewhat skewered example of character to not be able to accept reality, in fact, to develop an administration that in many ways goes out of its way to remain blind to it.

[The exact details on the missing explosives are somewhat murky, but the President's response to criticism on them suggests the nature of this "character" Kristof admires. Since clearly he didn't do anything wrong, those who suggest he might have are the problem, and we need to keep information close to our vest to stop "them" from benefiting. Dahlia Lithwick felt when a justice tried another way, that is admitting he is human, it was "weird." This runs to the heart of the problem as this thread discusses.]

And, yes, examples can be raised of the solidity of Kerry's character and convictions (e.g., service in Vietnam and afterwards, votes against DOMA and the 87B, his support of abortion rights, and so forth). But, Kristof is for Kerry, so apparently has to prove his fairness by kiss up to Bush. President Bush does not deserve all these kudos because of his stubbornness.

A causal reader of Kristof's column can very well find it quite positive to the President. Liberals are criticized, Sen. Kerry is demeaned, the primary example of Bush's problem with the truth apparently is a story about a stuffed animal, and he sounds like a pretty good guy (smart, better than his critics think, not a panderer, has core values, and provides genuine leadership). All a pretty blatant example of overkill at trying to sound balanced, so crudely that it doesn't pass the smell test.

Finally, to get back to the apparent point of the column, Kristof doesn't call the President a liar because "reality to him is not about facts," but a set of higher truths, so his misstating the facts isn't really lying. I too find the word "liar" results in emotional reactions that often tend not to further debate, but this doesn't really work, does it? Saying Bush "isn't truthful" really doesn't help the tone of political discourse any more than calling things he does foolish or crazy.

And, to the average person, it sounds awful like "lying," anyway. If I think you are an asshole (mega-truth), wrongfully (including without proper evidence) implying you surely stole from your sister is still a lie, even if used just to prove the point. And, at some point, Bush is a "nitwit," if he can deny reality so much that he can convince himself of the truth of all the things he has claimed to be true. So, he's either a liar, or not such a good man after all -- take your pick, Kristof.

I'd add that the co-host on the Al Franken Show today suggested Kristof doesn't think non-malicious statements are lies. This appears to me a misreading of the editorial, though it might be what the editorialist believes. If so, it too is ill advised. We lie all the time in a non-malicious manner, such as the well-known "white lie" of the sort that you tell to a loved one so as not to hurt their feelings.

It's silly to deny we are lying just because the lies probably do not do much harm. And, it's silly to deny that Bush truly has a character flaw because he genuinely believes in his wrongful conduct. Such analysis would hold firm tyrants in higher regard than decent if flawed democrats, especially if you did a piss poor job in comparing the records of the two individuals.

Odds and Ends

A Bit More: As I noted, there are reasons to vote for President Bush, just not very good ones. There is the "decisive" argument, as if recklessness is fine, as long as it is decisive. Our founding fathers had the opposite in mind: they didn't quite trust authority, feeling it better if it was a bit weaker with some checks and balances. Even in wartime. Others fully admit he is trouble, but put aside their "liberal" side because Bush is good on the "War on Terror." Kevin Drum cites such an "Armed Liberal" (I'd counter with Gen. Clark, quite armed, pretty liberal) here, also arguing the evidence actually goes the other way. Also, here's a good reason Bush v. Gore was ill advised, even if you liked Bush.

Shopping: Though it's somewhat hard to believe, Xmas buying season is not too far off. I myself have traditionally did my catalog shopping around the second week of November, which is quickly approaching. Thus, it is not surprising that there were various little gifts at the Walgreens that I stopped by yesterday. It didn't have what I wanted per se, but I wound up spending around $30 anyway -- life is like that sometimes, isn't it?

[I particularly liked the magnetic dart board in a tube, getting one for myself and one as a present for an upcoming birthday. My landlord will appreciate the magnetic part, given my aim. I didn't pick one up, but they also had miniature versions of those running water/stone desktop relaxation things. Our economy would collapse if we only bought things we truly needed. ]

Eating: I find Chinese food to be a good deal both for lunch and dinner. Not only is it a good food for delivery ($10 will give you dinner for one, $20 and change, dinner for three), but it's just a good deal period. Not only is there various vegetarian options (especially tossing in shrimp), you get a lot for your money. I find fast food hamburger places rather ridiculous for any number of reasons, but the food/cash ratio alone counsels other options, including Chinese (or pizza or whatever).

I stopped at a favorite spot for lunch today and looked on as a older businessman type (turned out to be a lawyer) amused himself. Another guy at the takeout place said he looked like Dick Cheney, and there was a resemblance. Anyway, he asks if there were any hungry man specials, vegetarian. Then, he asks if the place takes food stamps. And, finally if they could reserve a table for him, since he had to step out for a minute. Not surprisingly, he had to talk on his cell phone as well.

When I grow up, I want to be just like him ... you know, with a better sense of humor, and more cell phone etiquette. Or, make enough so that my sense of humor is more appreciated. Money helps even the most deluded sorts to be quite funny and their point of view accepted with little challenge ... or so, it sometimes seems.

Political News: Some accounts suggest that George Bush will win the popular vote, but lose the electoral vote (the same was said in October, 2000). This might finally lead to electoral college reform and will do, but it is quite distressing. Where exactly are these idiots? The accounts suggest Kerry will receive narrower wins in certain states, while Bush will get stronger wins in others, but Kerry would pick up some votes in enough key states to win it all.

If Kerry will pick up said votes, why will he still lose them in other states, including states that went to Bush in 2000? Is the fact that non-swing states (like my own NY) don't have to deal with those stupid campaign commercials have something to do with it?* Is the President's record so good that red state votes will go out of their way to vote for him to such a degree that his numbers will rise up? Oh well, I assume there are reasons, though I honestly don't care enough to study poll analysis (inexact for various reasons,) enough to determine them, but it does seem just a tad crazy. Anyway, I wonder if Tim Russert will be up there with his little electoral vote blackboard again this year.

Oh, and if Kerry does win, want to bet the press will be a bit harder on him, to prove they aren't total incompetents? Always the case -- fighting the last war.

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* A recent one involves wolves, which Sen. Kerry apparently allowed to threaten our sheep, or something. The ad notes he cut funding "after the first terrorist attack" (the one in 1993), not mentioning that President Bush's new CIA director would have cut funding more. So, that would make who weak on terror? Hmm. Oh, and that the funding was for something not being used anyway. It has the required scary voiceover and images, apropos for the Halloween season [Kerry will be Frankenstein, Bush will be either Beavis or Jonathan Winters]. Full of crap too, but that's another matter.

"A small core of conservative administration officials"

Movie: Sideways started off a bit slow, though had a great sense of place and character from the very beginning, and saves some truly hilarious bits for later on in the film. The movie's charms are especially expressed by the performances: Paul Giamatti (emotionally torn wine loving schlub), Thomas Haden Church (husband to be, shallow cad), Virginia Madsen (possible savior to schlub) and Sandra Oh (sexy local cad hooks up with). I had mixed opinions of some of Alexander Payne's past work (About Schmidt, Election, Citizen Ruth, etc.), but this is a gem. And, surely a boon to the wine industry.

NYT has a two-part article on the creation of the military tribunal system in the Bush Administration. A conservative leaning bloggist summarizes it thusly: "the legal strategy took shape as the ambition of a small core of conservative administration officials whose political influence and bureaucratic skill gave them remarkable power in the aftermath of the [9/11] attacks." He follows up with the comment that it is mentioned that even Attorney General Ashcroft felt things might have gone too far.

And, now we hear that the same "small core" has been at it again. The torture memoranda, refusal to respect international law and institutions (or have a certain degree of due care), and dishonoring of basic civil liberties is a major reason to worry about this administration. Of course, their penchant for secrecy is a major issue here. All of these things are also involved in some fashion in the disappearance of close to four hundred tons of explosives in Iraq. This includes lack of due care, cover-up activities, and refusal to take proper advantage of the resources and warnings of international institutions.

[The true problem is not that some material was lost in the fog of war, though the fact the war was unnecessary means they deserve less of a pass. The problem was their failure to heed warnings and then trying to cover-up the fact to the degree that they pressured the Iraqi government to not reveal what happened. And, then, try to claim superiority in the area of foreign affairs and terror fighting. Imperfection mixed with lack of humility mixed with failure to admit error mixed with going it alone (with a small core often in control) just crosses some line, even if you are sympathic (unlike I) to their general philosophy.]

Remind me again: why exactly are people voting for this guy? I'm unclear the net value of voting for someone even many conservatives argue violates conservative principles such as fiscal responsibility and restraint in foreign affairs (America #1 sure ... America going on reckless foreign adventures? not so great). Is the idea that President Bush is a man of faith? You mean as compared to a church going Catholic who spoke of his anti-abortion personal beliefs? There are reasons to vote for the guy, not that many are that good, but it's sometimes hard to think of them.

True libertarians might not like Kerry, but Michael Badnarik (Libertarian Party) would seem to be the true alternative. Given the restraint of a Republican Congress and the fact fiscally, Kerry might be more responsible (some rhetoric aside), the fact the vote might help him is not really too bad, is it? Also, unlike Nader, Badnarik is not only on all the state ballots (except for New Hampshire, where write-ins are possible, and Oklahoma, which is being litigated), he is a head of a true party. His candidacy is not some sort of vanity effort. And, since the his party is split over abortion, Badnarik not even pro-abortion rights (more agnostic) as a true libertarian arguably should be.

Back in 2000, a libertarian candidate was the difference in one state, leading to a split US Senate (later 50-49-1, Democrat). Nader supporters might sometimes go around saying his candidacy might actually hurt Bush more, but listening to Nader talk about the need for stronger environmental regulations and such (his specialty), I find this somewhat hard to believe. Badnarik ... now he might do the trick.

Given how the Red Sox are doing, who knows what will happen?

Something In The Way She Moves

Sports: Roger Cedeno, who ended his term at Shea being nearly useless, is the spark that leads the Cards to the World Series, while their winning pitching in Game Six was the loser in Game One on Saturday. And, now two more games that NY sports teams should have won. The NY Giants gave their game away with a blown score at the end of the First Half turning out to be the beginning of the end. The Jets coughed up a sure score in their first possession, allowed the Pats to get a quick score at the end of the First Half after the Jets put forth an impressive drive for the lead, and then nothing happened. No scoring. What a pathetic display down to the inability to stop the Pats at the end to try for one more shot at tying it. No kudos for the scoreless Second Half: the Pats had enough to win. That's all they wanted, that's all they needed. They played when they had to: NY has not for around a week now.

Dance as entertainment is one of the earliest forms of expression known to man. Its written history goes back at least as far as fifth century classical Greece, where Euripides described the frenzied fertility dance in his drama Bacchae. Dance also has biblical roots. See e.g., Psalms 149:3 ("let them praise his name with dancing, making melody to him with timbre and lire!"); Psalms 150:4 ("Praise him with timbrel and dance. . ."). In ancient Rome, dancing was an [**15] important part of the annual festivals of Lupercalia and Saturnalia which featured wild group dances that were the precursors of the later European carnival. Eroticism in dancing also has ancient origins. The modern-day belly dance, or baladi, can be traced to the Egyptians of the fourth century, B.C. Buonaventura, W. Serpent of the Nile (1990). From these ancient roots one can trace the forms of dance native to America. Indeed dance pervades our culture, from the American Ballet Theater to Broadway's A Chorus Line and West Side Story, from Hollywood's Astaire and Rogers to the local discotheque.

-- Glen Theatre Inc. v. Civil City of South Bend

There is a lesson somewhere in the fact that the most well known case involving dance that reached the Supreme Court dealt with stripping at the Kitty Kat Lounge. The Supreme Court, unlike two appellate panels, decided that nude striptease was not constitutionally protected enough to negate an ordinance against public nudity applied against the club. The Supreme Court, including the sparring opinions of Justice Scalia and White, did provide some interesting reading. Just how the plurality holds up after its morality basis was watered down by Lawrence v. Texas and Justice Souter re-thought his opinion in a later case, is also an interesting question.

The second appellate ruling is chock fill with must read opinions as well, including the majority provided a useful brief discussion of dance, a concurring that gave an example of the "encouraging comments" of spectators ("Take it off; take it off!"), and another by Judge Posner that not only provided an extended defense of dance in all its forms, but ridiculed the brief of the state to boot ("The brief is four and one-half double-spaced pages in length, and is replete with grammatical and typographical errors."). In the midst of all this, Wendy Bonaventura had her cameo appearance, and it is her book Something in the Way She Moves (aka I Put A Spell On You) that inspired this entry.

Buonaventura argues that the "traditional benefits of dance [are] grace, skill, self-expression or improved confidence." The emotional release it provides as well as its sensuality and value as a social lubicrant makes it an important aspect of culture. Dance was often an important aspect of religious rites as well, especially given its sexual (fertility) connations. All these aspects are involved the African trance dance, which with its repetitive movements and driving rhythm leads one to "feel fully nerve-tinglingly alive and leaves you with a sense of profound well-being." One participant felt it a sort of religious experience:

"It's almost a religious experience - if a religious experience is when you let go, you feel the earth under your feet, you feel safe and secure and trusting in your body. When it really is flowing. I feel fluid, boneless. I can feel every inch of my body, every cell. I'm constantly checking in with myself. Am I here? Can I feel this? I could push this, I'll just try this a bit further. And it's not just push, push, push and beat yourself up if you don't get there. It's more a feeling of open up, softer, trust, release."

The primary function of dance is social in nature,* a way to interact with others, and release certain emotions. Thus, dance is an important aspect of culture, and the study of dance must also be a matter of social history. For example, the tango was originally a dance primarily performed by men. The ratio of men to women in mid-1800s Argentina was often quite unbalanced, and tangos often were performed by two men -- each competiting against the other, ultimately to fight over women. The intimacy of the waltz also made this seemingly quite proper dance quite controversial for some time. And, the fear of allowing women to dance in public led to the growth of the use women impersonators.

Dance's value as a social lubricant is quite important, but it is but one aspect of its many uses. Dance also is an important means of expression, both self-expression and as performance art. This is partly shown in social dancing in which cultural and other messages are also portrayed in the process. Each dance has a particular "message," even if just performed in a social context. And, not only do great dancers (including such past greats like Isadora Duncan) express themselves, but social dance is also a good opportunity for the average person to express themselves, their personality. In fact, the author has somewhat low opinion of certain sorts of "high art," such as ballet ("Danse Macabre"): "brainwashed into believing that ballet is the most beautiful and sophisticated of all dance forms, and in time pain and pleasure become inextricably linked in their psyche."

Since no post is perhaps complete without a political tidbit, I'll end with a term that is for some reason quite popular these days for the mixed up goings on in Washington --"kabuki theater." It originally came from a Japanese term meaning "outrageous" and involved a mixture of comic and erotic elements, including ridicule of religious and sexual roles (including via crossdressing). Such mock seriousness and playacting is probably a good way to explain much of what goes on in the corridors of power.

Politics ... the ultimate performance art.

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* DALLAS v. STANGLIN (1989) went out of its way to argue [the law involved regulations of teenage meeting places, regulations that arguably promoted their rights] that social dancing does not raise important issues of freedom of assembly, though two justices reaffirmed that "the opportunity to make friends and enjoy the company of other people - in a dance hall or elsewhere - is an aspect of liberty."

This is a misguided point of view given the important value such activity has to social and cultural activities. If sexual intimacy is worthy of constitutional protection, Lawrence v. Texas, surely social dancing is as well. I'll toss in that even nonexpressive athletic dancing is important to personal wellness to a degree that it is not a trivial aspect of personal freedom.

A Morning At Arraignment

Vanilla journalism strikes again!: I'm glad that the NYT and others have focused on the President's judicial nominations, but statements like "Now, after more than three years of battles over judicial appointments, Mr. Bush's ambitions for the courts are clear, but his record is mixed. He has succeeded in placing staunch conservatives on the bench in many cases but has been foiled in others by Senate Democrats ..." seems to me a bit off. Last I checked, the tally is 168 confirmed, ten blocked (not defeated; only one dropped out). This is "mixed?"

Update: One spin on the numbers is that we shouldn't really concern ourselves with all the confirmation of district judges (around 2/3 of the number), as if they aren't quite important on a day to day basis. The article notes the appellate judge blockages are 10 of 45, which is still rather small given the rhetoric, but noteworthy. The reason for the last three (less publicized) blockages was discussed here, and involves lack of senatorial courtesy, aggravated by the heavy hand of the President. Oh, and the openings were there because Clinton nominees were not acted upon. The most recent numbers are 211 brought to vote, 201 confirmed.

I had an occasion last Saturday morning to view the morning arraignment session at the Bronx Criminal Court. The session was scheduled to begin between 9:30-10, but did so closer to 10:30. For those not familiar with the process, arraignment is the first court appearance of criminal defendants and ideally occurs within twenty-four hours of arrest. The charges are officially read [or rather the relevant criminal code stated], bail is set, plea bargains are made (the arraignment judge is not allowed to accept pleas in felony cases), and the next court date is set.*

It took place in a small courtroom [known as a "term," for you Law and Order viewers] dominated by audience benches. The actual official area was pretty small with the assistant district attorney and various legal aid attorneys standing behind little podiums on both sides of a small platform. No opposite sides of the court tables for this session of our judicial process at work.

On a door stage right, the defendants enter, arms behind their back, as if they were wearing handcuffs. Each defendant is dealt with in a few minutes. The first matter is "notices," which primarily concerns what evidence or testimony (will the defendant testify at the grand jury?) will be offered later on.

The judge also sometimes determined if there was a "disposition" (plea arrangement) on the table. The judge on hand was fairly liberal; one thing he made sure to do is to avoid a situation where the defendant's probation terms would be violated. For instance, one was sentenced to a "violation," which is not technically a "crime," though in his case it involved a few days in jail.

Also, the defendant generally had low bail (one person with past priors got $3000) or was "released on own recognizance" (ROR), which means no bail. The legal aid attorneys, who all were characters in their own right, generally noted their connections to the community and so forth. One saw them beforehand seek out family members and so forth ("anyone here for X?") to get such information.

The legal aid lawyers (technically, not all the lawyers on hand were members of Legal Aid per se, but most were) all could be characters on one of the sundry law programs out there. One was an older woman, who looked like a stereotypical "been there, so that" liberal veteran. I can see her being some activist in the sixties. Another, who made a cameo appearance, wore blue jeans and had long hair -- a William Kunstler sort.

A third was a former prosecutor who tried a bit too much to pattern himself after a Law and Order defense attorney with the use of quips and "can you believe what they are trying to pull" comments that wasn't quite appropriate to the summary nature of the proceeding. There were also a few newbie sorts and a proper looking male defense attorney as well.

The assistant district attorney on hand was a five-year veteran (another took care of a couple cases), but she looked pretty young. Her outfit, which Marisa Tomei of My Cousin Vinnie might approve, might have added to such an impression. She wore high heels, a mini, had longish hair, and a fair amount of makeup. Oh, she also was very professional, and straightforward in her approach.

The judge was a black man in his early fifties, who everyone noted was a fair and sometimes amusing sort, though one that was sharp tongued at times. This was seen with a case involving a sixteen-year-old girl (white, I believe from Maine, but maybe not) who stole her father's car. The D.A. accepted the father's request to drop the charges (he was also in the audience), but the girl did spend the night in jail. So, the judge asks her how she liked it. Cocky youth that she is, she noted that it wasn't as bad as some people say. This didn't go over quite well.

Many of the cases were drug related,** a couple involved improper use of a vehicle, William Kunstler took a gambling case, and there was even a murder case (ah, so that is what an alleged murderer looks like). The defendants were generally not as cocky and/or stupid as that girl, though one couldn't quite understand the logic of accepting a plea to a violation (no jail time, no record) on a drug charge. A few had some problems in the past with paying fines or doing required community service. This also pissed off the judge.

A fairly interesting look at the judicial process at its most cut and dried.

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* By law, a criminal case in the state of New York must be put in front of a grand jury within five days (six in the case of weekends and legal holidays) when the defendant is not free on bail. If it is not, the defendant must be released from custody. In other cases, the "adjournment date" (the next court appearance) is a more open question.

** Interesting fact for city pot users: one generally gets a free pass. The first simple possession offense, as long as you don't have something else on your record, is dropped unless you are not a good little boy or girl for a set period of time. On the other hand, the time you can spend in custody waiting for your arraignment suggests the "there's no free lunch" rule still applies.

Wanting To Believe

Sports: Every dog has his day and all that, but the last two games of the Red Sox/Yanks series were a bit lame. Game Seven was over pretty early, though for some reason they trotted out Pedro Martinez (likely Game 1 starter?) for an inning, the score 8-1 (Red Sox). I have not really read the after game analysis ("Yanks choke" and "Tom Gordon: Who's Your Daddy?" or "Kevin Brown: Idiot" are possible headlines), but this is a tad dumb. The Yanks actually got two runs off the guy, though the Red Sox got them back off Gordon. As an aside, the fact someone died during the celebrations (by the police controlling the crowd; early reports have her not at fault) is horrible. The Astros/Cards series ended in a more evenhanded fashion though I rather the results were switched. The official color this year must be red.

This photo, thanks to Political Animal, highlights that not only does President Bush have a bit of troubling connecting desire with reality, the same applies to his likely voters. You can click on the photo for a better view, but basically only on defense spending and who should primarily be involved in writing the Iraq Constitution [both stances are rather obvious] do his supporters realize what his positions are.

This allows Bush's campaign to use nice sounding rhetoric to confuse matters (surely not intentional!) and supporters think the President agrees with them. Kerry's supporters do understand his views, except on the issue of defense spending (43%). If one checks out the analysis, part of the problem is that people want to support Bush, want to believe him. Thus, when people who sound like they know what they are talking about argue his tax policies are if anything unfair to the rich (see today at Slate, fray economists discussed the fallacies in the piece; many also argued the value of progressive taxation), it's quite useful. They want to believe.

Or, when conservative leaning bloggists like Dan Drezner appear to try to find a reason not to vote for Kerry (his soul searching on some level seems quite laudable, but something seems amiss when he says things like "now I'm 70% likely to vote for Kerry" like he means "I'm drawing away from the dark side ... help me out!" Lame statements like the one discussed here only make one more suspicious.) This tendency is shared by both sides to some extent, but it is troubling that it seems so disproportional these days. Elections are surely not totally rational affairs, but on some level, they have to be, or we will be in a rather troubling situation.

Baseball and Gilmore Girls

Play Alert: Based on the playwright's own experiences, Trying (currently at the Promenade in NYC, after a Chicago run with the same female lead) is an amusing and touching play. It concerns the relationship between a young married woman from the plains of Canada and her new boss, Francis Biddle, former Attorney General under FDR. Biddle's health is failing and he fears death is near but the potential for one more special relationship is there. Several lines stand out, including a reference to children as "our replacements" (such an obligation!), Biddle saying he will never trust "military necessity" as a justification again (his opposition to Japanese internment during WWII was somewhat weak), and the need to interact with people / be able to talk to them before one can hope for understanding. Well acted by the leads with a great set ... quite enjoyable.

Baseball: Ah well. Two exciting championship series will go to seven games, now that the Astros ran out of bullpen, and gave up the winning runs in the twelfth (same pitcher who did it earlier on faced the people who were his downfall -- second time was not a charm). The Red Sox had to get a couple come from behind wins, get a ball to bounce the right way in the ninth in one, have some more things go the right way in another, and have a rainout to rest their bullpen. And, benefit them after the Yanks had to travel after a 14th inning lost, being quite flat in the process. So it goes, though I think MLB should have given the teams an off day after Monday.

I have a beef though: Julian Tavarez saved the Cards bacon, a suitable redemption for someone who put the Cards in this position by being the losing pitcher in Game Five. Worst than that, after doing so, he broke two bones in his non-pitching hand in a burst of pique a la Kevin Brown (who hopefully redeems himself after Schilling did last night -- there were more shots at redemptions in these series than at a church rally). The problem was that Tavarez was fined as well for throwing at a batter. So, why did he have a chance to play? Some penalty!

btw The Red Sox is the first baseball team to come back from such a 0-3 hole and force a deciding game. The Mets came all so close in 1999, and though they have not had the Red Sox's century of woe, it's just one more reason for me to root against them. The Yanks might want to look at those Mets, who came back from 5-0 down in the first in Game Six, given the current box score. The Mets eventually lost the game in extras, but still ...

[ah well ... abject failure builds character and maybe it's Massachussets year? It bloody better be though I'm a NL guy for the rest of the month.]

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Gilmore Girls: Still tedious. I taped it and fast forward through chunks of it because the basic plot points involve each character (even Lane) having slightly embarrassing relationship issues. Grandparents separated. Lane liking fellow band member. Rory and Dean (seems forced to boot). And, Lorelai and Luke, this time Luke finding it hard to hide that he doesn't think Dean is good enough for Rory.

Ugh! It's like an all too uncomfortable family gathering. Please move on!!!! There was a fun reference to an old plot point involving reading Proust [covered by an episode recently repeated on ABC Family], but it just wasn't enough. It even seems the actors themselves aren't quite into it all. Danger!

btw Out of nowhere, or so it seems, West Wing is back, but I don't really want to watch. It ended blandly last season, and I fear it jumped the shark.

Sinclair and Stolen Honor

Good Reading: Steven C Clemons, a well known bloggist, recently made reference to a worthwhile article he wrote right after 9/11: United States: All-Powerful But Powerless that ended thusly: "America needs to get in touch with the NGOs, with the zones of the world calling for its compassion, rather than ideology and acts of war." The time of superpower might just be over, at least the ever so dominant sort of the past.

Why is it important that Sinclair Broadcasting be urged in all lawful ways that can be imagined to reconsider its decision to broadcast on its television stations the anti-Kerry "documentary"?

Because in a large, pluralistic information society democracy will not work unless electronic media distribute reasonably accurate information and also competing opinions about political candidates to the entire population. Certainly, for the overwhelming number of voters this year, controlling impressions of the candidates for president are obtained from television.

-- Reed Hundt, a former chairman of the FCC.

This histrionic, often specious and deeply sad film does not do much more damage to Senator John Kerry's reputation than have the Swift Boat Veterans for Truth's negative ads, which have flooded television markets in almost every swing state. But it does help viewers better understand the rage fueling the unhappy band of brothers who oppose Mr. Kerry's candidacy and his claim to heroism.

-- ALESSANDRA STANLEY (NYT)

As noted here, one of an ongoing series of entries on the matter by Talking Points Memo (just one blogger on the case), Sinclair appears to have changed its mind about having their outlets air an anti-Kerry documentary in its entirety. They will just use parts of it to show a somewhat less blatant piece slanted against one side. The first quote suggests the problem with this matter: the public airwaves are not like partisan papers that promote a certain political point of view. And, the power of a mega-news corporation like Sinclair Broadcasting that can force local affiliates to air such a thing is a rather blatant example of the dangers of media consolidation.

I'm supportive of protests that raise such concerns, especially given the documentary was scheduled to air only ten days before the election. I hate to have the government decide when news organizations draw the line, though various people have pointed out the matter was really equal time, FCC chair Michael Powell's apparent implications aside. On the other hand, Ms. Stanley has an interesting take on it, though she seems to miss a major point. The hackneyed partisan nature of the piece (I'm going by media reports here) suggests the people she says have a chance to let out their anguish are being used.

Some way to allow them to have their say! A truly balanced documentary that combines this with the pro-Kerry coverage of the events would not be that bad of an idea. This, however, seems a bit too complicated for the likes of network news. And, so the era's passions continue to fester, and a chance for better understanding becomes but a matter of politics.

Election Stuff

Recess Appointments: Some might argue that the filibusters by Senate Democrats justifies the recess appointments that I discussed yesterday. I think not; see here for an expansion of a letter I wrote to the editor on the matter; comments against the nomination of Judge Pryor can be found here. The other recess nominee, Judge Pickering, is generally held to be much less qualified, and has many problems aside from the ideological.

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Several dozen interviews with administration officials and with scientists in and out of government, along with a variety of documents, show that the core of the clash is over instances in which scientists say that objective and relevant information is ignored or distorted in service of pre-established policy goals. Scientists were essentially locked out of important internal White House debates; candidates for advisory panels were asked about their politics as well as their scientific work; and the White House exerted broad control over how scientific findings were to be presented in public reports or news releases.

-- Bush vs. the Laureates: How Science Became a Partisan Issue

The stem cell issue has been used by the Democrats as an emotional campaign tool with references made to the recently deceased Christopher Reeve and others with ailments that might benefit from such research. This is a real issue, one that involves scientific research that has unclear but possibly great potential, and the President's stance does not really stand to scrutiny. [This is particularly annoying given how we were supposed to be sooo impressed about how much time he gave to the issue, how much he deeply examined his conscience, and so on.]

As I have discussed in the past, however, this particular issue is best seen as part of an overall administration philosophy on science, one much more troubling than individual (if catchy) examples. The cited article suggests the true breadth of the matter as does the citations in my original discussion of the matter.

The basic problems involved, including a failure to properly allow real discussion and dissent, is also examined by Al Gore's latest speech. I caught a piece of it last night after the baseball excitement, and it's worth checking out in full.

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Charles Schumer (D-NY) is running for re-election, and I caught part of the debate that aired on Sunday morning. Given his opponents are a Republican nonentity (who said "I agree with the senator" a bit too much for a true conservative to be happy with him) and a Right To Life candidate (a serious looking woman), I don't think he is too worried.

A few things. One, Sen. Schumer has this preachy style about him that annoys me, even if I agree with his basic beliefs, such as his challenge against the President's perversion of the judicial nomination process. Two, why do so many Dems have to go out of their way to say they believe marriage is between a man and a woman? Oh, they believe in civil rights and civil unions, but "marriage" is soooo different. Thus, he supported DOMA to "defend" it. Oh, please.

Finally, his opponent used a tactic used by some Bush supporters against Kerry -- Sen. Schumer didn't put forth much legislation that passed into law. I understand the value of such tactics, but it still is pretty silly. The job of all five hundred and thirty-eight (voting) members of Congress is not to formulate legislation. This is especially the case for senators, who have a special constitutional role in regards to appointments and foreign policy. Anyway, a lot of the real law making happens behind the scenes and in the area of amendments to original bills.

At any rate, balance of power concerns makes every other than impossible to support Democrat in the Senate quite important. For instance, one reason there were not filibusters of judicial nominees when the Republicans were in control of the Senate was that Sen. Hatch (chairman of the Judiciary Committee) didn't call for hearings of certain controversial nominees. The fact that a few liberal Republicans, including Sen. Jeffords (then a Republican), might vote with the Democrats on many issues did not matter so much in that case. Republicans might reverse the principle, depending on their wont.

Sports Update: Backe Home

Election: Slate had an article today raising various ways in which the courts might get involved in election challenges this year. I suggest here that the early concerns for such matters is a positive development, implying that the electorate might be more concerned about politics than they once were. And, there are problems in the system, so it's important to face up to them.

The Yankees whacked the ball all over the yard and out of it sometimes for two games. They had a few timely hits to win it in another. And, Rivera and company pitched when it mattered. Suddenly, they cannot quite do either. Rivera blows a save, Gordon a hold (and Rivera cannot save his bacon, surely not with no outs on the board), and the Yankees cannot buy a timely hit.

Pedro again did a tad mediocre for his ace role (four runs in six innings), but it didn't matter tonight. Nor did a pretty darn good relief outing by Loaiza, who was asked to do too much: he finally lost one in the fourteenth with one strike left to go in his fourth inning of relief. The Yankees couldn't score for eight straight innings, helped by a ground rule double in the ninth that kept the runner at third. The failure to score a runner from third with only one out in the eighth didn't help. The Red Sox are now only down 3-2 with Schilling available for the sixth game. It's a series again, and the Yanks are to blame: they couldn't close the deal two games in a row.

This annoying situation (did I mention that I don't much care for the Red Sox?) was deemed as likely as the Astros also going back to their opponent's ball park for a Game Six. Down 0-2, they did the Sox one better, and swept the series in their park. Tonight it was the pitching of Brandon Backe and Brad Lidge (it is a requirement that top stars in Houston have a "B" in their name), the rookie one hitting the Cards (who one hit them for most of the game too) for eight, and Lidge closed out the deal. Jeff Kent hit the three run homer in the ninth to win the game. 3-2, Astros.

I listened to the Cards/Astros game on Internet radio because the Yanks/Red Sox game went long, so FOX did not show the start of the game, even on their sports station. Apparently, poker was more important (they did show it in a similar situation a few games back) ... I don't know if they were playing Texas Hold'em. Thus, as I kept on checking to see if the Yanks FINALLY got a run, two games with lethal hitters all went on for around eight innings with no scoring. Baseball on the radio is a pretty fun way of experiencing the game. After the Houston announcer noted that the Red Sox won (this was the eighth inning), and I was properly pissed, the right result happened in the second game.

I like underdogs, gutsy rookies, and two former Yanks are on the Houston team. It just might go to seven games too, especially since the Astros might have a rookie or a tired ace on short rest out there in Game Six. I would not be crushed if they lost, since the Cards is a nice team, and was an underdog early on too. Just a bit concerned about NY though ... apparently, they thought another classic match-up was required, when an early KO would have been in their best interests.

Stupid idiots. Get a freaking run!

Judge Pryor Recess Appointment Case

Sports: The Astros second ace survived and their bullpen won the battle, so it's a series now: 2-2. The Jets are 5-0, but no longer have the scrubs to rope-a-dope anymore (they came back today from a 14-0 defecit to win 22-14). After a Saturday Night Massacre, the Red Sox came back with a good game, including tying it in the bottom of the ninth vs. Rivera. And, won in the 12th. How tedious.

[Update: Additional information added.]

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

-- Art. II, sec. 2

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.

-- Article III, sec. 1

President Bush's decision appoint two federal appellate judges during a short intra-term recess of the Senate was problematic on policy grounds. The Senate Judiciary Committee already rejected one of them (Judge Pickering, who was later re-nominated; the other appellate judicial nominee so rejected is being held up by filibuster) and the other (Judge Pryor) was one of the most controversial of his nominations. And, obviously, neither vacancy occurred during the actual "recess."

[It also was a heavyhanded way to show his power and satisfy a base, but my concerns are not purely political -- if a Democrat did something similar, constitutional problems would arise as well. Such matters often have political ramifications and are fought out in the political arena, but something more is at stake here as well.]

Finally, given the judges still need to be confirmed after the end of the next session of the Senate, there is some serious question just how independent they truly are. Thus, using a means to appoint judges that has rarely been used since the 1960s was dubious.* The opening to skirt the "advise and consent" power of the Senate is clear: there are quite a few mini-breaks during a session in which a President can fill a controversial nominee that is being held up. Such a big loophole is especially damaging when we are talking about appointments to the judicial branch.

A defendant challenged Judge Pryor's appointment, after his panel upheld a conviction, and Sen. Kennedy also joined the appeal to defend the turf of the Senate. An en banc ruling of the court (Judge Pryor recusing himself) upheld the practice, though it involved the legitimacy of one of their own. As one of the two dissenters noted, this was surely one those special cases where the court should have "certified" the case to the Supreme Court (which could decide the matter or ask another circuit to rule on the issue).

I agree with the majority that cries of partiality are a bit slim, but it's a reasonable concern. Ditto the fact that the judges could be in the situation of ruling against one of their own. Two other cases involving this issue concerned federal district judges, so did not raise similar problems. The Supreme Court still might accept the case for review (if the parties appeal; and I think there is a good argument to be made that they should take it), but surely would have dealt with the matter in a speedy matter if it had to do so. As noted, it is a rare enough procedure as applied to federal judges that this is one of those unique cases where special concern of the Supremes is warranted.

On the merits, the best case for the president's actions is that the practice of intra-session recess appointments have had a long history. Though federal judges (especially "Article III" judges with life time terms) raise special concerns, the Constitution arguably appears to set the same rules for all executive appointments that require Senate approval. Thus, the hundreds of intra-session (here a few days) recess appointments since the 1790s seems damning. I'd note though that there was a lot fewer judicial appointments of this nature, even without raising the whole issue of when the vacancy occurred.

The one dissent that did discuss the merits does have a point though that the practice is dubious on constitutional grounds as well. The recess appointment procedure speaks of "the recess" for vacancies that "happen" during that time. Basically arguing that history was determinative, the majority stretched the English language to argue that "the" and "happen" can mean many recesses and vacancies that "happen to exist" at the time. This recalls something I read recently by Justice William Johnson stating that reading the text without a proper concern for the spirit behind it is foolhardy.

And, the dissent pointed out that said spirit suggests the executive was not to have a continual power to trump the Senate's appointment power by the means used here. The recess power, for instance, was in place to fill vacancies that arose when the Senate was not in session. It was not supposed to supersede the Senate's decision not to confirm nominees by waiting for a short recess and putting the person into office that way. Furthermore, the word "the" suggests "one" recess, which originally was a quite long one at that. Early analysis of the Constitution seems to back up the point. Separation of power concerns would also counsel such a result.

[The "happen" issue might seem a bit trivial, though it actually is an important matter, as discussed here by one friendly to Judge Pryor. As noted there, the historical precedent suddenly becomes less weighty when one looks at the fact that the recess appointments tended to be made quickly and applied to actual vacancies arising at the time. Compare this to the complaints by his co-blogger concerning the criticisms of the appointment and the failure to respond to constitutional concerns. Selective concern for the Constitution works both ways, but this is a tad bit glaring.]

The majority also stated the concern that judges cannot delegate their power, so long vacancies open up a concern that might not be the case when we are talking about executive officials (e.g., we don't have assistant judgeships like we have assistant attorney generals). This suggests judges set up a special situation, though the opinion isn't consistent on this point. Furthermore, the concern only really is in place for Supreme Court justices, though even here the recent lack of recess appointments suggest ways around the potential problems.

And, though the recess appointments of Justices Warren and Brennan are cited, it is to be noted that various top legal professionals were quite dubious of such appointments at the time. The fact that such appointments are not made these days, especially given the temper of the times, is to be applauded. At any rate, there are many appellate judges in a court and sometimes they are appointed by special designation for certain cases. Finally, clearly, the selective use of the power here counsels us not to accept an argument for necessity.

The "Good Behaviour Clause" as well as the pay provision (not being confirmed seems to violate this, and there is even a law on the books that might require such recess appointments not even to be paid at all -- see footnote citations) seems to suggests Art. III judges are different, and history alone might not save the day here. The majority suggests the wording is not absolute, even though it surely sounds absolute, thus the fact Judge Pryor might actually have a limited term is not a constitutional problem. I am not really so easily convinced.

One more thing. The recent case of Nguyen v. United States is but one of several cases by the Supreme Court that rejected the legitimacy of participation of judges on Art. III courts (those with the guidelines set by the opening quote) that are are not given the full protections of said courts. Nguyen (5-4, though all nine felt the judge was on the panel illegitimately) in fact found a ruling made with such an unqualified judge was void. The judge was a territorial judge appointed to a panel by special assignment, a judge that only had a ten year term. If this is bad, how about a judge that might have a less than a two year term? See also, the footnote articles.

Interesting reading. Two basic conclusions. (1) It was a bad idea for the 11th Circuit to basically try their own case. (2) It was a bad idea for the President to make these two recess appointments. History might suggest it is constitutional, but constitutional principles suggest that just because a court should not strike down an act, said act is not loyal to the document. At the very least, this rule applies here. [I'll add a third. President Bush, in response to pressure, promised not to do this sort of this again. All the same, the precedent was set and its legality upheld. So, the dance continues.]

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* How rarely? I double-checked, see here and here, and only twice since 1964 were recess appointments used to fill the federal judiciary. One, which resulted in a lawsuit like this that went the other way at first, was not confirmed. Another was an end of the term affair by President Clinton, re-nominated by President Bush, and confirmed 93-1. The extraordinary action was made after about ten years of repeated blockages of attempts (primarily by Senator Helms) to fill a vacancy in the Fourth Circuit. As noted, the two appointed by President Bush are quite controversial, and were blocked by almost every Democrat in the Senate.

More On Execution of Minors

I have discovered that the defendant involved in the case (Stanford v. Kentucky) that upheld the execution of minors (16-17) has since had his sentence commuted to life imprisonment. It might also be noted that the decision was decided fifteen years ago, given it involved a fifteen year old defendant. More importantly, the commutation just adds proof to the fact that executing those under eighteen does not meet current standards of decency. And, as noted by my source, the "governor that did that presided over the only executions that Kentucky has had since the reinstatement of the death penalty, so he was not an anti-death penalty advocate."

Thompson v. Oklahoma (1987) set sixteen as the cutoff though only four justices fully accepted the rule. Justice O'Connor made it 5-3 (Justice Kennedy not participating), noting that she was pretty sure the evidence did go the way of the majority. On the other hand, she ruled more narrowly that Oklahoma would at least have set an age, which would suggest they gave the issue some serious thought. As I noted a few days back, her rule led the Washington Supreme Court to strike down their own law. Her assistant vote might make some abolitionists nervous, though it should be noted that she also made clear in the opinion that it should not be read to apply to the execution of the mentally retarded. Justice O'Connor later voted with the majority in Atkins v. VA, which did just that.

Thompson is important for various reasons. First, it notes that the Court did repeatedly refer to international opinion in determining what was "cruel and unusual." Second, it explained how minors have less rights and are deemed less culpable than adults. For instance:

"[A]dolescents, particularly in the early and middle teen years, are more vulnerable, more impulsive, and less self-disciplined than adults. Crimes committed by youths may be just as harmful to victims as those committed by older persons, but they deserve less punishment because adolescents may have less capacity to control their conduct and to think in long-range terms than adults. Moreover, youth crime as such is not exclusively the offender's fault; offenses by the young also represent a failure of family, school, and the social system, which share responsibility for the development of America's youth."

This is why the "the Alabama brief" that Justice Kennedy and others found so impressive was not really so special. The basic point of the short brief was to supply six case studies of minors who committed heinous crimes and showed some degree of guilt. It's useful for prosecutors to remind people of such things, since appellate courts sometimes take an above the fray view of things that perhaps underemphasizes the crimes.* All the same, I was not impressed: is it supposed to be news that children do horrible things and can be quite devious about doing them? The argument being made is that they are not as culpable, not worthy of death.

The Thompson ruling, of course, was concerned with a cutoff of sixteen. It is easier to show that this is an age for which most would be quite wary of and one in which states do not consider the individuals involved full adults. For instance, though not draft age, seventeen is the age when one can join the service. And regarding a more trivial matter, sixteen or seventeen is the usual age for driving licenses. The value of the opinion, however, is in its basic principles. The citation of international opinion, which is a matter of growing importance to many of the justices, alone adds fuel to the argument for overturning a 5-4 opinion (Stanford) by expanding the rule to eighteen.

Kevin Stanford already benefited from the changing mores that suggest why; the others on death row who committed crimes when they were under eighteen should as well. And, if possible, those functionally that age as well.

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* Though appropriate, this might be suggested from the opening of Thompson: "Because there is no claim that the punishment would be excessive if the crime had been committed by an adult, only a brief statement of facts is necessary." Compare this to the dissent's extended discussion of the facts.

I would suggest that the value of focusing on the heinous nature of the events when arguing the legitimacy of upholding harsh penalties is a mixed bag. Cruel and unusual punishments sometimes are inflicted partly because of the emotions raised when heinous crimes are committed. The dissent also notes that the state had procedures in place to decide if the defendant deserved the penalty. This too is useful and suggests it isn't just arbitrary. This only helps to a degree, of course, if the practice still is problematic.

Team America: World Police

Team America is obviously too profane and bawdy—that is, too "Hollywood"—for Bush's fundamentalist base or a neocon prig like Michael Medved (except perhaps late at night when he's all alone). But, fuck yeah, it's the perfect date flick for a drunken frat boy trying to impress right-wing skank Ann Coulter.

-- J. Hoberman

Team America: World Police can be enjoyed on various levels: as a wicked take-off on action movies, as a twisted Trey Parker/Matt Stone film (the leader of North Korea reminds one of Cartman), and as a nifty experiment on the use of marionettes (puppet show or not, you actually care about these characters, but have fun doing so).

I personally think it could have been funnier (vomiting, making fun at Korean dialect, and watching Hollywood liberals die is only so amusing*). It still is pretty damn funny, especially the way the actor turned action hero proves his loyalty. This bit along with a the movie's theme and sex scene also shows the joys of well done vulgarity. And, the sets and effects probably should be nominated for an Academy Award -- a helluva lot of work went into making a movie using such a simplistic style of animation.

The movie also has a philosophy -- oh, movies of this sort don't want to admit to this, since being serious is so freakening lame, man. It does though. Other than some slow spots, the fact the movie goes for cheap shots against Hollywood liberals is annoying because of just that -- the dick/pussy/asshole philosophy of world policy is a nifty metaphor. So, why portray pussies as acting like dicks? Isn't the fact they are peace loving freaks who wouldn't use violence to save their own lives the whole issue?

It has been noted that South Park is a libertarian minded show, so liberals are clearly fair game. Still, hearing said liberals talk about actors reading the news and spouting it as if it was their own opinions is rather lame. This is surely not a trait limited to liberals, and many of them given the nature of the press these days actually are rather selective in parroting the news. The movie clearly is on the side of the dicks, but its backers surely aren't just concerned with pussies. Or are they? Hell, the nervous might suggest this was a Bush campaign advertisment. See here for more concerns of this nature.

The reply might be not to take things so seriously, but equal opportunity wicked satire is the best kind. The movie actually comments that sometimes pussies are needed to mitigate the excesses of dicks. Such probably would be the case here though liberal actors do blow up real good.

So, good movie, but not quite the super fantastic one that some suggest.

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* Oh, how about the idea that the villians are members of the "Film Actor's Guild" (F.A.G.)? This gets lame after a while.

Additional Thoughts

Legal Fiction cites a comparison of President Bush to Beavis. Hilarious. I also share LF's excitement that Democrats are threatening the monopolization of faith by the Republicans. As I noted, I felt Sen. Kerry's statement that the abortion issue is an article of faith that he could not force on the nation at large was great. It is just but one issue that in large part boils down to moral and religious difference of opinion. An ability to open up a way to connect the various groups as people of faith is not moral relativism, unless religious freedom is just a sham. It also is a dangerous falsity for one side to take control of things like "family values" or "morality" as if they own them. The Republicans have shown some problems on the security front; their claimed superiority on the morality front leaves a bit to be desired as well.

A few additional thoughts on recent topics.

The Astros lost again. The back-end starter basically did his job of surviving to the fifth, the middle relief did better, and the score was tied 4-4 in the eighth. This is basically all you hope for in games of this nature. On the other hand, you only win by being the one who scores late. The Cards did while the Astros could not.

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I updated the Mary Cheney piece already, but upon reflection, I have a bit more to say. First, it was a bit stupid on strategic grounds for Kerry to bring her up, since it clearly was somewhat of a risky move. Second, cries that he somehow insulted the family by mentioning her is just a bit much. Finally, I'd toss in that ignorance furthers hypocrisy (and harm), be it willful or not.

A good example is the Supreme Court ruing of Bowers v. Hardwick (1986), a 5-4 affair that held that same sex sodomy was not protected by the Constitution in part because it had nothing to do with family life. Those knowledgeable about the backstory might be aware that Justice Powell not only later felt his deciding vote was a mistake, but originally was going to vote the other way.

His concurrence, which underrates that harm of anti-sodomy laws (not just a matter of criminal penalties), sort of suggests his hesistance. It is also useful to know that his decision making was influenced by his ignorance. For instance, he told fellow justices that he never met a homosexual. Justice Blackmun (who authored the dissent) found this unlikely; it was -- one of Justice Powell's own clerks was (and is, I presume) gay.

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The piece on executing minors also merits a few more words. It has been noted that the Missouri Supreme Court in effect jumped the gun a bit by declaring the practice unconstitutional, finding that the reasoning in the case outlawing the execution of the mentally retarded changed the law. [Four justices clearly agree, as an dissent from denial of cert. showed.] The situation is a bit akin to a lower court using new arrivals as well as a minority opinion of three justices to suggest that the opinion upholding a flag salute law was no longer binding. His view won in the end, but that took a bit of nerve.

I find it a bit troubling that in such cases the judges do not just declare it a violation of the state constitution. It is not always possible to do so, but quite often there are quite similar provisions to work with. This is useful in cases like this because only a few states allow the execution of minors and have some on death row. The federal courts would have a smaller role and their decisions would have a narrower reach. And, in some cases, the states would support a more ideal result.

I do not know if the path was possible here, though I bet it was. If not, it still should be done more often, though I have been told that the federal courts sometimes go out of their way to restrain the practice.

[For more on banning execution of minors, see also here and here. The latter article is somewhat misleading when it says that "The Supreme Court of Washington State outlawed the practice in 1993." The court struck down a particular law because it might be applied to those under sixteen, the cutoff at the time, though a concurring judge would have held any law allowing executions of minors unconstitutional under the state constitution.]

Mary Cheney's Gay

[See added update at the bottom]

KERRY: We're all God's children, Bob. And I think if you were to talk to Dick Cheney's daughter, who is a lesbian, she would tell you that she's being who she was, she's being who she was born as.

I think if you talk to anybody, it's not choice. I've met people who struggled with this for years, people who were in a marriage because they were living a sort of convention, and they struggled with it.

And I've met wives who are supportive of their husbands or vice versa when they finally sort of broke out and allowed themselves to live who they were, who they felt God had made them.

I think we have to respect that.

The candidates were asked during the third debate if they felt homosexuality was a choice. In Sen. Kerry's response, he referenced Mary Cheney, the lesbian daughter of the Vice President. This upset various people, and not just Republican sorts (and her parents), whose response might be deemed either personal or a bit too convenient. Sen. Edwards brought up the subject as well in his debate, but it received somewhat less comment.

I find this concern overblown. The ultimate reason is that the only way we are to answer prejudice is to force people to see the hypocrisy of it all. The truth is that we always have exceptions in such cases. Certain people who we give a pass to because they are an exception for some reason or it's uncomfortable to bring them up. The daughter of a leading friend of the conservative base of the party is such a person though Alan Keyes, running for Senate in Illinois, is consistent in his anti-homosexual rhetoric.

And, yes, the result is that the people mentioned might be seen more as means toward an end than actual people. Or, their private lives (this is not an "outing" situation, though, so that is a separate matter*) might be made fodder for political debate. So be it: Mary Cheney is out there helping her dad's political career, one that furthers an administration that hurts homosexuals in various ways. This is so even when President Bush answers the "choice" question thusly:

BUSH: You know, Bob, I don't know. I just don't know. I do know that we have a choice to make in America and that is to treat people with tolerance and respect and dignity. It's important that we do that.

And I also know in a free society people, consenting adults can live the way they want to live.

And that's to be honored.

But as we respect someone's rights, and as we profess tolerance, we shouldn't change -- or have to change -- our basic views on the sanctity of marriage.

A nifty turn of the word "choice" there. Still, it's a bait and switch: tolerance and freedom ... up to a point. While governor, such "tolerance" apparently didn't include same sex couples even having sex, which was outlawed in Texas at the time.

It doesn't include equal protection at the work place. And, it doesn't include marriage ... or any marriage sort of arrangement set up so that benefits arising from the relationship are in place. [For those who think there's not a dime's worth of difference between them, Kerry made clear he supports such things, marriage excepted.] But, hey, Mary Cheney can live as she likes. This is just hypocritical.

Finally, I think we must underline the fact that determining if homosexuality is a "choice" or not only takes us so far. It is important to determine if a certain aspect of one's identity is inherent for various reasons, partly because we give special weight to such things. Also, if it is not a "choice" per se, there is less "guilt" in acting out one's true identity. All the same, something can be natural to oneself and still bad. A disposition to violence, for instance.

The question also belies a certain simplistic interpretation of sexuality. We might not all be bisexuals, but it is clear that a society that did not find same sex relations so distasteful would be one in which there was more same sex relationships. One need not be a "homosexual" per se (whatever this means ... is Madonna a lesbian? the co-star of Sex in the City now going out with a woman? someone who has a "lesbian vacation" at college?) to be in a same sex relationship or enjoy sex from members of the same sex. Equality need not, and ultimately probably should not, be a matter of genetics.

And, for any number of reasons, the homosexual aspect of one's identity might not be lived out. This need not be because one finds it sinful. Is a bisexual who marries a member of the opposite sex a "homosexual?" If nothing else, I do not think society considers such a person such. Ultimately, we do "choose" our lives, including how to live out our often complex true identity.

Besides, I do not think the other side denies people have certain "urges" or whatever. The idea is that they "choose" to carry them out, though many think such desires have twisted origins. Still, the ultimate tendency must in some sense be "natural," yes? Their problem, however, is that it is considered a unnatural (immoral) tendency. They also tend to ignore that a desire to partake in heterosexual relationships in various cases also is influenced by societal factors as well.

So, the "nature/nurture" debate really is a somewhat simplistic one. It is a bit akin to "fat free" food -- a plate full of salt is fat free; doesn't mean it's healthy. Sounds good though. And, discrimination based on religion is a bad idea, even if one "chooses" what religion one follows. After all, whites have the same legal rights as blacks not because blacks were born that way. It is because skin color shouldn't be a reason to discriminate. Same here, however the genetics falls.

Thus, is the choice issue really relevant to the gay marriage debate? If so, just how much?

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* Update: Many might not know her sexuality, so it might be deemed as some form of "outing." On the other hand, she is not secretive about her sexuality and has made herself a public figure by actively supporting her father's political career. Therefore, it is a weak form of outing at best.

I'd also say that I understand the dangers of personalizing politics in this nature, but we do it all the time. And, when basic equality is at issue and handled in such a hypocritical way, at some point, the concern just seems overblown. We cannot have leaders of discriminatory movements that ignore the fact their policies harm their vice president's daughter, or even their own daughter, without calling them on it in some fashion. If we do not, we just deny reality and help to uphold the wrong.