Ohio Again: Recount Done, Whatcha Got?

2004 Passes Us By: Given the material that dominates this blog, including some of the sports coverage, I'd say that the year had more valleys than peaks. For instance, as I asked one message board, is 2005 the year when we seriously have to think about making a case for impeachment and/or war crimes? New years bring forth new beginnings, and therefore I shall look at things in that way. So, don't look back, here we come 2005.

The recount of Ohio's 88 counties showed that Senator John Kerry gained 734 votes, with Mr. Bush picking up 449 after elections officials allowed more than 1,100 previously disqualified ballots to be counted in the second tally. ...

Daniel Trevas, a spokesman for the Ohio Democratic Party, said Democrats supported the recount but found that county elections officials sometimes ignored requests by recount observers to see rejected absentee and provisional ballots, and were not informed about procedures used to recount and reject ballots.

So was it a waste of time? Many think so, and some in Ohio are trying to make it harder to force a recount, though paying a hundred and thirteen thousand dollars is not exactly "easy." The problem is that the actual cost is probably much higher with $1.5 million being a number suggested.

Also, in the words of the Ohio Attorney General, who submitted a brief to protect the secretary of state from being questioned by those challenging the vote, the people involved "are not trying to actually contest the presidential election but are merely using this litigation to cast public doubt on the voting system of the State of Ohio without a shred of evidence supporting their theories."

This is in response to a lawsuit, citing fraud, that challenged the results of the presidential race in Ohio. They point to long lines, a shortage of voting machines in predominantly minority neighborhoods and problems with computer equipment. This sort of thing has been subject to various newspaper articles, a special investigation by members of Congress, and an ongoing GAO investigation. Suffice to say, there is a "shred of evidence" suggesting that something is wrong here, and we can toss in strict rules for provisional ballots, including not accepting them if mistakenly submitted in the wrong voting place.

I do not know if "fraud" can be proven, though even here there is a "shred of evidence." Likewise, it is useful to note that nearly one hundred thousand (if less than in 2000) votes were not counted, generally because of those darn push card ballots, and therefore not subject to the recount. (Not enough to change the vote, but obviously enough to change the number of votes for each candidate by much more than 1100.)

Also, as shown in part by the initial quote, the attempt to recount and investigate has been blocked in various ways. The most recent is the move by Secretary of State Kenneth Blackwell to request a protective order to prevent him from being interviewed as part of an unusual court challenge of the presidential vote. And, no recount can count computer votes when no paper trail exists.

So, the fact that but a trivial change in the final count resulted after the recount does not mean all is well. Problems still exist, but perhaps more importantly, distrust still does. For when we determine "necessity" we must take this into consideration:

But what is unnecessary? Peg Rosenfield, election specialist for the League of Women Voters of Ohio, said that just because a recount won't change election results doesn't mean it's pointless.

Elections are not just about numbers, but also perceptions, she said, noting that the public viewed Ohio's election with a high degree of paranoia. One way to resolve that is with a recount, she said.

When dealing with the state on which the presidential election turned, with an electoral system controlled by a Republican who made some partisan noises that bred distrust, and is in the midst of putting forth new (untested) electoral procedures, this matters quite a lot. And, again, the problems that clearly did exist will not show up in recount results, as is often the case with such matters. Finally, let's not forget that to bring forth a recount, the parties had to submit not a trivial sum. It might be compared to litigants who must pay for certain court fees to be allowed to use the state's judicial machinery to carry out a lawsuit.

Perhaps, the fee might be raised, but ultimately, $1.5 million was not too much to pay. In fact, given some of Ohio's questionable moves leading to various election day problems, it was the very least it could do to help gain trust in our electoral process.

[Very Late Update: Two election officials were convicted soon after this writing of rigging the recount though the prosecution was not based on this ultimately changing the outcome in any significant way.  Still, this sort of thing doesn't advance assurance, does it?]

Racial Disparity In Prisons and Voting

The Woodsman: A woman was on the tube recently extolling the importance of faith based programs that help fight drug abuse, those in trouble with the law, and so on because those who succeed add one more person to civic society. This film suggests we should care about even for those who cause us to shudder with disgust and fear, including child molesters who served their time (the prison part). I reckon some guys in the audience will wonder why such a person deserves the woman who believes in him here, even if she is played by the star's (Kevin Bacon) wife. The film in fact is filled with good performances from top down, even the small ones. It is a first film for the co-writer/director, and at times it shows in the story, but those characters bring you back.

Jalil Abdul Muntaqim, a black man incarcerated at Shawangunk Correctional Facility in Wallkill, N.Y., acknowledged that the law was not intentionally discriminatory. Instead, he argued that it had the practical effect of diluting black and Hispanic voter rolls because the racial disparity in New York's prison population is driven, in part, by discriminatory sentencing practices. ...

Muntaqim claimed that in New York, where blacks and Hispanics make up less than 30 percent of the voting age population but more than 80 percent of the prison population, the disenfranchisement law has the practical effect of resulting in the denial of the right to vote because of race. ...

The question presented in this case should not be confused with the more frequently debated question whether former felons should lose their right to vote for a time or even permanently. The issue presented here is whether New York Election Law § 5-106-which disenfranchises persons currently in prison or on parole -can be challenged under the Voting Rights Act. This presents a significantly narrower legal and policy issue.

It might be perhaps more striking if he was from Shawshank, but the numbers alone are eye catching: no matter why, it is unconscionable to continue a system in which the numbers are this disproportionate. It surely is the case that many of these inmates are there for serious crimes, putting aside the state's lousy drug laws, but it is society's duty to set up an environment where a quarter of the population makes up three quarters of the prison population. This is the ultimate issue here, not felony disenfranchisement overall, though lawsuits like this one attempt to address smaller matters that deal with the status quo.

The article cited refers to a federal case that has been accepted for en banc review, which led the writer of the original opinion to provide some remarks quoted in the last paragraph. The judge's opinion also noted that Muntaqim's lawsuit made certain broad claims that are somewhat more narrow than one that only claimed that those incarcerated have a right to vote (so held in only two states). Likewise, it ultimately is a statutory question: the original opinion held that federal voting rights legislation is just not clear enough on the issue to be used to interfere with state penal law in the way attempted here.

The broader question of the constitutional voting rights of the incarcerated or Congress' right to protect them is not at question. I'd add a few comments. First, in accord with my past writings on the subject, this should not be confused with the rights of felons once they leave prison -- the unfortunate wording of some discussions of the topic tends to mix them all together as if letting those out of jail for five years vote is akin to letting those in prison for murder vote for local officials in the community their prison is located. Second, I think a good case can be made that at least some individuals in prison (or jail) have a right to vote because conviction may not warrant lost of suffrage.

Third, in respect to the current lawsuit, racial inequality in the penal system can be said to violate voting rights as well. Though the Fourteenth Amendment does suggest a state can disenfranchise those convicted of a crime, the system might still be inequitable enough to violate the Constitution. After all, the Fifteenth Amendment came after the Fourteenth, so that alone suggests we cannot be limited to a brief mention of the matter in the Fourteenth.*

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* In a never used provision, the Fourteenth Amendment allows the federal government to deprive states their representation in Congress in proportion to those denied the right to vote. It is in respect to this provision where that limitations in respect of age, sex, and those convicted of a crime (rebellion highlighted) is found. As noted by the Supreme Court itself, this provision cannot justify a discriminatory law that is intended to discriminate on account of race. Laws with a discriminatory effect also have been found to breach federal anti-discrimination statutes, including those that touch upon voting rights.

I'd add that the opinion in the case at hand suggests the unfortunate possibility of recent federalism cases to affect not only areas where Congress might not have clear power over (such as general state laws that affect religious freedom or the rights of the disabled state employees), but even those that they surely do (voting rights by race). This does not change because we are talking about prisoners here, and an upcoming decision involving religious rights of prisoners (and a federal law that deprives spending if they are deprived in certain instances) might just make this clear. I would not be surprised if the en banc court cites it in their opinion.

In Memoriam

Who Can One Trust?: A couple years ago, I helped someone write a paper about a book about honor killings in Muslim lands. It is a serious problem, and not one that needed the writer's tragic story (the murder of her friend in Jordan) to make it clearly so. All the same, I read with sadness that the author might have made up key portions of the story, first catching the news in a little blurb in an end of the year review of books. The matter is addressed here and here, though the final chapter might not be written.

In recent years, it seems that more people are dying. I don't mean people per se, though the recent tragedy suggests acts of nature still sometimes have a means to trump the acts of man. As to that, by the way, what can be said? The only thing perhaps I would note was the almost offensive focus in my local paper on a handful Americans who died, and an article or two that focused on some model -- probably a chance to include a sexy picture or two. We can understand why, especially since the deaths of mostly faceless people on the other side of the world is so hard to truly imagine, but still ... To be fair, the coverage mostly dealt with other matters, but it seemed so trivial when they focused on those issues.

Anyway, how does one view eighty thousand people dying at once? It's like the movie Hotel Rwanda, which focuses on the act of one man who did he best to save a small number of his wife's Tutsis, while hundred of thousands died around him. You have to focus on the small scale or single tragedies and saviors -- the whole picture is just too much to behold.* I believe this is where poetry works more so than prose, imagery giving us what prose fails to do.

Among this tragedy, it is almost gratifying to honor a few celebrities that recently died. As I said, it seems that there have been more of them in the last few years, or perhaps it just seems that way to me. Recently, the football player (and ordained minister) Reggie White died in his forties. As I went on my travels yesterday, I also heard about the death of Jerry Orbach, which was sure to upset my sister, who is addicted to Law and Order. Besides, he is from our neck of the woods, and played a character that one can admire -- good at his job, sarcastic, spare, and holding inside certain tragedies that he must carry around with him.

It is no wonder that local cops, as Lenny Briscoe would probably not mind being called, loved him. His long stage career is almost gravy, though until fairly recently, it was his major call to fame (including a voice in the film version of Beauty and the Beast). Thus, the NY Daily News fittingly ended some remarks honoring him by quoting from one of the songs he sung: "Deep in December, it's nice to remember, without a hurt, the heart is hallow." A tune that has enough to say about "September" for it to be used for other purposes as well.

Susan Sontag also died. I know her only from reputation, though now I might be pushed into reading more of her work (maybe when I die, my writing will get a broader readership) as well as criticism from her post-9/11 remarks. For instance, to quote Christopher Hitchens' obit, she spoke of the events as "a consequence of specific [sic] American alliances and actions."

In this, she is not too far off from the author of Imperial Hubris, though I doubt their views match up in all respects. Sontag surely thought differently on the subject than Hitchens, whose remarks blackened Slate for months, providing the fray loads of opportunity for ridicule, especially frayster "doodahman."

Therefore, it is notable that Hitchens only briefly mentions the fact in his obituatry, which is filled with respect and surely some awe:

Susan Sontag passed an extraordinary amount of her life in the pursuit of private happiness through reading and through the attempt to share this delight with others. ...

[on her efforts to help organize the Bosnian civic resistance] She did not do this as a "tourist," as sneering conservative bystanders like Hilton Kramer claimed. She spent real time there and endured genuine danger. I know, because I saw her in Bosnia and had felt faint-hearted long before she did.

Her fortitude was demonstrated to all who knew her, and it was often the cause of fortitude in others. She had a long running battle with successive tumors and sarcomas and was always in the front line for any daring new treatment. ...

With that signature black-on-white swoosh in her hair, and her charismatic and hard-traveling style, she achieved something else worthy of note - the status of celebrity without any of the attendant tedium and squalor. ...

If she was sometimes a little permissive, launching a trial balloon only to deflate it later (as with her change of heart on the filmic aesthetic of Leni Riefenstahl) this promiscuity was founded in curiosity and liveliness.

Reponses to the piece at times sadly focused on his criticism of her 9/11 stance, a criticism that amounted to a few sentences late in the piece, sentences couched more in sadness than in the sneer that he tended to focus on such opinions elsewhere.

Thus, I think he deserves his due here: it was a fine piece, one that suggests why so many respected Sontag so greatly. A woman whose writings and photographs are probably as important these days as any other. In respect to the latter, a local gossip page had an amusing comment about the absence of mention of her long time companion (Annie Leibovitz) in an otherwise long and well written obituary in the NYT. The official word was that paper could not substantiate claims that it went "beyond friendship." It did note that Sontag was photographed by said "friend" for an Absolute Vodka Ad. This, said the gossip writer, "has to be the best euphemism for 'lesbian' I've ever heard."

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* "A single death is a tragedy, a million deaths is a statistic." Joseph Stalin

Reframing Abortion

Slate had an interesting article on the "Ireland miracle," an economic success story that is news to me, economic amateur. One article linked up explained it this way: The Irish Miracle was powered by a new model of growth, premised upon the "Three Ts" of economic development - technology, talent and tolerance from which we can learn. "Technology" includes a fourth 't' in that taxation reform helped to encourage investment. Both articles suggests the complexity of a good economy, including the human factor, though some focus a bit too much one taxation or some other matter.

The fight is a central theme of the contest to head the Democratic National Committee, particularly between two leading candidates: former Vermont Gov. Howard Dean, who supports abortion rights, and former Indiana Rep. Tim Roemer, an abortion foe who argues that the party cannot rebound from its losses in the November election unless it shows more tolerance on one of society's most emotional conflicts. ...

Party leaders say their support for preserving the landmark ruling will not change. But they are looking at ways to soften the hard line, such as promoting adoption and embracing parental notification requirements for minors and bans on late-term abortions. Their thinking reflects a sense among strategists that Democratic presidential nominee John F. Kerry and the party's congressional candidates lost votes because the GOP conveyed a more compelling message on social issues.

The fight is the tried and true issue of abortion, again in the forefront because the favorite of the congressional leadership in the DNC race is Tim Roemer, not only a member of the 9/11 Commission, but an abortion opponent. For instance, a search on his record brought up this tidbit: "Voted YES on banning Family Planning funding in US aid abroad." And, of course, we have heard how moral values was the reason why the Democrats cannot get traction in Red America.

The reason, if there was one specific one, was as much a matter of not properly framing the party's platform (and yes, values) than any one issue. Therefore, if the party wants to reform itself, on some level abortion probably has to be part of the mix. All the same, probably not the way some people think. It should not be a matter of watering down the party's support of a basic right that touches upon matters of faith ("articles of faith" per Kerry), equality, autonomy, health, and more. What does the other side think?

On the other side of the debate, Wendy Wright, senior policy director for Conservative Women for America, which opposes abortion, said she thought it would be "very smart" for Democrats to elect Roemer chairman of the party.

"It would make sense for Democrats as a whole to recognize that Americans want protections for women and unborn children, want sensible regulations in place, instead of forbidding the law to recognize that an unborn child is a human being," Wright said. "To not pass legislation just to keep the abortion lobby happy is nonsensical, and it appears that some Democrats have recognized that."

Wright said it was too early to know whether Democrats would change their votes on upcoming antiabortion legislation, or would only change the way they speak of abortion. She said the comments of some party leaders led her to believe that "it would just be changing of wording, just trying to repackage in order to be more appealing — really, to trick people."

Politics, however, is largely about packaging. Reform is partly about re-packaging, since ultimately the basics of the party is not going to completely change or anything. The same here. As I noted, we are not really talking about "single issue politics," but something that touches any number of things. The problem in my eyes is that sometimes the party does not properly make this clear. And, Roe v. Wade itself was part of the problem because it did such a lousy job defending a right much more defensible than various critics (including progressives) make it out to be.

Let's revert back to that "yes" vote on family planning funding. Notice that term: family planning. It has an interesting ring to it, and is a quite useful term ("birth control," for instance, was a rarely used term until the 20th Century). President Bush's opposition to government funding of any family planning organization that in some fashion includes abortion in its menu is as troubling as it is easy to attack.

Spend a small percentage of your dollars, most of which is spent on women's health in non-controversial ways, to even talk about the subject, and nothing for you. Money that would be spent on birth control and other means to decrease abortions. Is this about abortion or is it about free speech, women's health, and respect for life? After all, there were less abortions in the U.S. in the years of Clinton than the first four of Dubya.

And, what about "partial birth" abortion? A term that helps people forget that the abortions are quite often (and pro-choice Dems supported a law that would so limit) necessary for the woman's health, and would therefore legally occur in some fashion at any rate. President Clinton vetoed a form of the bill Rep. Roemer supported, not because he was an extremist, but because of the lack of a health exception that the U.S. Supreme Court itself suggested was required.

Who has the best potential message here? The party that supports an unconstitutional law that threatens women's health (and involved the Attorney General in the medical records of women) and doesn't even necessarily stop any abortions, or the Democrats who would support a sounder version, while protecting such things?

So, by all means, refocus the abortion debate, remember that many who oppose it are not bad people (but demand that the other side do the same ... list the Christian faiths that support the right to choose, if necessary), and support things that will probably lead to a decline in the necessity of abortions anyway. All the same, do not think that the way to regain America is by depriving the people of their basic rights, which is just what some hope such a "refocus" truly would mean.

Long Weekend Stuff

Holiday: The family, NYC wing, was together recently for a big birthday. The quick turnaround went fairly well, though unfortunately a couple wound up being sick on Christmas. My sis-in-law did something more should do, if it is their want, and read a bit from Matthew before the gifts were opened (the whole three kings bringing gifts thing). And, though me and my brother couldn't quite figure out how to hook up the DVD, the whole holiday went pretty much without a hitch (excepting that bit of sickness). Not to be cynical, but when you are dealing with family and everything else, that is no small affair.

Football: Week 16 had some good games, starting with a Packers/Vikings game on Christmas Eve that had some crazy moments. The craziness of the football gods was suggested by the Vikings scoring twenty-one points on three plays (regular drive and two drives of one play), but managing but three offensive points in the Second Half (Packers won and won division ... ex-Packer Reggie White died [too young] a few days later). There still is a meaningful game left (Rams/Eagles), but the weekend itself ended with a match-up of 3-11 teams with Miami winning 10-7 on a long field goal as time about expired. After all, someone had to win the darn game, and OT would be a bit too much.

NY did not have any good games. The NY Giants lost by one point, but had to try rather hard to manage to give the game away. Field goal (in the Red Zone) after field goal, the possibility of the key play seemed ever so close. The win seemed there when Cincy was 4th and 10 with under two minutes to play. The win seemed there even after Cincy scored, but the Giants got the ball back with two times out in Cincy territory. Final interception ... '03 eight game lost streak matched. The Jets played bad all day ... after the QB's recent prima donna act, the sportswriters must have written in glee how he again could not handle that big game.

Movie: This year's family movie on Christmas Day was Spanglish from the maker of As Good As It Gets, which was the pick a few years back. A decent pick, especially with not many others that the bunch would like (I have numerous movie gift certificates and nothing I really want to see), though it didn't quite add up to a complete movie.

Adam Sandler was impressive, again showing that he could play calm and repressed without the shouting and antics. Téa Leoni had the misfortune of playing an over the top character, who isn't given enough good parts. The character's mom was overdrawn, but less offensive. OTOH, the other characters played off each other pretty well, including some very good scenes. Still, the movie had a rough draft feel to it, decent enough it may have been.

Odds and Ends

Dahlia Lithwick's column on the "yes man" nature of the future attorney general provided an opportunity for me to toss in my .02. This includes my annoyance at those who target President Bush's agents, including a few Republicans who want Rumsfeld to be fired. Why not target Bush himself? Well, for one reason, the chances of firing Bush is unlikely ... though credible arguments can be made that we should by the one means left. See also here. Sorta something that shoulda mattered last month, but I guess it didn't really. After all, Kerry didn't really make an issue of it either.

Meanwhile, a couple good entries by Stephen Waldman over at Gadflyer. First off, he provides a strong separationist view on the issue of singing Christmas carols, answering some critics in the process. Second, he discusses the recount in Washington State, which currently appears to have gone the Democrat's way. The Democrat in this case had the guts and wherewithal to stick it out and demand every vote to be counted, even in the midst of opposition and early accounts that appeared to suggest she would not win. Given the margin, who knows if she will win even now, but the experience suggests how sad the 2000 fiasco truly was.

The Flight of the Phoenix was on a movie channel all day long. The remake received lackluster reviews, one saying it was "pointless," which I find amusing. What exactly is the "point" in making any number of films, except for a few hours of enjoyment? We aren't talking deep meaning here, and sometimes when a mainstream film tries to have a "point," it doesn't turn out that well. So, yes, Dennis Quaid (in the James Stewart role) and the rest have a point in the remake: not to have one.

Here we go again:

The president nominated highly qualified individuals to the federal courts during his first term, but the Senate failed to vote on many nominations," today's White House statement said. "Unfortunately, this only exacerbates the issue of judicial vacancies, compounds the backlog of cases, and delays timely justice for the American people.

Bush again plans to re-nominate all the nominees (except for Judge Pickering, who is retiring) to the bench that the Democrats blocked, including Judge Owen (blocked twice) and Brett M. Kavanaugh (late 30s, no judicial experience, but was on Kenneth Starr's staff). The rate of confirmation was quicker than most and the forces who "exacerbate" the issue at hand is the side that refuses to follow previous practice. Said practice by the way was not the "obligation to vote up or down on a president's judicial nominees." Nor is an "independent judiciary" all what is on their mind.

The timing ... late 12/23 ... of the announcement follows the Bush tradition that watchers of West Wing might call "take out the trash" -- light news day, when people's minds are on other things.

Like the holidays. Have a happy one, one and all.

Dreaming The Impossible Dream

The NY Giants started the season 5-1, but now are 5-9. Still, given the total mediocrity in the NFC (e.g., aside from Philly, the Giants are tied with the other teams in their division), they still have a chance to get to the playoffs:

1. The Giants must win their last two games (at Cincinnati, vs. Dallas) and finish 7-9.

This is possible unless their enthusiastic effort against Pittsburgh was a last gasp, since Dallas also cannot score, and Cincinnati has a questionable defense.

2. The winner of Sunday's game between Chicago (5-9) and Detroit (5-9) must lose its season finale (Detroit at Tennessee, Chicago vs. Green Bay).

This is almost probable because Tennessee racks up points but still loses because their defense stinks, but Detroit's offense is questionable. The fact Chicago scored five points last week suggests they can hold up their side of the bargain. Nonetheless, Detroit is pesky, and might just go 2-0.

3. Carolina (6-8) must lose its final two games (at Tampa Bay, vs. New Orleans).

Not likely. It is quite likely that they will win one, but two is probably asking too much. Tampa Bay wins every other week and New Orleans might just be in it, which is bad given their tendency to choke when it counts.

4. New Orleans (6-8) must lose to Atlanta next week and beat Carolina in its season finale.

This is possible, though if Carolina has to win to get to the playoffs, it is hard to see them losing to the Saints. Atlanta also really has nothing to play for, so New Orleans might actually win.

5. St. Louis (6-8) must lose its final two games (vs. Philadelphia, vs. the Jets).

They are getting their QB back, Philly has nothing to play for (and has to be careful with their players), and the Jets just might choke. Still, this should happen, given the defenses involved, and the mediocrity of the Rams even with Bulger.

6. Arizona (5-9) must lose next week at Seattle and win its finale vs. Tampa Bay.

Since all three teams are mediocre, this is possible, if not a given. Arizona also has the defense to hold Seattle -- if it shows up -- but not a great offense. Relying on Arizona is not something one really wants to do, given there playoffs are on life support because of the only NFC team (two wins, both vs. Arizona) currently out of the playoffs.

Easy as pie. You know, the from scratch kind, where you have to make the dough and filling, and ... I also hear that the Mets have a shot at getting Randy Johnson. It involves spiking his water and showing him pictures of Kris Benson's wife.

RKBA

We should attack the right way. Jack Balkin reminds us that we should attack the right way, using criticism of Justices Scalia and Thomas that he rightly notes focuses a bit too much on policy, not law. Putting aside the usual exaggeration for effect, it is important to focus our ire the right way. I shared his concerns when reading the material covered and hopefully the friendly warnings will be taken to heart by the group involved, since they provide a good service, but sometimes overshoots their mark.

Stepping away from the First Amendment, let us move on to the Second. The Bush Administration, to pleasure of the liberal blog TalkLeft, has again supported the individual rights view of the amendment. Meanwhile, they harm the overall idea of state militia by sending the national guard overseas to Iraq, adding insult to injury by giving them less benefits. This suggests to me a sort of "missing the point" aspect to the argument.

The Second Amendment itself speaks of individual rights, but for a particular purpose, which is notable because preamble purpose clauses are rare in the Constitution.* So, when the amendment talks about a "well regulated" (which some strong individual rights theorists argues means "make regular" or keep smoothly running) militia "necessary for a free state" (Art. I, sec. 8 suggests the militia's role here is domestic in nature), we should take notice. Also, "militia" has a certain meaning: it doesn't mean everyone and sets up certain responsibilities. For instance, an AP story reported:

Near the end of her short life, Shayla Stewart, a diagnosed manic-depressive and schizophrenic, assaulted police officers and was arrested for attacking a fellow customer at a Wal-Mart store where she had a prescription for anti-psychotic medication.

Showing a corporate loyalty that might be appealing except for the circumstance, Stewart bought a shotgun at another Wal-Mart just seven miles away, and used it to kill herself. Her parents are suing** Wal-Mart, but the problem appears to be the law itself. A generally commendable privacy law blocked the use of her prescription and mental health records, though it doesn't discuss the arrest records. She herself marked "no" on the question relating to the former, thus it was not a great determinant on whether she was "involuntarily committed to an institution or declared dangerously mentally ill by a judge."

In general, a dangerous loophole, helped in some areas by lack of good centralized and cross-checking computerized record keeping. And, a blatant violation of the spirit of the Second Amendment, which brings with it a duty along with a right. What part of "well-regulated" is so hard to understand? It is basically pointless to complain about the administration's position because an honest look at national opinion (putting aside constitutional analysis) will show that people in general support a basic right to own a gun.

The best attack is to focus on problems like this. And, it will be a lot easier if people do not think you just want to take all their guns away. A fear that is exaggerated but not as much as one might think given some of the rhetoric on the anti-gun side. As to this particular case, the interests of privacy are quite important, but those who buy a gun have a somewhat lesser expectation of privacy.

And, the constitutional claim? I remain of the mindset that the Second Amendment has a states rights flavor, and the individual rights view should look at least in part elsewhere. The Fourteenth Amendment seems to me an ideal place to go because it focuses on the individual rights of national citizens. The amendment (thanks to Professor Akhil Amar for the image) distills the Second Amendment into its personal rights component.

Also, as used by the dissenting judge in a federal case that upheld a ban in a Chicago suburb, the right to privacy works as well: self-defense protects one's body and home, the latter in particular the concern of Thomas Jefferson, who focused on owning guns at home. I'd add that equal protection also factors in here, especially since the 14th Amendment in general originally was concerned about free blacks, who found that a right to defense was rather essential. Women and other groups might also agree in various cases.

Anyway, we should welcome the administration's position, but use it to fight for a consistent policy that better protects us all.

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* The other is found in the Copyright and Patent Clause, and it too has often been protected in breach. Copyright protections have often been supplied of late for monetary reasons more so than "to promote the progress of science and useful arts." State constitutions make more use of preambles, but their rare use in the federal Constitution suggests we should take special care to respect their counsel.

This does not mean ignoring the clear meaning of the rest of the provisions, such as the right of the people to keep and bear arms. Nonetheless, "well regulated militia" means something, and those who use the Second Amendment to reject all regulations are just wrong. At any rate, gun ownership was a basic right to many of the people back in 1789: it gives away too much to suggest without the Second Amendment, the right would not exist.

** Recent history suggests they have an uphill battle, even if they didn't live in Texas. Lawsuits against gun distributors in Illinois and New York have failed because they followed state law and did not have a general duty to protect the public. The Illinois Supreme Court also noted the fact that the industry is already heavily regulated, which is applicable here because Texas law itself keeps the mental health records private. The article does not spell out in detail all the claims made, so something might stick, but their chances are somewhat dubious.

Bloody Goodies Bags

Last year, a school administrator stopped Jonathan Morgan at the door to his classroom because the "goody bag" he had brought to a school party on the last day before Christmas vacation contained candy canes with a religious message attached. Titled "The Legend of the Candy Cane," it said the candy was shaped in a J for Jesus and bore a red stripe "to represent the blood Christ shed for the sins of the world." ...

Doug Morgan said his son was a victim of "political correctness spiraling out of control." He noted that the school had informed parents that only white paper plates and napkins -- no Christmas red and green -- would be allowed at the generic "Winter Break" party.

To follow-up on my Christmas entry, I read the above in an interesting Washington Post article on the efforts (including lawsuits) to put "Christ" back in "Christmas." Arguably, the true problem is Santa Claus, whose religious origins are mostly forgotten in lieu of the reindeer stuff. I wonder if worrying about little Johnnie getting candy with messages about "the blood Christ shed" is part of the trivial secularization of the holiday the conservative spin machine is worrying about.

The article discusses the recent trend of arguing that religious speech just get equal time, which seems to me a sort of cheapening of religion: Christ / Dean, just two viewpoints to defend. Also, there is all that stuff in the Bible about Jesus saying we shouldn't be showy and feel a need to publicize our faith, so prayer in private is the way to go. Or, the "render to Caesar ..." stuff. Now, we have what sounds like cynical political use of the Christmas holiday. Surely not!

Still, some go too far in the other direction, and the random school child gets in trouble with writing an essay about Jesus or something. So, balance is good, but it should be noted that public sponsorship of religion or even mixing church and state bears special care. Thus, a teacher surely shouldn't hand out those candy canes with Mel Gibson approved doctrine.

Oh, and to show my sense of balance, I do not think freestanding trees generally are religious symbols. We shouldn't allow some religious symbols (menorahs) and not others (creches), so nix both or neither, but Thanksgiving has some religious content too. A turkey isn't a religious symbol, however. But, Happy Holidays is fine ... it's inclusive of all religious faiths. Good thing ... not Christian bashing.

Anyway, great game last night. The Pats played a bit lazy, especially a truly stupid toss while the QB was on his butt that led to the winning score with less than two minutes left. Take the sack. Sheesh. A non-call seemed to be Miami's downfall, one of those calls the announcers say is a bad call. The calls that drive me nuts. But, the football gods were on their side: they scored on 4th and 10. And, the Pats have to work for a bye, and will probably not have home field throughout.

Ratings Issue and Football

Rummy: The issue of him not personally signing letters to the families of those who died in the war is coming out a bit late in my opinion. The reason surely has something to do with "piling on" and his now infamous insensitivity in the Q and A session. Let the criticism continue, but basically it doesn't satisfy because it is one step removed from the true culprit. President Bush again confirmed Rumsfeld is doing a fine job and in his mind, Rummy is. So, since firing Bush is not a serious option, his agent is targeted. I understand why, of course, but when Republicans call for Rumsfeld removal, I can only think cynical thoughts. Basically, I feel like telling such people "you made you bed, now you have to lie in it," but I guess the holiday season doesn't go good well with the venom. btw I do wonder why the coverage of the signature issue did not do a better job discussing past practice in the area. It just continues a sad "single shot" vs. complete perspective coverage of the news.

Anyway, Intel Dump has a good discussion on the difficulty many have in backing troop when one feels the mission is so wrong.

Hotel Rwanda is a forthcoming film concerning the Rwanda genocide of 1994 that originally received an 'R' rating for "overall tone." A film about the horrible massacre of perhaps a million people is surely something warranting parental guidance, or arguably more. Thus, it was something of a surprise when the producers decided to challenge the rating without changing the material. They succeeded except for "removal of a certain expletive that cannot be used as a verb in a PG-13 film."

And, given the fact we are dealing with history that serious teens must be allowed to study and discuss, it is quite important. Putting aside that many young teens still somehow watch 'R' rated fare, it is often ridiculous how certain valuable material is theoretically blocked from them by such a rating. A movie that purposedly keeps the violence mostly off screen is especially worthy of the lesser rating.

The importance of basic content, not a few words or a harsh scene or two, should be the touchstone here. Also, the value of promoting serious mature fare, including by realizing the absence of a few key "no nos" does not suddenly make a film worthwhile for teens. In fact, if taken to strictly, much of the canon taught in teen lit classes might need to be suppressed. [This issue has been a long time concern of mine, ever since a letter of mine was printed in a local paper concerning a worthwhile teen flick entitled Pump Up The Volume being rated 'R'.]

Football: Though the first round of Saturday football brought little surprise except for the NY Giants (5-9) offense actually showing up vs. Pittsburgh (not quite enough, though the defense made more miscues), late season football still has some juice. The NFC in particular continues to be interesting given how even the Giants have a mathematical shot of a playoff spot and Arizona (5-9) a chance to win its division! Seriously, the sixth seed is likely to be 7-9 with Carolina probably having the best shot, though even the Saints (deemed dead for weeks) have a shot. Also, Terrence "attitude" Owens is hurt with only an "outside shot" at getting back in time for the Super Bowl.

The AFC actually has some teams in the playoff hunt that know how to play the game fairly well, though at times the Ravens and Denver lead one to wonder. Detroit might have lost a chance for O.T. because of failure to get an extra point (even the Eagles had one blocked), but when was the last time a short field goal attempt was not only blocked but returned to the other side of the fields (the Colts defense basically won their game last night).

The Jets (10-6) seem to be safely on the way, though the QB should be a bit less sensitive: you played lousy in the "gut check" game vs. Pittsburgh -- much worse than the lowly Giants offensively -- so yes, the press won't be too impressed that you beat the likes of Houston and even Seattle (7-7).

Gift Suggestion: An Invitation to Poetry: A New Favorite Poem Project Analogy is a nice Xmas gift, especially with its companion DVD in which various ordinary Americans of all ages talk about and recite a favorite poem. btw The Wall Street Journal had a fun front page story today about the fake tree industry, but it's not available to nonsubscribers.

Winter begins 7:42A.M. EST on Tuesday ... let it snow, let it snow, let it snow! It did last night, but just a sprinkling.

Happy Holidays!

Charles Krauthammer recently wrote a column about how we need to "all just relax about Christmas." It is in response to what Frank Rich feels is a false controversy over how Christmas is under attack because of some isolated incidents dealing with its religious aspects. Such concern by the way is honestly held by various individuals, and not just the stereotypical masses.

For instance, Ben Witherington is a widely published writer on religious topics with a doctorate in his field as well as a current book entitled The Gospel Code (a take off of The DaVinci Code). The book does not only put forth a passionate defense (if a bit confused*) of orthodoxy, but clearly feels that it is currently under dangerous attack from modernist forces.

Care must be given to such strongly held beliefs, especially if you are threatened by them. For instance, in response to an editorial about keeping the faith in doubt, one letter writer responded:

As a Midwestern Presbyterian deacon, I am much more comfortable with John Horgan's unbeliever than with the rigid evangelical theology that seemed to fuel this year's presidential election. It is not just the unbelievers who feel beleaguered; progressive Christians feel that way, too. I certainly do not want evangelicals to teach their view of creation to my children in a classroom and then have them contradict me in Sunday school.

An election won by Time's man of the year -- there not being separate categories for the good and bad versions.

Krauthammer is on the side of those who feels that "The attempts to de-Christianize Christmas are as absurd as they are relentless." Such attempts are also deemed both sad and a sign of "profound ungenerosity" because of how open and generous the majority are to the minority religions in this country. This includes how a minor Jewish holiday was stretched in importance by the public to provide a companion to Christmas. Such generosity just goes to show how little those at fault here have to worry about, and anyhow, it is only those no longer truly strongly attached to their religious traditions that really feel threatened anyhow.

Well, it's easy for me to find Krauthammer's commentary distasteful, but he hits upon some commonly held beliefs here. It is somehow deemed overly generous to speak about our "Judeo-Christian" traditions, providing the Jews a sort of shared top billing, if not quite seriously accepting them as equal partners.

It is a partnership that many Jews do not quite want, and one that those of other faiths (combined more numerous than Jews, surely in various areas) might find a bit lacking. Other faiths, along with many Christians themselves, who would find it insulting that Krauthammer finds their involvement in various lawsuits and so forth against mixing church and state too much at this time of year is a sign that their connections to their faith and traditions are weak.

The level of religious freedom in this country is surely worthy of great respect and praise, but its very success means that there continues to be ongoing conflicts of a religious flavor. Many countries would love this sort of low level conflict, which is a sign of freedom and openness, but some find it threatening. And, for those who find the sort of debates referenced by the columnist silly, I wonder if they thought it fine when it was common practice to have Christmas pageants in public school that re-enacted the miraculous birth of Jesus Christ.

I reckon many would, and perhaps certain Jewish students can provide quite realistic performances as they re-enact the origins of another religion. We aren't just talking about Christmas carols here, though opposition to them should not surprise some fundamentalist parents who find Halloween threatening on religious grounds.

It is ironic that some are crying that a few people are trying to take "Christ" out of "Christmas," when the majority have mostly done that a long time ago. The commercialization of the holiday, mixed with its use of pagan symbols, and maybe even its very origins (the dating, not likely to be Jesus' birth, matched Winter Solstice holidays of yore) perhaps is why some are a bit touchy about the perceived challenging of the remaining religious aspects of the holiday. The non-Christ aspects of the holiday surely suggests "Happy Holidays" might just be the best greeting, even without its catholic flavor.

As to carols, an issue in a few locales of tens of thousands, 'tis generally fine: just truly honor fine music wherever it might be found. And, government sponsored displays? Well, I still think it's just good to keep out the religious symbolism, but that includes the menorah. This is deemed a trivial matter, and on a certain level it is, but the emotional meaning of symbolism (including those threatened by their absence here) can also be unjustly trivialized.

It is out of respect for the religious meaning of a creche that leads many to be uncomfortable about government decisions on its placement: shouldn't this honoring of religion be considered a good thing? Or, perhaps, those who feel Christmas is a weakly religious "one size fits all" holiday do not quite understand such strongly held beliefs.

Which is sort of sad and ungenerous of them.

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* For instance, he defends the New Testament from feminist critics, but fails to even mention various (arguably quite late) verses in Pauline epistles about how women should not speak out at church. This sort of trumps brief mentions of women among Jesus' disciples and "credits" sort listings of women by Paul, so clearly deserves better treatment.

Likewise, Dr. Witherington fails to consider one reason why certain feminists find Gnostic literature appealing is that its focus on the inner light, not the physical form per se, clearly has potential. This is so even if the Gnostics themselves didn't take it as far as it could go.

Furthermore, adding to the sadly sloppy reasoning in a book that did have some useful points to make, mention is made of women having public roles in the Gnostic community, roles that by that time (second and third century) would run against late Pauline opposition to women speaking in public! Thus underlining why the absence of a discussion of the controversial verses previously mentioned was so troubling.

Million Dollar Baby

Lower Court Watch: Held: In a challenge to certain ballots cast in Puerto Rico's general election, the district court should not have intervened into a local election dispute. It might be different, however, if a member of the Bush family was involved. Also the Dubya appointee who upheld Cheney's claims against the GAO on the Energy Task Force matter strongly set forth some minimum standards on a citizen's right to court even if held by a foreign government, especially if the U.S. had some special connection to the confinement. Of special note, part of the alleged facts include mention of tearing out of fingernails and other physical abuse. The fact that just having a day in court is deemed a victory for an American citizen suggests the "give no quarter" nature of the current Justice Department.

Mr. Eastwood treats the conventions of the boxing-movie genre, its measured alternations of adversity and redemption, like the chord changes to a familiar song - the kind of standard that can, in the hands of a deft and sensitive musician, be made to yield fresh meanings and unexpected reservoirs of deep and difficult emotion.

-- AO Scott

The writer of the screenplay of Million Dollar Baby, the title calling to mind a Katherine Hepburn flick (she's down the hall in the multiplex) wrote the atmospheric television show Due South. The score was created by Clint Eastwood with his son credited with most of the instrumental songs on the soundtrack, though Clint himself (who directed and starred) is listed as the writer of one as well. It is based on a collection of short stories entitled Rope Burns and might not be quite what you expect.

Some of the film, which is rightly a critic fave (if perhaps a bit overrated*), is a bit too predictable. Morgan Freeman's narration and the boxing background of the story has some standard flavor, if flavor enough. I did not find the arc of the boxing story very impressive, especially the boxer's quick rise, but also fairly standard stuff as a long ago match that went wrong and losing connection with a daughter. So, I share the thoughts of one of the dissenting critics, who felt this part of the film wasn't so great.

Luckily, to take Roger Ebert's view, the story isn't about boxing, but about characters who are involved in boxing. Boxing is but background, which might be why it was not fully developed. Small touches did, however, show the craft behind the film even here. Look at Clint's manager character parroting the moves of boxers he watches. And, Freeman and Eastwood's relationship in the film might look effortless, as if these are old pros on cruise control, but they put a lot of years in to be able to do that. Anyway, the humor involved in their interplay (and others around them) made me laugh out loud more than once.

Clint has made a cottage industry of playing aging characters dealing with old demons, and this is one of his best. The scenes of him at church is a mix of him pestering the priest, but also somehow trying to do penance for an old wrong. His typical restraint only makes the emotions going through him that must striking, including when he finds a new fighter to believe in, a girlie to boot. And, though the boxing scenes as noted were a bit tired, as a director he still has what it takes. A case can be made for two nominations here: actor and director.

And, surely another for best actress: Hilary Swank plays an escapee of white trash (one of the false notes is how over the top her family is played) whose dream is to be a fighter, and she thinks she found herself a trainer. Maggie might be getting a bit too old to just start out, but she has heart and guts, and Clint and Morgan can see it. This as much as her talent is probably what leads to Clint (Frankie) taking her on, and her need for a father figure and his need for someone to fill in for his long gone daughter surely factored in as well.

The movie takes an unexpected (for me at least) turn, and my test in such situations is to determine if the movie has enough meat to carry its weight. It does and is well worth watching for some fine dramatic movie making all around. I'd add that it is not perfect, some quibbles can be made about various aspects, but overall Frankie's interest in poetry and Gaelic (!) alone might make it worthwhile. I end with a poem he quotes late in the film:

The Lake Isle of Innisfree (Yeats)

I WILL arise and go now, and go to Innisfree,
And a small cabin build there, of clay and wattles made;
Nine bean rows will I have there, a hive for the honey bee,
And live alone in the bee-loud glade.

And I shall have some peace there, for peace comes dropping slow,
Dropping from the veils of the morning to where the cricket sings;
There midnight's all a glimmer, and noon a purple glow,
And evening full of the linnet's wings.

I will arise and go now, for always night and day
I hear lake water lapping with low sounds by the shore;
While I stand on the roadway, or on the pavements gray,
I hear it in the deep heart's core.

---

* A quick bit first: who knows that Christmas With The Kranks, the previews of which just screamed "bad," is actually based on a differently titled John Grisham (yeah, the law guy) novel?! Happily for Grisham, not too many.

Anyway, looking at the "other reviews" page linked to Ebert's review, I see some dissenters are a bit annoyed at all the praise. I can relate, since Mystic River didn't do it for me, and that won Oscars. This film is smaller, if of similar length, and might be ill treated by its praise: it's a fine film, but a bit too imperfect for a masterpiece. Or, maybe that's part of what a masterpiece truly entails. Either way, the movie is fine enough, even for $10.50.

The Limits of The "Obvious" Case

Pedro: The Mets signed Pedro Martinez, it taking a four year, 53K salary to outbid the Boston Red Sox. The concern is his shoulder will not last that long, though I'd hope that four years will equal at least 2.5 truly "Pedro" years. This seems to be a bit more than some expect. Likewise, the value of Martinez will not lead to a winning team unless a few more bats (at least one expensive) and middle relief (apparently in short supply) are added as well. Anyway, the Yanks might be Pedro's daddy, but someone else is paying his allowance now.

The Yanks themselves have had problems of late signing free agents without such support, though the eventual decline or departure of their farm material (often overlooked among the focus on their expensive acquitions) was perhaps equally important. Yankee fans will miss Pedro, especially given the team's ability to beat him. Schilling is a more troubling nemesis, no one really has the heart to really dislike Wells, and even Wakefield is a pain.

Marcia Hamilton discusses the case of the porn selling police officer* here noting: "the answer should have been obvious: Roe could not use the First Amendment as a shield to engage in conduct that was fundamentally at odds with the department's public mission. ... When on the force, he could be forced to divorce his private activities from his official duties and identity. But once he is off the force, he may do as he likes." Though not intending to do so, she hits home the overbreadth of the opinion as well as its noncontroversial aspect, which should would have been enough to decide the question.

Though the opinion does not limit itself to the issue, it does emphasize how Roe's actions took advantage of his role as police officer, so clearly falls under the legit authority of his government employers. This limits his rights, even if the matter concerned matters a lot less distasteful as well as subject matter of more redeeming interest.

Nonetheless, the opinion did not rest on the fact that Roe blatantly used his office for financial gain in such a demeaning fashion as I think it should have. The opinion went a step further and gratuitously (if vaguely) defined "public interest" and potentially limited the rights of public employees to speak when their actions did not meet such a test.

Likewise, Prof. Hamilton's reasoning has troubling breadth. I'm not sure what "fundamentally at odds" means: does any discussion of uneasiness with current law meet this test, given his duty to uphold the law? Surely not, since police officers and others in law enforcement do discuss the possibility of reform without losing their jobs. Perhaps, you need (though again the opinion can be read both ways) to have that added connection ... the "forced to divorce" requirement comes in.

Thus, we often see a priviso that "these are not the views of 'x' organization, just this writer" and so forth. Still, we still know the person is a member of the organization: Roe didn't say he was acting as a member of his department, just that he was a member of law enforcement. Or, let's say, Roe was involved in similar activity, but not for financial gain. Would people knowing he is a police officer suggest his private sexual activities are enough for his dismissal? It did in the past.

Experience has shown that common sense, whatever that might mean, is not always used in this area. Taking advantage of your employment for financial gain in the way involved here (as compared to perhaps something with more worthwhile content) is a pretty easy case, but the basis of the decision is not limited to these facts. Nor is the financial gain component all that Prof. Hamilton is concerned about. She also is concerned about when "Alabama Judge Ashley McKathan appeared to conduct a trial in a judicial robe embroidered with an easily readable version of the Ten Commandments."

The judge made clear that this was an expression of his belief on the importance of the Ten Commandments to the proper functioning of law, which led Prof. Hamilton to be concerned about the appearance of partiality. Problem? Let's say yes, especially given the alteration of the "uniform" of the employee, which connects to the Roe case. I wonder, however, the limiting principle. Would a cross, perhaps big enough to be fairly obvious, along with public statements about his belief of the importance of "God's law" also (ahem) cross the line?

What about a chain with a Ten Commandments charm? Surely, even if you cannot read them, it is pretty clear what two gold tablets represents. Or, perhaps a yarmulke ... would this suggest partiality to Jewish litigants (or a bias against members of the Islamic faith)? How about if the judge only talked about such things, underlining that the law doesn't really work that way as currently formulated? Fundamentally at odds?

Tricky, though the religious content brings in special concerns separate from those involved in Roe. A careful formulation of the rules can get around such shoals, but it goes back to my original distaste with the justices taking a case with relatively "easy facts" among the thousands out there, and using it to somewhat "clarify" what Prof. Hamilton notes is a muddy area of the law.

For though quite arguably in this case "the answer should have been obvious," the application of the broader themes are much less so. This includes actions by public officials, speech and activities of a sexual nature, controversial or distasteful matters, and so forth. The duty and ultimate pleasure of applying the law must take such nuances into account, especially since the penalties (e.g. losing a job) often is quite great as is the possible reach.

The ultimate importance is great indeed: given the private and public spheres can never completely be separated, what limitations are justified once you become a servant of the state? Given the incestuous relationship between the state and business these days, the question definitely goes beyond porn selling police officers and judges who use their robes as bulletin boards for their personal beliefs. In fact, sometimes one might wish such things are all we have to worry about. We don't, and so it goes.

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* This would be a good title for a Perry Mason episode.

Ohio Voting Woes Cont.

Though (like in 1988) an elector switched the names of the Democratic candidates, the meeting of the Electoral College was much less controversial this year than last time around. Not to say there was no controversy, especially given problems arising in Florida and Ohio, especially Ohio:

In Columbus, bipartisan estimates say that 5,000 to 15,000 frustrated voters turned away without casting ballots. ... But similar problems occurred across the state and fueled protest marches and demands for a recount. The foul-ups appeared particularly acute in Democratic-leaning districts, according to interviews with voters, poll workers, election observers and election board and party officials, as well as an examination of precinct voting patterns in several cities.

Richard Hasen, whose election blog is much recommended, found this Washington Post article a must read. I see his point. Let's put aside the possibility of truly large scale problems that certain serious individuals find worthy to be worried about. The article puts forth some serious problems that lead to legitimate concerns for many, and probably should worry a lot more. This is so even though the net result will not change the election, probably even if they all were truly investigated.

But, just think: the official count, put forth long after "Election Day," increased Sen. Kerry's count by over seventeen thousand. Likewise, out of Ohio's 156,977 provisional ballots, about four in five, or 121,598 ballots, were ruled valid. Though a statewide race in Washington is ongoing, the idea that anything serious would occur after Election Day is still likely seen as ridiculous. But, what if Ohio was 1/20th as close as Florida in 2000 (aka twenty times less close)?

Would waiting for the provisional ballot count (which some argued would be mostly worthless) or factoring in certain problems that were fixed be acceptable now, even if it took a few weeks or even a month? Many four years screamed that waiting that long was a sign of sore losership. Has times changed? After all, "punch-card ballots are used in 69 of 88 Ohio counties, representing nearly 73 percent of registered voters. About 92,000 ballots cast in last month's presidential election failed to record a vote for president, most on punch-card systems." And, a federal district court judge found using such ballots fine.

The Washington Post story quoted earlier suggests Ohio is sadly repeating some of the problems of Florida 2000. For instance, political factors encouraged many more black voters to go to the polls in Florida, which helped to overload the system. Increasing voter turnout should be a good thing in a democracy, such as when more than 5.7 million Ohioans voted, 900,000 more voters than in 2000.

But proper preparation for such a turnout, far from surprising in such a "battleground state," was not in place. This included not enough machines, long lines, and other problems. And, since low income (often black) precincts tend to be negatively effected (or especially appear to be because of mistrust, aggravated by some distasteful activity), this occurs:

Most senior state officials, Republican and Democratic alike, tend to play down the anger. National Democrats -- including the chief counsel for Kerry's campaign in Ohio -- say they expect the recount to confirm Bush's victory.

But that official view contrasts sharply with the bubbling anger heard among rank-and-file Democrats. While some promote conspiratorial theories, most have a straightforward bottom line. "A lot of people left in the four hours I waited," recalled Thivener, the mortgage broker from Columbus. "A lot of them were young black men who were saying over and over: 'We knew this would happen.'

"How," she asked, "is that good for democracy?"

The almost bored response by national Democrats suggests why some people (like me) felt there was a certain lack of true energy and passion to the campaign. As someone told me as to a separate matter, the administration are fighters, though their ferocity promotes things we might find quite distasteful. As Maxwell Smart might say, if only such passion was used for the forces of good. For instance, even if the net result was the same, this should not be taken in stride by national Democrats:

Republican Secretary of State J. Kenneth Blackwell, who was co-chairman of the Bush campaign in Ohio, decided to strictly interpret a state law governing provisional ballots. He ruled that voters must cast provisional ballots not merely in the county but in the precise precinct where they reside. For cities such as Cleveland and Cincinnati, where officials long accepted provisional ballots cast in the wrong precinct, the ruling promised to disqualify many voters. "It is a headache to take those ballots, but the alternative is disenfranchisement," said Michael Vu, director of the Cuyahoga County Board of Elections, which includes Cleveland.

The Kerry Campaign spoke about "counting every vote," but then quickly conceded (without even underlining the importance of dealing with the difficulties, which weren't even fully known about mid-morning November 3) once doing so was found not likely to help them.

Kerry lawyers did do something to deal with the issue afterwards, but it was up to minor parties to force a recount. Others were allowed to question why the Kerry Campaign had money left in their campaign chest. And so on. Sigh. Is it up to others or only local Democrats to force the issue in Ohio, when thousands or maybe tens of thousands (quite possible) of votes are at issue? Not quite, given the efforts of Rep. Conyers and others (opening statement by Jesse Jackson, however, suggested a certain lack of "official" flavor to the hearings).

Until we truly care about protecting the core right of democracy, a vote we can count on, democracy itself is in some sense rightly shown to be a sham.

Supreme Court Watch

My kids understand that if they walk into a Wal-Mart and pilfer an Usher CD, they're stealing about $12's worth of somebody else's property. My kids have a much harder time grasping the notion that if they download all those same Usher songs, they're also stealing somebody else's property?maybe not quite the full $12's worth since the plastic disk, the liner notes, and packaging all count for something, but certainly most of the $12 since the real value rests not in the plastic but the musical performance digitally embedded in it.

-- Rod Smolla

Smolla is a First Amendment scholar, so should be ashamed of himself for providing such a shallow reading of reality. His column for Slate also supplies a snide reference to Lawrence Lessig, whose arguments deserve a lot more respect. A flavor of my distaste with Smolla's essay can be found by these remarks and various others on the board they are found on.

The point of the lawsuit accepted by the Supreme Court is that peer to peer technology has many legal uses, much like a VCR or tape recorder does. Therefore, the fact it has illegal uses -- as do quite a few legal products -- should not lead to the criminalization of this speech promoting technology.

Napster was different because it directly was involved with infringement, sort of like a company that provided a listing of pirated movies and a direct means to access them. So, other than the fact that it is often hard to get a CD for $12 and that all the things he listed [and more] is worth a bit more than "something," Smolla's example is not really on point anyway.

On the subject of cases already decided by the U.S. Supreme Court, Monday provided several that might be of interest to the general public, including one involving pollution clean-up and the ability of lawyers to sue to held indigent offenders. The Supremes struck down one possible method of the former (leaving other methods for future litigation) and somewhat narrowed the right of lawyers in the latter case. It was the only case that provided a true split with Justice Thomas also providing one of his "we should get back to basics, and overturn a century or so of law" concurrences. I will cover a few of the other criminal justice opinions below.

As to the death sentence of a certain Californian, let me say that I'm against the death penalty, and in these cases specifically. The heinous nature of the crime is a given, but if we do allow the death penalty, I do think deterrence and especially heinous crimes must be involved. I do not think preventing the killing of spouses in these situations factor in here.

Such crimes will never truly be deterred, since there is a clear degree of passion involved, even if it is pure heartless passion of getting out of a marriage one does not wish to continue. Also, it is of a certain type that is in some fashion understandable, if not forgivable for legal purposes, to the degree that it is not capital murder worthy.

Talking about capital cases, Florida v. Nixon unanimously held that a noncommittal response by a defendant when told of the decision to use to a reasonable strategy of doing little to challenge a capital murder conviction during trial because the defendant's clear guilt (established per defense investigation) warrants focusing on the penalty phase did not require reversal. This included basically admitting guilt in the summation to the jury.

The Florida Supreme Court felt otherwise, arguing that this was in effect a guilty plea that required a clear waiver from the defendant. A request for an expert's opinion on the matter led to these comments with which I agree. Cases like this suggest that the "liberal" nature of certain justices are something exaggerated. It is acceptable, for instance, to have Justice Thomas' p.o.v. represented, but a mirror image of that justice is sometimes equally desirable.*

Devenpeck et. al. v. Alford might be of more interest for the general public. It held that as long as the police had a reasonable reason for arrest, they need not inform the suspect of the exact reason, especially because there is no federal obligation for the police themselves to supply any reason. This has clear applications to every day police activity, including some of which that would lead to mistakes preventable if an alternative rule was in place.

Brosseau v. Haugen involved a police officer using deadly force to stop the flight of a suspect charged with non-violent offenses, whose only riskful activity might be reckless driving while trying to escape. The Supreme Court, in a summary dismissal of claims against the officer (reversing the opinion below), agreed this was unreasonable force. Nonetheless, with Justice Stevens rightly wanting to leave it to a jury, it held immunity was justified because the ruling was a new application of the law that the officer should not be liable to know.

Immunity from wrongdoing is a serious matter, one that the courts at times have a tendency to stretch too far, and this appears to be a case where a jury should decide. Are not members of the community often the best judges of what is "reasonable" in certain factual circumstances, especially given the Fourth Amendment speaks of the "right of the people?"

As the opinions were announced, Justice Scalia presided, the others more senior not being available. Hopefully, this shall be the only way he will serve as "Chief Justice."

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* The guy also is said to be pretty nice to his clerks, and a recent Vanity Fair piece on Bush v. Gore noted even the liberals like him on a personal level. His rather extreme views, failure to talk at oral arguments, suspect confirmation, and certain public statements does suggest the Chief Justiceship is not appropriate.

Anyway, talking about someone who likes his views, I found Randy Barnett's book a struggle to read, though some of his views are thought provoking. Barnett's view overall is just too idealistic in the utopian sense as well as a bit more question begging than he thinks. Still, he does provide a useful thumbnail reading of "natural rights" as those that grow out of and are essential to satisfying our natures.

Kerik ... A Bridge Too Far, Even For Bushies

Football: As I ate a family dinner inside a converted bank vault, the NY Jets lost to Pittsburg, given all the 11-1 teams managed to finish their (relatively close) games with wins. The one thing the Jets have to hang on to is that they were only losing 10-6 late, even with a substandard effort in enemy territory. The NY Giants was just bad, again letting a bad offense rank up points, until Kurt Warner came in the game (and supplied about as much offense, admittedly in garbage time, as Manning did for three and a half quarters).

Meanwhile, Seattle didn't manage to blow another lead late (the Vikings failed to take the opportunities given to them) and the wild card race is a bit clearer. Oh, and SF is managed another win (in another high scoring OT victory vs. Arizona, thus being a reason why the Cards are not in the playoff race). Every dog has his day

I am not a great believer in the motto that "everything happened for a reason," unless it is a question of scientific cause and effect. On the other hand, I am one who knows we must take what we are given, and do the best we can with it. Sometimes what we are given is less than desired, but it's still often not a question of wanting, but needing. Our obligation, for want of a better term, is to take what we are given and do the best we can. And, again, sometimes it offers more than we might at first think we should really expect.

This bit of slightly corny sentiment, though I do truly believe in it, is partly inspired by Love Comes Softly, a Hallmark movie based on the book by Jannette Oke. The movie is fitting for the season, including its portrayal of faith and care that suggests that our leaders give such things a bad name by claiming to truly honor either of them. The bit about things sometimes not being a matter of wanting but needing comes from the movie, but in a bit of hard-edge sympathy that hit home. For some of the subject matter of this blog, it is a sentiment that bears remembering.

To mix genre, in a sense, take the end result of Bernard Kerik ... I just heard a news update that the administration (Alberto Gonzalez was in charge of vetting, Rudy G. recommending -- though the latter now is eating crow) said that there wasn't a problem in the Cabinet nomination process. Surely not -- they cannot do wrong, so that isn't possible (sheeet, it's like arguing for a square circle). Anyway ... yeah, there were reasons* enough for him turning down the nomination, but it's not like they came from above or anything. The test is what we do with the situation.

You know, after doing a bit of laughing and such, and we realize that the loss won't hurt them much without more. Wouldn't be the first time, won't be the last. But, recall, their mismanagement and error on matters of our security were not properly covered in the past. We did not truly take what we were given, we didn't (I might reference the movie here ... charming viewing with a lesson) see what we truly needed or have the presence of mind to look toward the future. One can say the same regarding someone put on the list recommended to Bush to replace Bernie -- Sen. Lieberman. Great option, Al Gore, and New Republic editors (their '04 presidential choice)!

But, the nomination's failure does offer a ray of hope that there are limits to what will be allowed or accepted without hurt. Will the Democrats realize this, and truly question some of the other nominees that should raise our concerns? After all, the chances of BK actually being confirmed in the current climate was actually pretty good in the early goings. A sad example of low expectations, especially given all the negative articles out there in local papers and beyond for those who looked.

Oh well. Every dog has his days, I guess ... even the American public, who deserve more than this guy, even if his replacement might not be so much better. I'd note, however, that loyalists are bad enough ... loyalists with excessive baggage are just a bit too much at times, even for these times.

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* Suffice to say the "reason" was not problems with a nanny. This whole nannygate issue has annoyed me for longer than I'd like to remember. Back in the day, I was a participant in a political bulletin board, and some people disagreed with my stance that Clinton's Attorney General picks should not have been opposed on this technical violation.

The replacement turned out to be Janet Reno, who might not have had a need for a nanny, but was not great improvent. She had some less easy to attack problems in her past. And, then Dubya's Labor Secretary choice had the same problem, though the true issue was ideological. Meanwhile, the replacement was not so much better (and the position was rather insignificant), and Ashcroft was confirmed.

A Kinsey Biography

Kinsey felt he could only study [sex] by stripping away all but its physiological functions, first removing moral judgments, second, even harder, emotions and feelings. For both he was ideally equipped psychologically and for both he was savagely criticized.

Jonathan Gathorne-Hardy

Sex the Measure of All Things: A Life Of Alfred C. Kinsey by Gathorne-Hardy was quoted in a review (linked) of Kinsey, leading me to check it out, since I found the movie rather well done. I also was interested in learning more about the man himself, whose work via the Kinsey Institute and beyond is still ongoing. [As an aside, the book suggests the supporting cast is pretty true to life, though it doesn't say that Kinsey's university ever stopped funding him.]

The book is a mixed bag. As the review notes, it is quite "chatty," the footnotes often interesting asides that match the author's opinion of Kinsey himself -- interesting in many things, not sure about everything, but willing to theorize about them when necessary. The book also goes the extra mile in defending Kinsey from critics, especially the author of another biography. Also, the author is British, which at times provides an interesting commentary on American culture (originally published in his native country, we at times have asides on matters that seem obvious, to inform his readers of our customs).

And, it does provide a fairly good overall of his subject. The book he attacks is much longer and detailed on some matters Gathorne-Hardy now and again says "we need not dwell upon," including family gossip.* Still, as in the movie itself, I would have liked to learn more about his family. For instance, his wife after not too long is mostly a cameo performer, and his children are rarely heard from. Also, once we reach the sex years, the book (interesting vignettes now and again aside) gets a bit tedious, as if a good editing job was lacking.

Thus, the reader that wants to obtain a complete picture of the man as well as a completely enjoyable reading experience might be somewhat disappointed. The main title is revealing, since the sexual research is covered fairly thoroughly. Nonetheless, the first section of the book loyally spells out the subject's life, even though it was more about gall wasps than sex.

Overall, the best option might be to check it out, and skim over the slow parts. And, for those who want to know more about his family, to look elsewhere.

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* This is not to say that the book doesn't have gossip -- Kinsey's sex life supplied quite a bit, though the author provides a somewhat scattershot discussion. The author rejects those who said he skewered his data to promote a certain p.o.v., including homosexual friendly activity (Kinsey rejected the "born that way" stance), though he does note that Kinsey was both a scientist and a social reformer -- though the two sides of him sometimes mixed together none to easily.

Left2Right and More On "Our" Values

Court Round-Up: The Supreme Court didn't overturn an injunction against action against the use of an illegal drug in religious ceremonies per a federal religious freedom law. Perhaps of more note, it accepted for argument cases involving peer-to-peer file sharing and application of treaty obligations to criminal cases. Such events as well as a lower court that in part held that "a dog is not a technology -- he or she is a dog" is covered here. I discuss Judge Pickering's retirement statement here. The Bush Administration's failure to take "no" for an answer is discussed here. And, an article on the "Deferred Sentence" of the Rehnquist Court can be found here.

A nod to another interesting blog that is just starting out and is a united (and still getting its feet wet) effort to promote a left of center philosophy. A discussion, including the comments, on faith based initiatives (including how they are applied in a discriminatory way, but the original intent is in some sense honestly benevolent) and the re-segregation of cities after a mid-1970s Supreme Court case that limited the means of dealing with the problem are two highlights. This statement also caught my eye:

This website's mission statement asks how we might better express our values. We might make a start by expressing them in the first place instead of shrinking from the opportunity. In at least three respects, I feel we should have been more forthright in this last election: more forthright about being appalled about the conditions at Abu Ghraib and at Guantanamo, more forthright about finding intolerable the number of Iraqi casualties and the conditions of life in Iraq, and more forthright about our concern for the poor.

I have recently read elsewhere about how the conditions at Abu Ghraib did not come up in the debates, which I cannot confirm given I did not watch them. Suffice to say that the issue as with the others were not much covered in the campaign, surely not with much passion or special emphasis. Sen. Edwards' "two Americas" theme did highlight the poor, but as I distressingly noted, he often seem MIA during the general election campaign. It rankles as we now hear how Rummy et. al. have not properly taken the interests of the troops at heart, and how this issue is getting so much traction.

Did this suddenly occur in the last few weeks? Why wasn't this and related issues firmly taken by the horns and used to show how even those who support the War in Iraq must admit that it was handled badly. After all, the pictures of abuse hit many of us in the solar plexus. Again, I must say: where in the hell is the leadership?

What a bloody sad waste of potential. Anyway, good blog, and given a respective nod by conservative leaning Volokh Conspiracy, partly because both have some libertarian leanings. And, I agree with the argument: the answer to the current leadership must include a passionate statement of competing values. The need for change in the quality of leadership is clear, but this second factor is also quite important.