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

Thursday, March 31, 2005

Terri Schiavo: RIP

And also: The NY Jets won a bid to build a stadium on the West Side of Manhattan, after some dubious happenings that seemed predetermined from the start with no chance for the public to vote on the matter. Not a great beginning to what promises to be a convoluted process.

Terri Schiavo died today at forty-one, soon after the Eleventh Circuit of Appeals en banc rejected one more appeal with one judge concurring to hold the federal law intended to give the parents one more shot an unconstitutional violation of separation of powers. The opinion, though a bit technical, is convincing though it's enough to say that similar reasons make it bad on policy grounds. Two judges wanted to declare a stay and hear the appeal, but the others probably were sympathic to their concurring collegue.

Nonetheless, using narrow and traditional judicial rules, the court advanced the same point. And, that was probably the best way to do it. As one of the esssays linked by the previous article, there might be some limited cases where special congressional action is justified. It still is rather hard to determine how the special favoritism shown here would be, but so be it: no need for the courts to overturn Congress and rub their noses in it. As I noted to a regular reader, the courts have done their job in this case. And, they deserve some kudos for doing so, since summer patriots of federalism/judicial restraint wanted them to act otherwise.

I voiced some comments on this case before and some more comments are found here, after I had some time to sleep on it a bit. Sad case, but not atypical in the issues it raises. And, philosophically, maybe it is necessary for society and legislatures to now and again focus their eyes on one special instance. As a character said in the sci-fi flick The Core, saving the world is too hard, we need to just focus on saving a few at a time. This does not justify Congress' actions, though it does lead one to understand why they and the country at large focused on one family, as if many more could not fill their place.

But, on some level, it's sad. The now deceased woman, though many feel she has been partially dead for quite some time, lost a lot of dignity in the process. Theresa Schiavo's personhood (not to say that of her husband, who national legislators demonized, ignoring all he did for his wife) is put aside to promote the cause of life, her parents, or perhaps to oppose the alleged malice of her husband. And, even if totally honest people use her fate for totally benign ends (including supporting living wills, which all the same are not going to answer every question), this leaves a bad taste in one's mouth.

To take but a small thing, it is said that she fell into a coma after complications from an eating disorder. She had lost a lot of weight and her appearance was quite important to her. So, what happens? Her shell of a body and the unflattering pic of her face was splashed all over the place. It just seems like she might not like that. [In my paper today, I saw a pic like the one above, a seldom shown picture of her "before." But, then again, we (the nation) known her only "after."]

Some noted that even on health grounds, it would have been counterproductive if the parents won that last ditch appeal. The final rejection served as an appropriate last gasp as she herself was almost done though the parents remained (publicly at least) optimistic. And, now she is truly gone. R.I.P.

[As noted by Amy Sullivan, who provides some good religion and morals coverage, why all the fear in letting her pass way from the likes of the Catholic Church? Atheists, sure. I can see why they might feel life must be clung to at all costs.]

Tuesday, March 29, 2005

Air America Turns 1

And Also: A local news story on blogs used the case of Ellen Simonetti, a Delta flight attendant fired for posting "inappropriate" (loosely interpreted) pictures of herself on an anonymous blog about her career. As she discusses here, it is a troubling case. [Other employees posted their pics on the web and no clear policy outlawed what she did.]

The lesson might be that business related blogs should be truly anonymous, especially when you work for unsympathetic companies that do not have a union. On the other side, certain companies probably do have a case when their employees cross some line. As noted, anonymous entries are key. This is not a work related blog, but I find anonymous entries a good policy.

[Update: Liz Winstead called in during Unfiltered's last show on Thursday, and it was a touching and amusing segment. The two clicked, even if they aren't stars like Jerry Springer. Rachel Maddow apparently in now going to do some show at 5A.M. to fill-in some time until the morning show or something. That's a bit sad really.]

Air America is about to have their one-year anniversary. In honor of this milestone, Unfiltered will fully end (the failure to renew Liz Winstead's contract basically left it a shell of itself anyway), and Jerry Springer is due to fill the time slot. This does not quite bode well. The guy is not simply a joke -- he did hold office after all and has shown himself able to go into "serious" mode, and not for those phony serious remarks at the end of his old talk show. Still, he has (justifiably so) a bad taste to him, and it is not exactly a great public relations move. It is unclear if pre-op transsexuals and the women who love them will have any guest status on the show.

Meanwhile, the evening shows are knee-jerk affairs, even if there is something to appreciate (see NYT piece last Sunday on The Majority Report). Laura Flanders is in a somewhat different category, especially since she has some real activist chops (she paid her dues), but there is a certain knee-jerk feel to her as well. Overall, as I probably said in the past, the network really needs a bit of an independent edge.

For instance, it was almost shocking for Katherine on the Al Franken Show (she's the co-host, but mostly stays in the background ... the mean would compare her to Al Colmes) to voice concern of a guest mentioning Roll Call (covering Congress) in the same breath as with such conservative propaganda rags like Newsmax, just because both had arguably unbalanced reporting on a certain liberal advocacy group. She was a bit defensive in doing so, as if an even moderate "well wait a minute now" comment of this nature was somehow not quite appropriate.

This is sort of why I liked the original Unfiltered duo -- they had different personalities and played off each other well, and sometimes even had a different take on a particular issue. And, they each had a fairly equal role in the show. The early morning show also has this dynamic, though it is on too early for me to hear it that much to fully judge its flavor. I did enjoy the duo the times I heard them. Is it not possible, though perhaps like the Mets bullpen situation it just has to be taken as a fact of life, to bring in an enthusiastic liberal that has some independence in him or her as well? Not that the conservative talk radio circuit, from what I heard, is much different. Still, we do not want to be like them, right?

A year in, Air America still has the problem -- the newcomer might (rightly) determine that there is a basic cant that dominates, one that is not only unbalanced, but is kind of boring after awhile. If fair, this person will also determine there are some good guests and the hosts make good points ... they serve a purpose. Still, a few of them are truly annoying (who likes Randy Rhodes? really?), cross some line into offensive overkill (Mike Malloy), or lay left leaning bona fides on just too thick (Laura Flanders).

The true need these days is a courageous, fearless, and complex set of voices ... Air America does not quite do it, though it can be an important part of the general effort.

Saturday, March 26, 2005

Books and other things for the eyes

Movies. Mel Gibson cut a few minutes of violent footage from The Passion, apparently to make it more friendly for family audiences. Not having seen either one, I cannot judge things, but this sounds akin to making moonshine the family beverage of choice by taking 1% of the alcohol out of it. Still, there are other movies and things to do while not concerned with Easter weekend happenings ...

The Upside of Anger is the second excellent Joan Allen film this year, after Off the Map, and apparently a third (Yes) is on its way. Anyway, Kevin Costner plays an ex-baseball player (a Detroit Tiger, apparently following his perfect game in For Love of The Game), so that alone promised to make the movie worthy watching. After all, except for perhaps that last film, all his sports movies have been eminently watchable.

This is not a sports movie, nor is it really about Costner, but it truly is well worth watching. Joan Allen plays an upper middle class woman not only angry, but thoroughly pissed, after her husband leaves her and their four girls. And, she is not just angry about that -- her daughters aren't choosing paths quite matching what she would have wished.

Joan Allen's character is not that lovable, even if we can understand her pain and drinking. It does retain our respect, however, as does Costner's character, even if on first blush he is a bit of a loser. The movie also allows time for each of the daughters and a refreshingly shallow co-worker, all providing their own stories. It all ties up into a superior whole with Joan Allen making an early bid for an Oscar nomination.

Television. The NYT Sunday Magazine last weekend had an article on the Canadian teen drama/soap opera Degrassi: The Next Generation, accessible in the United States through the Noggin Network. It gave it the respect it deserves, not only for its superior plots and acting, but because of its broad popularity. The show received some notoriety a few months back because an episode dealing with a teenage character's abortion was not shown here.

I was able to have someone download it, though was not able to see Part I on my computer. Part II, the actual abortion episode, was quite good. It examined the issue from different sides, including the father's (from a broken home) desire to have a child of his own. Also, somewhat against type, the teen crusader of the show comes out as against abortion but able to defend her friend's right to make the choice.

Books. I was able to purchase a cheap copy of Ellen Alderman and Caroline Kennedy's book In Our Defense, which discusses the Bill of Rights by providing the stories of some who won and lost cases involving them. Re-reading it, again, I found it very good with a good ear for storytelling. It also is important to remember that the Supreme Court is not always the end of the line; it fact, it often is not, for the litigants' whose cases reach that far.

For instance, Tison v. Arizona is a well-known felony murder case in which the defendants ultimately lost 5-3. Nonetheless, it turns out that though the actual shooter that was caught (their dad died of exposure after escaping) was executed, the Arizona courts ultimately found the Tisons not culpable on remand. [After the book went to press.] The book itself noted of one case where the plaintiffs lost, but Congress decided ultimate to protect their interests anyway. Life, as always, is a lot more complicated than some might think it is.

Walking Dead is a teen novel that explores suicide, group dynamics, and the realization by a popular girl that there is more to life than what she took as a pretty fine existence. It also uses poetry to try to get into the head of a unpopular girl that Megan, the protagonist, finds is not quite who she thinks. The author is Australian, so it takes place down under, which gives it an interesting pitch. It's a reminder that adults can get something out of "teen" fiction.

Thursday, March 24, 2005

Dana's Bias

And also: More on the So-Called Tort Crisis.

BTC News has spoken about the value of blogs but a discussion over in Gadflyer is of some interest. An opinion piece by Dana Milibank, who provides consistently informative pieces, entitled My Bias for Mainstream News was linked. In part:
Partisans on the left and right have formed cottage industries devoted to discrediting what they dismissively call the "mainstream media" -- the networks, daily newspapers and newsmagazines. Their goal: to steer readers and viewers toward ideologically driven outlets that will confirm their own views and protect them from disagreeable facts. ...

It's fine to argue about the merits of the Iraq war, but these views are just plain wrong. Duelfer did not find weapons or active programs to make them; the 9/11 commission found no "collaborative relationship" between al Qaeda and Iraq. ...

Organizations such as Bozell's Media Research Center, David Brock's Media Matters, and scores of partisan outlets on both sides that back them up, are devoted almost entirely to attacking the press. Those on the right are so practiced at citing liberal media bias that they've assigned it an abbreviation: LMB. Left-wingers, meanwhile, complain about a timid, corporate media that helped Bush get reelected and led the nation to war in Iraq.

The essay would have been more convincing if it did a better job answering the critics. After all, the media's record on the whole WMDs issue and other "necessary" reasons to go to war was a tad bit mixed, including Priest's own paper. The cynicism of some, including some blogs that provided alternative views in a consistent fashion (not piecemeal and therefore of questionable value) was grounded in reality.

There always was advocacy journalism; in fact, early newspapers had a clear point of view. And, these news sources at times had a questionable handling of the facts. Nonetheless, some of them had a better handle in some cases than the mainstream press. Who was more informative in the long run in the antebellum period on the subject of race relations and such? The Liberator or regular weeklies?

The same might be said today on certain subjects, unless a person can truly say with a straight face that many papers actually provide a well-rounded look on certain issues. Since a third of the news coverage before the war did not concern anti-war groups, this is debatable. The same applies to many other subjects that rarely receive extended analysis, surely not on a consistent basis.

Many of so-called mainstream news sources had (and in some sense, continue to have) misleading comments that Priest somewhat misleadingly implies is the bailiwick of conservative news outlets. I'm not just talking about WMDs. And, media watch groups are right to point this out. Also, see the book The Frame Game for how a particular point of view can cloud reality, even if each and every fact is on the whole correct individually. For instance, mainstream coverage of the latest bit of hypocrisy coming out of Washington leave out or fail to highlight many important wrinkles that blogs and other sources focus upon.

The country is greatly divided in many ways and it is infecting how we view the news. Nonetheless, more sources of news is not necessarily a bad thing per se, and it's not like everyone read mainstream neutral reporting back in the day. Also, I too think those who I relatively agree with sometimes tend to exaggerate. The mainstream (not a bad word, really) press has a lot to offer, as shown by the amount of times blogs link to them. And, part of the problem is the failure of the Democrats like Gore to play the system properly. But, the system was played, and the press at times did not do a good time stopping it.

In the end, Dana Priest showed his bias, but did not quite do a great job defending it.

Wednesday, March 23, 2005

Polygamy and Mormon Marriage

[A JP classic concerning the article named in the title.]

The theme of Lawrence Foster's piece on the practice of polygamy is that the reasoning used by Mormons to justify the practice was logical though the practice was hard for some to accept. Furthermore, Foster pointed out that the practice was beneficial both to the Mormon community at large and to the women involved in various ways though many saw it as a sacrifice they needed to take to strengthen their religious community. Primary sources from the period support these arguments -- Helen Mar Whitney centered on the sacrifice while Sir Richard Burton spoke about the religious and practical reasons.

Foster discussed an interview with Mormon wife Mrs. Richards that pointed out the sacrifices of polygamy including the end of the ideal of romantic love between a two people. This pointed out the "intense personal commitment and the difficult personal renunciations" involved. Helen Mar Whitney discusses this in her defense of polygamy. She pointed out that both sexes had to sacrifice in polygamy, including the man who had to take care of many wives -- wives, who had the power not to also give aid to the man.

Whitney highlighted the "piety, purity of life" that is the ideal in polygamy and glorified these ideals over those "so narrow minded as to think of no one's comfort and pleasure but their own." This is a reminder that polygamy is not for self-interest, but for the interest of creating a new kingdom of God in the desert. It may require self-sacrifice (Foster noted only 15-20% practiced it), but it has the rewards of salvation.

This idea that polygamy was not meant for one's own pleasure was also noted by Sir Richard Burton. He noted that the Mormons backed up their practice by readings of the scripture and that morality was used to prevent abuse. The key way this was done was to forbid sensuality in marriage unless it was for the purpose of reproduction. This also helped to address the need for more population to increase of number of "God's people," especially with the dearth of men vis-à-vis women (either by population or men away to preach).

Foster gave many reasons why polygamy may be positive to the Mormon community. He noted that it gave status advantages, which Burton noted was a key way women were instructed to accept the practice while Whitney noted it was a status set by piety. There was a great status ("almost cosmic importance" to home and family life that lead to a great value to women, who had the purpose of caring for them. Children was also important because of the need for a work force to settle the land and improve it via irrigation and other ways that took a lot of work. Burton referred to this as an economic motive to have cheap labor via marrying servants (women) that have children to increase the work force.

Foster also noted that the lack of emotional ties of a single partner marriage plus husbands being absent for long periods of time was made up by sisterhood among wives (Burton also noted this development). This also led to women to have more independence since they had to do many "masculine" tasks when the men were absent. They even were given the vote in Utah to show this importance and to strengthen the Mormon vote. The importance of women to make the male happy that Whitney spoke of was therefore quite true.

Men also had a higher responsibility in the system of polygamy. Foster noted that women had a much higher chance to get a divorce in a both socially and legally accepted way, while men had the job of caring for their wives. Burton noted that men with many wives had obligations that led him to in "his interests if not [in] his affections, bind him irrevocably" to caring for his wives, so that polygamy promised security for the women involved. "Brigham, Brigham Young," an anti-Mormon folk song noted the heavy responsibility of the men in polygamous marriages in a satirical way.

Foster's piece therefore validly pointed out that the Mormon practice of polygamy had positive attributes for both sexes and was logical with the needs of the society. The primary sources shows this validity, but also points out the burdens that polygamy contained in order to further religious and social ends. Therefore, the Mormon practice of polygamy can't be examined via a narrow-minded fashion either by supporters or detractors of the practice.

Tuesday, March 22, 2005

A few more comments

A few additional comments on the Terri Schiavo saga. As noted, I had a basic belief that the system was perverted in this case, but a deeper examination of the history of the case would be productive as well. If one follows the links provided, there are various blogs that do just that -- and do so more expertly than my humble efforts can offer.

The matter has obviously been greatly debated, but as unsurprisingly, there has been some misunderstandings. One that troubles me is the complaint that it is silly (see, e.g., Dahlia Lithwick over in Slate, and fray responses) to suggest Congress violated the "rule of law" or was particularly hypocritical and/or abusive of its powers. The confusion arose, looking at some of the comments, from the difference between usual no bottom of the well congressional power and singling out one case of thousands for unique treatment.

As I myself noted to one critic, this is not a matter of Congress setting up a national Living Will Law, something largely ill advised. It is favoring one specific family for special treatment in this area. If this is not a violation of the "rule of law," what exactly is? The rule of law concerns consistent application of legal principles in a fair way without special favors or arbitrary action. Congress surely favors certain groups and sometimes individuals, especially when formulating tax policy. It does not single out one particular family and ongoing lawsuit when setting forth jurisdiction rules for the federal courts. In other words, Congress is no angel, but this is a particularly devilish act.

Others are annoyed by the vitriol some people put forth in response to Congress' actions. This is equally annoying. It is quite human, and proper, to respond to blatant hypocrisy in such a way, especially if it is particularly crude use of human trauma. Surely, glorified spittle will be of little value, but quite often the passionate responses put forth some rather good arguments. I'm fully appreciative of fully calm and rational denunciations of the hypocrisy, but for each there is a place.

Finally, the fact that the federal judge (unsurprisingly) rejected the petition to overturn the decisions of the state courts suggest just how ridiculous the whole affair truly was.* Some might consider it not a big deal, and perhaps the Democrats felt it was the best they can hope for -- a singular act that probably would not have much effect.

The problem is twofold. First, poll data suggests that the people would have supported a principled rejection of the Republicans' push for this legislation. Yet again, principled action might have been the best path for the Democratic Party. And, second, it remains a totally unprincipled and cynical act. The harm of such legislation is not limited to its individual reach -- it poisons the well in a greater and more profound way.

The fact it had so little effect in that fashion makes it all the more distressing. Terry Schiavo has been misused and the door is left open to yet another such abuse -- perhaps with much greater effect -- in the future.


* One argument offered concerned protecting her right to practice religion. This puts the cart before the horse because the whole issue is to determine her wishes, including her moral beliefs. More troubling, some mention was made of her Roman Catholicism, which would complicate the matter.

How can one assume that even regular church goers accept all aspects of the faith? A good third, by some accounts, do not support its stance on abortion. This is a glaring case of the dangers of relying on parents' sayso, especially when how one is raised is often a rather imperfect view of one's current beliefs (the rule surely applies to me in certain respects).

Monday, March 21, 2005

Terry Schiavo Law: Or The Lawlessness In Her Name

Today was the first full day of Spring ... it begun with a simply disgusting act of Congress that reaffirms how pathetically our leaders currently serve the American people. At some point, it just is too much -- over and over again something is done that is just plain wrong. I mentioned the various nominations that any rational person would find offensive. Nonetheless, a few acts underline just how wrong things are today.

Congress going out of their way to interject themselves in a single family's dispute over proper medical care, one the state courts repeatedly decided the other way, is one such act. Honestly, when I heard that Congress' extraordinary Palm Sunday machinations had led to Terry Schiavo's feeding tube being re-inserted, I felt physically ill. Why should we be proud to be an American, if this is what we stand for?

As with simple moments of clarity, there are two levels of understanding here. The basic one is this: Terry Schiavo married, had a heart attack that led to brain damage [I mistakenly thought she had an accident, and I'm probably not alone ... in fact, ironically, bulimia apparently was the ultimate cause of her fate] and her husband chose what he felt was her wishes. He did so only after years passed and many things were tried to help her.

A guardian ad litem was chosen when he wished to remove treatment, but the trial judge found his investigation incomplete, and thus of limited value. The courts, repeatedly, agreed (using clear and convincing evidence, a higher standard of proof than more likely than not) ... this is what state law, and simple common sense would appear to command. The judge used Terri's own statements, noting comments allegedly to the contrary (put forth by her parents) were said when she was about twelve, though at first they thought she said them a lot later.

Doctors testified, using a lot more than the hearsay and uneducated [Sen. Frist is a heart surgeon, not an expert on her condition] proof some now put forth, that she was in a persistent vegetative state. [Not that P.V.S. is necessarily the only time one can refuse treatment, including nutrition, but it makes things even clearer.] About fifteen years has past. And, the fact the parents and some family (hubby is family too) disagreed is besides the point -- your spouse is your legal guardian in this case, and independent courts repeatedly agreed his decision was backed up.*

This is all that is necessary. It is nauseating that those who don’t agree with the decision twist the sanctity of marriage, the rule of law, and the facts themselves. Thousands of times a year, if not more, family members have to make similar horrible decisions ... as noted by a member of Congress from Florida, who noted that no one said another (federal or state ... the latter rejected by state courts as an unconstitutional interference with an ongoing lawsuit) stranger had to agree when her family recently made a decision involving ending care of a family member.

And, sometimes, families disagree. Thus, we set up certain people as presumptive guardians, and (the somewhat rare times when it goes that far) have hearings to determine if their decisions are correct. And, therefore, privacy is protected with safeguards in place.

What is special about this case? It is surely not relevant that she lives in the state where the president's brother is governor, is it? Or, that the parents have obtained the support of right to life groups? [I will forestall with the scare quotes, but cases like these suggest such how subjective that term is.] We all can be sympathetic about what the parents have being going through, but let's not suggest there are truly special. No more than the families of the other thirty-five thousand people in a p.v.s. state.

No freakening way -- and at some point, my sympathy ends. Others have to make similar judgments, judgments that will be harder now that the parents here supported extraordinary means to overturn the will of their daughter's guardians and the courts that upheld his judgment. Likewise, when the mother ... this was sickening ... suggested those against the federal legislation were playing politics, that was just too much. Is she that naive? That dumb? Honor those who help her do what she feels is right, but blindess of reality is not worthy of our respect. Our sympathies must have limits.

In effect, it's a sort of bill of attainder, in which a legislature acts as a court and limits of the rights of a particular person. Just so you know, this unconstitutional per Art. I, sec. 9. One of many breaches accomplished by this tour de force act of legislative extraconstitutional lawlessness.

This is where the deeper aspects of the situation truly come in. As already noted, this is far from a unique situation. And, it has been going on for years -- much longer than this sort of thing generally does. So, for Congress to single out this case, at this time, is remarkable. We can respect those who have a principled opposition across the board to abortion or removal of treatment, but special treatment of one case -- and one side (railing against the husband and doctors who support him) -- simply crosses the line. As a deeply angry, as well as astute, CBS legal analysis of the case noted (read the whole thing):
Congress is intruding so far into the power of the judiciary, on behalf of a single family, that it is breathtaking. It truly will be fascinating to see how federal court judges react to this-- whether they simply bow down to this end-run or whether they back up their state-court colleagues. And it will be interesting in particular to see what the Supreme Court does with this case. Even the conservatives on the High Court-- and the Chief Justice in particular-- must be concerned about the precedent this sort of legislation would set.

The analysis pointed out that it is likely that in the end, and some in Congress surely know this, the federal courts would agree with the state courts' judgment. As to the parade of horribles involving removing the feeding tube, the NYT had a sidebar piece suggesting that even those conscious who choose to refuse nutrition find this relatively painless -- the worst part relates to dry mouth and that sort of thing, which can be properly handled. Of course, since she is in a P.V.S. state, the whole thing would be even less problematic. The whole point of this state is the lack of the sorts of pain and feeling that people immediately worry about when they think about this sort of thing.

And, what about this sickeningly earnest support for "the culture of life" that so many from the President on down is so keen about? Where to start? This Congress has failed to pass a law that even in a small way limits torture and provides additional oversight over the deadly confinement (Atrios notes that less than ten more P.O.W.s died in North Vietnam during the whole war than prisoners thus far in the wars in Afghanistan and Iraq) and day to day activities (such as checkpoints) of the current war.

Let's put things like that aside. Texas, in a law signed by you know who, made ability to pay the touchstone (even over the wants of the parents) in "hopeless" cases. Not even those where the individual is not conscious or able to make their desires known in some fashion. Republicans in Congress want to cut Medicaid, funds that in part go to pay for medical care.

Terry Schiavo's care is currently being paid by funds from a medical malpractice lawsuit that "tort reform" might make obsolete. The Bankruptcy Bill would not exempt families bankrupted by the costs of such care. And, those who support "The Defense of Marriage Act" (and oppose thee use of the courts to overturn state legislation, natch) are doing their very best to make Terry's marriage of no importance.

The Democrats did not show much guts here. A few, including Rep. Holt (known by Air America listeners as a supporter of an important bill to require printouts of electronic voting), went back to Washington to speak out against this travesty. A nod also to the few Republicans who voted with the fifty or so members of the House that had the guts to be on the record against the bill.

Democrats in Senate thought the best "compromise" approach would to support a limited law -- which as noted above is patently unjust favoritism -- only dealing with this one case. One article, the news coverage by the way tended to leave out many important issues that now dominate the liberal blogosphere, noted that just one ... ONE ... senator could have placed a hold that would have stop the legislation. Oh, my two senators decided to sit this one out.

The bottom line in many people's eyes is the need to have a living will. People in their twenties, and this case is not the only one of this nature in which tragically that was the age involved, do not usually have living wills or discuss in much detail their desires should something like this occur.

I know someone three times that age that finds it very hard to even consider writing a regular will, and the person is surely not alone. Nonetheless, lest we think a living will would solve everything, few statements of this nature cover every possible situation. Choices still will have to be made, choices self-righteous legislators and competing family members can use to challenge the judgments of those given the right to carry out the person's wishes.

They are very important, just as statements that you want your organs donated and so forth, but all Congress needs is one politically convenient case to grandstand on. One case to ... yet again ... make it uncomfortable to admit that they are our leaders.


* Terry's husband has supported any number of means to help his wife, all that have shown to be fruitless. Some means offered to help amount to nothing much -- for instance, easing her swallowing, a reflect action that is as notable as the few edited shots that people point at to suggest she actually is in some way conscious. Others raise the point that the husband now has a mistress, who he apparently plans to marry once Terry dies.

This is put out to show that he really doesn't have her best interests at heart. They tend to ignore his refusal to be bought off, suggesting the money from the judgment against the hospital would compensate. Not too much longer, I think. Anyway, he did do a lot to help her, and independent courts have repeatedly said that his judgment was independently verified. I would not rest completely on this verification, necessarily, since it was somewhat vague. Not surprisingly. It is enough, however, to use this as well as everything else to dispute claims of bias.

Finally, and I noted this before, some spouses would not begrudge such companionship (it's not as if it began the day after her accident) in the current situation. The fact that some, quite apart from the bias issue, are willing to interject their own value systems into the equation is quite telling. As with any number of other choices of life and death, somewhat arbitrary personal values are involved. Would they want others to challenge theirs? Surely not ... of course, they are special. No one would ever challenge them.

Sunday, March 20, 2005

Sunday Reading

And Also: Good article on Degrassi. And, the NY Mets won -- though errors and blown relief (with a good lead via bats and Pedro) don't bode well. And, Steve "ol'reliable" Trachsel is due to be on the DL for months. [Update] Ishii was just traded for Jason Philips (good spring offensively, but lackluster 2004), which makes for a decent replacement, even if he does walk people a lot. Now, if Zambrano was a bit more consistent and ...

Interesting article in the paper today about a pregnant woman (Rebecca Eckler) who was living far away from the father of the baby. Eckler discussed how during the time away from the father that she basically had a "stand-in" boyfriend, though they made sure not to call it that -- and apparently, not all the benefits were involved.

Eckler moved before the baby was born, but now and again still saw the guy in a quasi-friend sort of way. It is unclear how the father, who one would think would know about the whole thing now (how not?), feels about the whole thing. After all, she said that she would have killed her boyfriend if he hung around with a cute funny woman in his free time. Then, again, he wasn't pregnant.

The article mentioned that she was the writer of a forthcoming book, Knocked Up: Confessions of a Hip Mother-to-be, but some might find that the article only told part of the story. First, though the article's tone might suggest so, Eckler was not your run of the mill sort. She covered the club scene in Canada when the unplanned pregnancy came, labeled by one review as "Canada's answer to Sex and the City author Candace Bushnell." Second, her somewhat uncomfortable "fill-in boyfriend" situation seems to fit in to her overall pregnancy existence, if we can go by the blurbs on Amazon.com:

Sometimes this mommy memoir feels like a humorous crash course in maturity, though at other points the author's attitude comes dangerously close to that of one who has a baby as a chic accessory. ... Those who see a bit of themselves in Eckler will identify with her maverick stance, but those take issue with smoking and drinking during pregnancy (she cuts down but doesn't quit) and elective C-section (she didn't want to go through labor) won't be charitable. Straddling the two camps will be the ambivalent few who feel they should be infuriated but can't help secretly admiring Eckler for admitting that she continued to smoke and drink.

The "Modern Love" (though the amount of time couples were separated in past eras, the themes in this piece had a certain timeless quality) article has a nice down to earth quality. The book sounds a bit less so, though it might appeal to its target audience. The article and book sounds like a pretty good example of choosing different tones depending on your medium.


On the subject of books, I found about In America's Court: How a Lawyer Who Likes To Settle Stumbled Into A Criminal Trial when its author (Thomas Geoghegan) wrote an amusingly on target Slate article on Social Security (we just don't have the energy to want to have to decide one more thing, such as what to invest in our private accounts, ownership society or no). It received some good reviews, but I found it a bit lacking.

He has an amusing and on point style, but his "stupid guy" routine as he helped a friend with a re-trial of a fifteen-year-old's case (now twenty-two, in prison those seven years) was a bit annoying. Geoghegan has some useful things to say about law and justice, and it was easy reading (small paperback, a bit over two hundred pages), but nothing special.

To be fair, this might be a result of reading some rather effusive praise about the book beforehand: maybe, I expected too much. Still, sort of a good few articles spread too thin in book form. In fact, it's closing brief for "human rights" and "international law" felt separate from the rest of the book, though the defendant's story might have been a good example why such law is so necessary.

Saturday, March 19, 2005

He Knows How To Pick 'Em

Holiday Alert: Today is the last of a trio of patron saint days. The most well know is St. Patrick's Day (3/17), followed by St. Joseph's Day (3/19), patron saints of the Irish and Italians, respectively. Nonetheless, what about Irish/Italian mutts like myself? As noted last year, I have declared a new day, St. JP Day (3/18), for this very purpose. The symbol (under advisement) is a leprechaun eating a slice of pizza or maybe a plate of pasta. I was thinking St. Joseph drinking some beer or eating a potato, but that doesn't quite work. The color would be blue and/or black, which are my colors, since I really do not care for green and no color is really associated with the Italians (red for tomato stains?).

First George W. Bush picks UN-basher John Bolton to be ambassador to the United Nations. Then he nominates Karen Hughes, a champion spinner who has little foreign policy experience, to be under secretary of state in charge of enhancing the United States' image abroad. Next, Bush taps Deputy Defense Secretary Paul Wolfowitz to run the World Bank. ...

In 1967, Robert McNamara, the captain of the Vietnam tragedy, left his post as secretary of defense to become president of the World Bank. So Bush is establishing a bipartisan tradition: you screw up a war, you get to run the World Bank. With this announcement, the impoverished of the world have less reason for hope.

There are other explanations. First, the current president is James Wolfensohn, so you have the lupine angle (Slate's Today's Papers noted this point). Kevin Drum, after noting in his Political Animal blog that such appointments at the very least look bad, later raised the sometimes heard suggestion that he was being "kicked upstairs." This is deemed as a way to admit error without really doing so, perhaps also an explanation of the Bolton nomination (though it has a kill two birds with one stone value given it gives UN-bashers reason to cheer).

Of course, this is a rather cynical way to "punish" someone, especially since the guy really does not have a resume that just cries out "expertise in World Bank type activities." Fred Kaplan over in Slate suggests his heart is in the right place -- he truly believed in a freedom promoting reason for war (as Wolfowitz noted, WMDs was the most marketable, raising means/ends problems since it was in effect an anti-democratic way to promote democracy), so maybe an institution promoting development is a good place for the guy.

OTOH, having your heart in the right place is not the same thing as being able to follow through on ones dreams in the best of ways. Still, to the degree the World Bank is a neocon friendly means to promote development, Wolfy might be the guy for it. Not that this is exactly a good thing.

The "kicking upstairs" justification can only be taken just so far. Should we also suggest this as the reason for the likes of Alberto "terrorist czar" Gonzales? Or, Condi "historical report" Rice? The nomination of Karen Hughes sounds like a nice retirement package, a lower key means for her to be on the payroll, and maybe get some frequent flyer miles.

How exactly it does not lead to more ridicule and cynicism is unclear. But, it all is part of a trend, including Porter "political hack" Goss as the head of the CIA. And, of course, the renomination of all the judicial nominations held up in the past, including those blocked more than once. Chief Justice Rehnquist, however, might not quite be ready to resign.

So, the time for the possible final piece (CJ Scalia?) of the puzzle has yet to be applied.

Friday, March 18, 2005

Congressional Watch

Don't Move: It's not like I see that many foreign films so that the stars become recognizable from film to film. Thus, it is notable that I saw Sergio Castellitto in Mostly Martha and Don't Move, two quite different, but very good films. The former has some serious undertones, but Sergio plays a lighthearted character. The latter film perhaps can be seen as the dark side of his character, or rather, all sides. Penélope Cruz is also excellent as the woman he rapes but eventually falls in love with -- we see this in a flashback as he waits for the operation on his teenage daughter (with his wife). The movie does not really explain the rape ... it asks us to take it largely on faith to examine the aftermath. And, though a bit long, it is an excellent character study. The controversial issue is obvious, and not all viewers will accept it, but it is worth watching to decide for oneself. For instance, it might teach a lesson in domestic violence.

The Senate voted 55-45 to cut the Social Security taxes of wealthy Americans, thus providing more tax cuts than even the President asked for, while re-instating some Medicaid cuts, the latter issue by the way argued to be what we really should be talking about these days.

On its face, it is nice that they decided the cuts were a bad idea, though what we really need to do is to seriously examine the problem of the system at large. The Social Security matter is of the "no comment" variety -- the way to deal with the problem of Social Security solvency is not really to take less money is, even if it is done privately. In other words, we are not just talking about private accounts here -- we are talking about less taxes for the rich, thus taking money away from funds for those less well off.

CIA director Porter Goss also testified:
Under sharp questioning at a hearing before the Senate Armed Services Committee, Mr. Goss sought to reassure lawmakers that all interrogations "at this time" were legal and that no methods now in use constituted torture. But he declined, when asked, to make the same broad assertions about practices used over the last few years. ...

In the session, Mr. Goss was challenged by Senator John McCain, an Arizona Republican who spent years as a prisoner of war in Vietnam. When Mr. McCain asked Mr. Goss about the C.I.A.'s previously reported use of a technique known as waterboarding, in which a prisoner is made to believe that he will drown, Mr. Goss replied only that the approach fell into "an area of what I will call professional interrogation techniques."

He vigorously defended "professional interrogation" as an important tool in efforts against terrorism, saying that it had resulted in "documented successes" in averting attacks and capturing important suspects. Mr. Goss said that Congress had been kept fully informed of the techniques used by the C.I.A., and that those currently being used did not constitute torture, which is prohibited by law.

This is a new way to define "professional" -- professional now means "productive." If this is the case, it is unclear if the hearings on steroids fit the term. To the degree that they might be useful, I support such discussions. Why shouldn't the government on their owns examine the issue, since it involved federally regulated substances and the national pasttime as well as practices that affects much more than a few baseball players and their fans? For instance, parents whose children died of steroid use testified, and studies have found that thousands of high school students used or are using some form of steroids.

Nonetheless, the value of questioning the likes of Curt Schilling* is questionable, especially how it was done. Part of the problem was that the news coverage alone required full attendance of the committee members, some asking questions that honestly were pointless. Still, I think something might have came out of it, if only a bit more pressure on MLB to be serious about the issue. The attention alone forces their hand a bit, adding pressure to firmly enforce their current policy and keep alive talk that a stronger one is necessary.

It surely is a more legitimate use of their time than trying to intervere with tragic disputes involving when an incompetent patient might want their feeding tube removed. Congressional Republicans went as far as trying to call Terry Schiavo as witness, hoping the courts (which already rejected an attempt by state legislators to interfere with pending litigation) would "protect" her now that she was technically a federal witness. This is offensive -- would these people want Congress to interfere because they disagreed with how they acted in a similar situation?


* Mark McGuire really looked sad and pathetic as did Sammy Sosa, both of whom just might not be made for the national stage. The presence of Sosa's female translator, the only woman among a panel of ballplayers, was striking. On the other hand, having Curt Schilling calling a former player a "liar" was good television. Likewise, all those snide comments about Mark not saying anything that might have led to criminal penalty was a bit too snarky. If Congress was allowed to supply immunity, maybe more useful testimony would have been possible.

Wednesday, March 16, 2005

Few Things

Social Security: A couple good blog pieces on the Social Security debate, including David Brooks' whining about it, can be found here and here, both putting it in a wider context. Along with the Nicholas "bash the Democrats for not being centrist or evenhanded enough" Kristof, and the overly bitchy (if often on point) Maureen Dowd, the NYT editorial page sometimes leaves something to be desired.

The legal columnist Nat Hentoff has often said that the former Justice Brennan's best advice to him regarding his craft was "to tell them stories," real life stories that show the principles of the Constitution in action. Good advice indeed, also useful when covering historical events and many other things.

Ellen Alderman and Caroline Kennedy followed such advice in In Our Defense: The Bill of Rights in Action, though left a few provisions out while doing so (the most glaring is the Establishment Clause -- unlike the likes of the Excessive Fines Clause, surely there were quite a lot of choices to pick from).

I read this fine book years ago as well as the sequel respecting privacy rights, but felt compelled to purchase a copy when discovering one for less than $5 (including shipping) could be found on Amazon.com. A charming inscription (that reminds me a bit of the author of a blog I know) to the original owner was included as part of the bargain:
For Michele:

A lawyer? perhaps. A wonderful person and a beloved daughter? -- Always! Happy Birthday with all our love. We are so proud of who you are! Mom. Dad.

Talking about legal issues, a discussion of the latest development of the battle against sex specific marriage laws in California is found here. Reading the opinion, I just hope the California Supreme Court deals with the issues involved a bit more comprehensively, including state interests, gender discrimination, and the true nature of a fundamental right to marry.

Tuesday, March 15, 2005

Justice Scalia Misleads America (Again)

Heterogeneous Nudity: The inside page of the NY Daily News, showing its tendency to always print the important news, covered a photography project involving topless women in public areas. Apparently, as proven by a few well-chosen shots shown, the populace was mostly blasé about the whole matter. The website was supplied and my concern was the homogeneous nature of the photographs, basically thin young white chicks. There was a shot of a pregnant woman and a nursing mom, but come on now. This is NYC! Not only should there be some women of different sizes, they should be of various races and ages. I'm willing to bet if a Latina or a woman especially well endowed (perhaps one in the same) was photographed, there would be some reaction.

Justice Scalia was on C-SPAN yesterday promoting a strawman argument against the Living Constitution, a caricature version railing against jurists and others that apparently want the courts to just make up things as they go along. It was offensive in that we had a supposedly very intelligent guy, an U.S. Supreme Court justice many think should get a promotion, just being full of shit. The audience appeared to know this, if the expressions on some of their faces could be taken on (ahem) face value. No matter, I know it was what I was thinking.

The concerns of those that believe the courts are too flexible and loose with their reading of the Constitution are worthy of respect. Nonetheless, it is intellectually dishonest (especially for those respected for their intellect) to make the case in a completely shoddy way, especially when your audience (here, ultimately, America) might be misled by the supposed expertise of the speaker. You might say that the ultimate example of someone making it up as he goes along is Justice Scalia's remarks in this speech, since clearly the words of the Constitution and history behind them surely did not compel his approach.

Various examples from his remarks can be used, but a few should do the trick. The most ridiculous was his reference to his unanimous confirmation vote. This was a case of the times of recent past when being a good lawyer and such was enough, not ideological litmus tests, a clear result of the growing powers of the courts inclined to follow the living constitution approach. He failed to comment on a few relevant factors. First, the Senate's energy was largely spent in the controversial nomination to promote Rehnquist to Chief Justice. Second, President Reagan did not tend to nominate great liberal lawyers to the bench. Finally, throughout our history, ideology was a factor in judicial confirmation battles.

Not that his examples of how the courts have made up things as they went along were much better. For instance, he referenced NYT v. Sullivan, which apparently out of nowhere found allegations of libel against public officials to be a First Amendment issue. A few years after the Senate first opposed a Supreme Court nomination on ideological grounds, however, there was the whole debate over the Alien and Sedition Acts.

If Justice Scalia read Sullivan, he would have discovered a major point of debate was the question of how far the government can constitutionally go in fighting libels against public officials. Appropriately applied? You decide. Whole cloth? No.

Not that only the infamous Warren Court was the only source of Justice Scalia's spleen. He also found a 1930s opinion (respecting federal prosecutions) protecting the right of indigent offenders to have a lawyer, paid by the state if necessary, as clearly not covered by the U.S. Constitution. A reading of the opinion and of history will again inform that though the matter might be debatable, it too was not just drawn out of whole cloth.

It is in fact this strawman approach, the idea that the other side is totally outrageous, that truly rankles. Where did an opinion protecting the right of gays from blanket discrimination come from? The Equal Protection Clause? How about excessive punitive damages? Due Process and Excessive Fines Clauses?* And so forth.

[And so forth. Why stop at the 1930s? Or 1920s, as he did in the speech. His view of the Eighth Amendment was opposed by an opinion in 1910. Oh, he did use Dred Scott to point to the "first" case of using due process to target the substance of laws. Aside from being a misleading reading of the case (ultimately based on the power of Congress and the rights of blacks/slaves), the general idea was already starting to be addressed in state decisions and general legal thought. In fact, the ultimate principle harkens at least back to the 1600s. Strawman arguments, however, do tend to fall apart when looked at more closely.]

Justice Scalia also finds the whole Living Constitution movement as a violation of what federal judges are supposed to be doing, downright illegitimate. I say "federal" judges, but he often just says "judges." Thus, it is somewhat unclear if he thinks British judges act illegitimately when they follow a common law method to interpret the British Constitution. The rejoinder, though trying to prove too much again given the breadth of its written law, is that this constitution is unwritten.

Nonetheless, again, this does not quite work. As many argue (though Scalia said that there really are no standards if you are not an originalist), the vague and open-ended clauses of the Constitution set up a system of law that develops over time. It too is a "common law" system in many respects, though cabined by the limitations of the words and basic intents or understandings behind them. In fact, many so-called living constitutionalists argue they they truly are originalists. So, maybe Scalia is right on that point!

None of this is truly new, though the growth of the power of the courts leads some to try to ignore the fact. It is one thing to oppose the degree of something; it is quite different to oppose the very principle behind it. Those that find the courts too powerful or too loose with the written Constitution have something to teach us. All the same, they do not really help their cause (surely not honestly, though Scalia is not lying per se – except to himself) by using false and empty arguments to try to rein them in.

A justice who has joined quite a few decisions that limited the powers of the people to govern themselves really does not convince many more than those who want to be convinced that his true concern is self-government and limited judicial power.**

These remarks underlined why he is not fit to be Chief Justice, and why a President who finds him a model of judicial action is not to be respected too much either.


* The Due Process Clause requires a fair procedure before property, including money, is taken away. The punitive damages cases determined that certain criteria must be in place to regulate the fairness of such procedures, including not being blamed in state courts for out of state actions. Likewise, Justice O’Connor and others argue that punitive damages (by the very name, they are at least quasi-punitive in nature) are a type of fine, which must not be "excessive."

It is one thing to say that the guidelines are too hazy for the courts to be able to regulate such issues, or even that punitive damages are not really covered by the provisions. Quite another to say that such concerns are so clearly not addressed by the Constitution that those that argue otherwise are downright specious and/or just trying to provide makeweight supports to their individual policy concerns.

** If he wants to target abortion and gay rights opinions, the other side can point to his opinions against affirmative action, campaign finance laws, federal legislation protecting the rights of handicapped state employees, various environmental regulations, and laws against flag burning. The last one in particular would have surprised many of the framers.

This does not mean Justice Scalia's rulings on such issues were wrong per se, though some were, it means that originalists also limit democratic action. I would not say their interpretations are ridiculous though, since they are not – they often are worthy of some respect, if not enough to carry the day. Of course, Bush v. Gore might be used as a ready rejoinder, though we need not use such a controversial opinion to make the point. Many others are readily available.

Monday, March 14, 2005

No Comment

WASHINGTON, March 14 - Karen P. Hughes, one of President Bush's closest advisers, was nominated today to be under secretary of state for public diplomacy and given the mission of trying to repair the image of the United States around the globe, especially in the Arab world.

"We must do much more to confront hateful propaganda, dispel dangerous myths and get out the truth," Secretary of State Condoleezza Rice said in announcing that the president had turned again to Ms. Hughes, who by all accounts has Mr. Bush's ear and confidence.

The Lonely Doll

Media Watch: Life seems complex and complicated to me, so I find it troubling when people try to simply. Many find modern media as lousy, letting the devils do their business with little real control. The criticism hits home, but then I read things like yesterday’s NYT with its coverage of how dangerous sites in Iraq was left largely unguarded and an extended piece on the fake news put out by the Bush Administration (and how television news is sometimes as guilty as they are of not labeling its origins) and am reminded – they sometimes do they job. Maybe not as well as they can and should, but still worthy of some true respect from their critics.

The story of The Lonely Doll was in large measure Dare's own story. In the book, a tour de force of wish fulfillment, she found a way to make things right, providing her alter ego, Edith, with love and rescue in the form of two male teddy bears, the father and brother whose real-life counterparts she had lost when she was young. She ceaselessly sought that rescue in her own life, which was spent posing, playing dress-up, and retreating into a fantasy in order to remain her mother’s "good and precious daughter," as if holding on to her mother and her mother’s love depended on that.

-- Jean Nathan, The Secret Life of The Lonely Doll: The Search for Dare Wright

Dare Wright was an intelligent and very talented person, especially skilled at design and photography. Such talents led to hours of enjoyment for fans for her books, largely telling the story of a doll named Edith and two bears that she lived with, pictures taken by the author provided in lieu of illustrations. The doll itself was a childhood gift from her mother Edie, a portrait painter, and the fact the stories was but a reflection of Dare’s own life and thoughts is not much of a stretch. She too was a lonely child, but no big father figure saved her. No, instead, her parents divorced at a young age, her father and brother going away from her, seemingly forever (the siblings reunited; the father died young).

Dare Wright’s own story is rather sad. Her mother was distant, but controlling, setting up a fantasy world of sorts with Dare as but a supporting character. Nathan’s book portrays the mother as a bit of a monster, but the reader is left somewhat sympathetic, since the mother’s own life was not a happy one. The way of coping is often less than desirable, and it does not justify, but does lead to understanding. No matter, Dare never did truly grow-up, helped by those who thought of her as a sort of fairy tale princess, pretty and ultimately untouchable … but lovely to know and be around.

This develops into a sad book. The reader wants her mother to go away or die, but she seems to be with Dare forever, and we realize that they are tied together, for better or for worse. What catches our imagination is the true breadth of the fantasy type existence that Dare Wright’s life becomes. Her brother is a tragic and lonely figure and their bond is strong. Her mother develops quite a number of connections with the rich and famous as does Dare in her way. Dare also uses photographs to create her own fantasy world, which ultimate leads to the Edith and the Bear books. And, once this fantasy world basically collapses, it is truly tragic to behold.

The true pull of this book, however, is the photographs. The distant memory of the cover of The Lonely Doll is what first drove the author to investigate the Dare Wright’s story. The picture on the cover is one of Edith, her striking face appearing to look at the camera, a book open on her lap (years before, Edie drew a portrait of Dare quite like it). The strikingly real photos of Edith and her bears (including a fetish sort of shot of Mr. Bear spanking Edith, after one of her many naughty adventures) as well as those of Dare (a few nudes) and some people in her life are a wonder to behold. [It is unclear if any are of the duplicate Edith, named Replica by her creator, but the very name suggests the charming genius of the author.]

The photographs along with the technique of using photos to tell a story led me to wonder if this would not this be a great way to write a book? One way to do so would be to have a collection of short stories or essays, each using photographs (one or more) as a dominant part of the exposition. A photo, perhaps, might bring back memories of past events or be the launching pad of a mystery. Or, more in the character of Dare Wright’s books, stories or reflections might be inspired by the photograph, or a series of them would tell a story. This is obviously not a revolutionary idea – many of us have volumes of photographs that bring back memories, some with little blurbs labeling them for us. Nonetheless, it can be taken to the next level with more description and detail supplied.

A final word. When the author first attempted to find a copy of The Lonely Doll in the 1990s, before its recent reprinting, she had some trouble doing so. A check of Amazon will tell you that it would be a lot easier to do so now, a hard cover copy not too hard or expensive to come by, even of those in the series that were not reprinted. Also, the person that first helped Jean Nathan learn about her subject was involved creating a new Edith adventure. I wonder if her fans felt it was truly in the same spirit. After all, new Bugs Bunny cartoons seem a bit off … not quite how I remember the character, though they have certain charms of their own.

[In a related note, of sorts, is a new indie film entitled Off The Map. Starring Sam Elliott, Joan Allen, and a young find named Valentina de Angelis, it concerns a family living a fantasy sort of existence in the middle of nowhere, New Mexico. The father for some reason has suddenly began horribly sad, and the family does not quite know how to deal with the matter.

A young tax official from the IRS, who is fighting inner demons of his own, comes by to acquire about why they have not file a tax return for five years (mainly since their income is now around $5000 … this is c. 1970). He too is snagged into their world, the wonders of which are captured by on location filming. It’s a special film, one of the few worthwhile ones so far this year.]

Friday, March 11, 2005

The Rule Of Law Is So Passé

And Also: To underline that guilt by association is a bad thing, it has been determined that a white supremacist was not behind the murder of a federal judge's husband and wife, though it turned out another loser that came before her was. The man killed himself, depriving (pardon my cynicism) the Justice Department an opportunity to bring forth a capital case. I must say that my humanistic instincts leads me to find this tragic, but only up to a point -- suicide of mixed up murderers has a certain karmic justice. As an aside, I'm somewhat a believer of karma, and am waiting for more opportunities to balance my karmic equilibrium.

Article VI of the U.S. Constitution states that "all treaties made, or which shall be made, under the authority of the United States shall be the supreme law of the land." International customary law is also part of federal law: as the Supreme Court reminded us over 100 years ago, in the Paquete Habana case, "International law is part of our law." And, under the Supremacy Clause of the Constitution, it follows that if the nation is bound to follow international law, that obligation must somehow be communicated to and adhered to by the states.

Slate's Today's Papers feature has a reference to an interesting dance going on now involving an International Court of Justice ruling regarding when foreign citizens say they have been illegally denied the right to see a home-country diplomat when jailed abroad:
According to the NYT and WP, the Bush administration has withdrawn from an international agreement that gives the International Court of Justice jurisdiction over allegations that foreign nationals jailed here have been illegally denied access to diplomats from their home countries. The move came only a week after the Bush administration bowed to just such an ICJ decision by ordering new hearings for 51 Mexicans on death row in Texas, California. (According to an LAT story yesterday, it looks like those hearings will probably happen, despite objections from Texas officials.) "It's encouraging that the president wants to comply with the ICJ judgment" in the Mexicans' case, an international law prof told the WP. "But it's discouraging that it's now saying we're taking our marbles and going home."

Links are provided to some articles on the events. The WP article makes this telling point:
The United States initially backed the measure as a means to protect its citizens abroad. It was also the first country to invoke the protocol before the ICJ, also known as the World Court, successfully suing Iran for the taking of 52 U.S. hostages in Tehran in 1979.

But in recent years, other countries, with the support of U.S. opponents of capital punishment, successfully complained before the World Court that their citizens were sentenced to death by U.S. states without receiving access to diplomats from their home countries.

Legal blogs also have discussed the issues. For instance, as noted by LAT:
Paul Clement, acting U.S. solicitor general, said state courts must "review and reconsider the conviction and sentence" of each Mexican to see whether the failure to warn him of his rights "caused actual prejudice to the defense at trial or at sentencing." If so, "a new trial or a new sentencing would be ordered," Clement said.

To their surprise, defense lawyers and international law experts found themselves cheering a move by Bush. The president has been a critic of international courts and a strong supporter of the death penalty.

"This is an amazing concession," said Mike Charlton, a defense lawyer for several Texas inmates. "The president is saying the Texas courts have to reopen and relitigate these cases."

This struck Texas officials -- and some legal experts -- as a striking application of executive power over state courts. Can they order courts to re-open the cases? Is this a step to far?

Likewise, others affected by the treaty protocol now would not be covered because of the withdrawal. Thus, the President's "concession" was not quite as "amazing" as some might think. The legal experts also wonder, however, if the concession has immediate effect. Check out the sites for discussion.

We are allegedly on the side of the angels, but this just shows how the rules really do not apply to us. The sensitive nature of the death penalty only underlines the point. Nonetheless, the nomination of an anti-UN John Bolton to serve as our new ambassador to the ... UN ... makes the action quite timely indeed. So, again, we have to put this in context ... Just look at the latest news respecting authorizations of "ghost detainees" that violate international law. Or, renditions of prisoners to countries known to practice torture without the safeguards present when the practice began in the Clinton years.

The whole thing is a prime example of the way the Bush Administration does business -- crafty, authoritarian, and ultimately putting the interests of justice somewhat lower than their own interests. It is not that past administrations were truly on the side of the angels. To quote Sally Field in Murphy's Romance, this bunch was never anywhere close.

Thursday, March 10, 2005


Chinese looks at our society's human rights record and questions just how good it really is.

CHICAGO - An appeals court said a man can press a claim for emotional distress after learning a former lover had used his sperm to have a baby. But he can't claim theft, the ruling said, because the sperm were hers to keep. "She asserts that when plaintiff 'delivered' his sperm, it was a gift - an absolute and irrevocable transfer of title to property from a donor to a donee," the decision said. "There was no agreement that the original deposit would be returned upon request."

A good discussion of the contours of this case can be found here, one of the consistently interesting Findlaw daily essays.

Another essay deals with another not so typical situation. A pre-op (female to male) transsexual who was undergoing hormonal therapy married a woman, who had a child by artificial insemination. The spouse declared "himself" as the father in a written agreement. Nonetheless, when the marriage fell apart, the wife challenged the marriage -- it was really between two women, so void. And, thus no father existed. The appellate court agreed, especially because he did not completely undergo sex change surgery.

This secondary sexual characteristics technique of determining legal sex, other biological conditions, gender and social actions be damned, is rather questionable. It is not just shown in cases like this, when transsexuals and other "intersex" individuals are involved. Same sex marriages also raise comparable questions. The male-female split is not the only way to go, even when different genders are coming together. For instance, a "butch" and "femme" lesbian, or two gay males each bringing different traditional gender roles to the relationship.

A more complex understanding of sexual and gender relations would help deal with cases like the one discussed in the essay. It would show the ridiculousness of letting certain arbitrary biological markers allow and disallow what in any other situation society would deem normal or downright weird (the person declared not a man in this case looks and acts masculine, but can now legally marry another man).

The cookie-cutter approach has its problems.

Wednesday, March 09, 2005

Eat Your Peas, Faithfully

I received this book via the Book Sneeze program for free but these views are purely my own.

This is a cute little book, the cover will draw you in and the inspirational words and Bible quotes will keep you reading. It won't take long to read, or you can read a page a day to make it last. This would make a great gift for a good friend who is having a hard time. I in fact gave it to a family member as a present.  I could see a good friend of mine giving this to me as well.   

It is a cute little book with good advice. We all have difficult times and this is a nice reminder that someone is always there and that you are loved. Get this book and give it as a gift to someone you love, include your phone number so they know you are serious about being there for them (this an idea from the authors notes.) We all need reminders that we are loved and cared for, this is a good one. 

Tuesday, March 08, 2005

Bankruptcy Bill

Blogs: What is the role of blogs in today's press? Are they good things? What legal rights should they have?

[The Slate fray expert on economics issues discusses the wrongs of the pending bankrupcy bill here. Mark Kleiman adds another: an inefficient and perhaps unconstitutional altering of contractual obligations. Cloture was voted for today and there now will be thirty hours of debate before what is likely to be a successful vote for the alleged reform bill. The telling thing will be how many amendments will be allowed to temper it some.]

It then rejected an amendment by Senator Richard Durbin, Democrat of Illinois, to curtail what he called the abusive practices of executives at companies like Enron and WorldCom who received millions of dollars in compensation shortly before the companies filed for bankruptcy protection.

-- Pending Bankruptcy Bill

I honestly have not kept track of this bankruptcy legislation too deeply, but it is a telling bit of political theater. Speaking of Sen. Durbin, who I like (not just his politics, but his savvy ... he puts a good face to the party and it's good that he has an important leadership position), I also caught him denouncing another rejected amendment respecting helping out veterans that are suffering bankruptcy by giving them some special treatment.

Just two telling examples hitting home the contrasting political viewpoints on display here. The legislation also is expressed as a some sort of shifting of Chapter 7 bankruptcy (favoring individuals and those without deep pockets) to Chapter 13 (payment plan, reverse). Speaking as a non-expert everyman on the issue of economics, this sounds on its face as another example of the current favoring of those with more money.

This is definitely the case when the issue of bankruptcy is examined a bit deeper. The current legislation is favored by credit companies, the same sorts that keep on sending me credit cards with large limits [and who now are shown to suddenly increase interest rates, even for those still paying their payments], that tempts me like a little devil on my shoulder to spend past my needs. They are not free from sin, so to speak.

Likewise, it is telling to examine why many fall into bankruptcy. One reason is a reflection of our cultural ethos that encourages risk (and constantly failing individual small businesses), including at times by tempting those to make choices that are foolish in the long term (e.g., the overextending by farm owners). But, others are the result of the usual vagaries of life, including sickness.* Of course, a better health system and safety net would often help here, but so it goes. The very least we can remember is that we aren't just talking about deadbeats here.

Finally, I do wonder how seriously at risk the system is without the current proposed 'reforms.' I might trust my betters, aka legislators, but then I reflect upon the whole S.S. thing. And, their penchant not to quite be ... um .. truthful.

Oh, talking about Sen. Durbin, the Cubs won today.


* Interestingly, perhaps the first federal legal challenge to DOMA -- the anti-gay legislation -- dealt with a bankruptcy proceeding involving a woman who married her partner in Canada who late became bankrupt because of health costs. The bankruptcy court rejected jurisdiction over the marriage. Another connection to controversy is an amendment (if passed) that would protect pro-life groups that declare bankruptcy after being stuck with large fines for blocking clinics and harassing patients there etc.

This money stuff is more interesting than it first seems.

Sunday, March 06, 2005

Air America: Hypocrite

Preseason Baseball: Mets whipped Nationals scrubs, minor leaguers looked good. I'll take it. [First loss of the new team.]

The L Word: A free pay movie channel weekend gave me the chance to check out the critically acclaimed (they are dramatically interesting, not just nice on the eyes!) The L Word this weekend. I personally came away agreeing with a TV Guide reviewer that the show appears dramatically superior, but the characters agonize too much. The episode had at least three or four scenes with characters agonizing over some personal relationship matter, highlighting this show is not just about sexy lesbians -- it is clear "chick flick" material.

Actually, I'm not an opponent of such stuff, up to a point, and this episode crossed it. The apparently obligatory cameo of Sandra Bernard was okay. I did find the "Jordan" character refreshing, including her confusion when forced to order from a Starbucky coffee shop (overpriced and nothing special -- Dunkin Donuts also has lousy coffee -- give me black coffee off a truck any day! and why is "regular" coffee presumed to be "with milk?" is this a dairy conspiracy?).

Lizz Winstead: Meanwhile, a bit more on Lizz Winstead leaving Air America under mysterious circumstances. The buzz among those teeming hundreds that actually pay attention to Unfiltered (9-12 P.M., weekdays) is basically distraught over the whole thing, though a few don't like her breed of humor. Personally, I felt she (along with the early morning show duo) had a good chemistry with her more "straight" (not sexually) co-host, and they played off each other rather well.

It is annoying that Katherine is not given more of a chance (or is this by her choice?) to do the same with Al Franken, who clearly does need more of a safety valve from time to time (she is as liberal, but more levelheaded -- Franken is too strident at times). [The station, however, made a good decision by experimenting with hosts switching slots to fill-in for someone out that day.]

Anyway, Unfiltered suddenly (soon after the station had new management and contracts were up for renewal) had no Lizz, and now it clearly is lacking something. This, however, is but one of the problems. The other problem, one addressed by those previously mentioned fans, is that the station handled the whole thing badly. The station, a bit too isolated from listeners to begin with (content heavy, the shows often have very few calls), abruptly broke up a team that developed into a nice unit over the first year without respecting the concerns of the fans.

The week starts out with Lizz being "out," then both are out for the day, and finally it is abruptly announced that she was not coming back. And, Rachel Maddow was clearly not happy about all the developments, briefly referencing various rumors and saying she was not happy about the situation, but that it was not her decision. Blog comments suggest the station released a lame "she's seeking other options" line. Also, It appears to be a contract dispute matter.

This underlines my comment a few days ago that if we want to change the system, which is a major concern of Air America (it does not like the Republicans too much), we have to serve as role models. We have to show by our actions that an alternative way is possible. It is blatantly hypocritical to complain about the dictatorial moves of the Bush Administration with its penchant for autocratic abrupt actions with no openness allowed and then do something like this.

Air America is not supposed to be just another radio station, where a popular host just disappears without a chance to say goodbye [and like the Bush Administration's removal of distasteful details of fact, its website edited to remove any official mention of her] or the loyal listeners at least being given an opportunity to know what is going on. Yes, it is a business, but the whole ethos of Air America is that business should be regulated and act in socially enlightened ways ... and still manage to thrive.

As one Air America blog comment suggested, how can Unfiltered* have a "burying the lede" feature when the station itself buries the true nature of the departure of one of the show's hosts? This is a lousy way for it to approach the station's one year anniversary.


* A "uncompromising program [that] puts politics and culture through the wringer, uncensored and unfiltered." This is not as lame as the suggestion that occasional guest Chuck D is a "co-host" but still.

Saturday, March 05, 2005

More on the Decalogue

Challenging War: Local citizen meetings in Vermont voted in support of resolutions urging the withdrawal of America troops from Iraq and calling the state to investigate the use and abuse of the state national guard. This is a quite valid and valuable use of public debate, and the alleged misuse of national guards (in place for domestic reasons, not to fight foreign wars) should be a concern of state legislatures. See also, Kathy Dobie's Harpers piece on "AWOL in America: When Desertion is the Only Option."

The best way to display the Ten Commandments is to observe them.

-- Gene Morrissey, letter to Editor of NYT

The main briefs and lower court opinions Ten Commandment cases are found (as usual) on Findlaw's Supreme Court information page. The briefs against the displays [Thomas Van Orden (petitioner) and ACLU (respondent)] are well-written. A couple important issues are the fictional place of the Ten Commandments in our legal history (McCreary County) and the true nature of the display in the "easy" case in Texas (Van Orden).

Likewise, there is a clear precedent to striking down a display that is allegedly neutralized a religious display (again, the place in legal history of the commandments and the Declaration of Independence are not really comparable) only after the fact. [There were three versions, the second clearly speaking of "our Christian nation."] The McCreary County case was also used to raise more complex questions, including if "a new test for Establishment Clause purposes should be set forth by this Court when the government displays or recognizes historical expressions of religion," or more broadly, the question if "the Lemon test should be overruled since the test is unworkable and has fostered excessive confusion in Establishment Clause jurisprudence."

The second question is rather broad given the special nature of the case, so the first one appears more likely to be answered. Linda Greenhouse raises the possibility that the case will be largely limited to its facts, which would seem to be something of a waste of time, since the Court had years to select cases to clarify the matter. The altering of the test seems to have be done sub silento, since Justice O'Connor's "endorsement test" is usually addressed whenever Establishment Clause questions are raised. Various liberal justices are willing to use the test as well, at least in display cases, so maybe that will be done here.

The "historical expression of religion" is one aspect of Justice O'Connor's test, such as the discussion in her concurrence in the Pledge Case, which was of particular concern to the litigants in this case. There is a certain bogus nature to this argument because the controversial "displays" tend to be sectarian (as here), not a truly comprehensive look at our religious history. It is ironical that it is left to challengers to show that the displays portray only certain histories, certain religious traditions. Favoring one version over others is the very definition of establishment, even as here where the Ten Commandments is deemed a "non-sectarian" honoring of God's place in our society (accepting for the sake of argument that this is acceptable).

An honest case can be made in various cases public displays sponsored by the government can have some religious content as a "historical expression of religion." For instance, various cities were originally Spanish missions, and the city seal might recognize this fact with a picture of religious buildings and such. Also, maybe a religious institution has some role in local history, such as the place of religious institutions over time in the caring of New York foster children. And, religion played an important place in history through time, and this might be honored by monuments and such. Compare this to the Texas monument, the sole religious symbol among many monuments in front of a court house, submitted by a fraternal order that could easily be honored in a different way.

A final thought. C-SPAN had some coverage of the cases [oral arguments here] on its American and the Courts program. Some of the participants were associated with religious associations, only underlining how claims that the complaints are "anti-religious" is quite debatable.

Friday, March 04, 2005

The Lost Children Of Wilder

President Bush is having another one of his faux town meetings in which the guests are vetted and subjected to an "invited only" policy. This time concerns Social Security, which only underlines the corrupt nature of the policy -- surely this subject deserves a true town meeting system, where those concerned can listen and state their concerns. Of course, when other Republicans more respectful of democracy actually did this, the public showed a distinct uneasiness about the whole idea. Talking about respect for democracy, Christopher Hitchens of all people adds some striking comments on election problems in Ohio last November.

The Lost Children of Wilder: The Epic Struggle To Change Foster Care by Nina Bernstein is a sad tale, but a compelling one. The subtitle is a bit of a misnomer because the core of the book is not really about the epic struggle per se, the lawsuit at the center of the book itself is not comprehensively discussed.* It is more about the story of the lead plaintiff -- Shirley Wilder -- a teenager lost in the New York foster care system as was her son, born when she was fourteen.

The book reads like a novel with a cast of characters that come alive on the page, only more so as we discover their tragic tales. ["Tragic" in the classic sense -- flawed individuals in a flawed system not intending to do harm, but apparently destined to do some anyway.] This includes Judge Justine Wise Polier, a family court judge who spent her career trying to fix the system, dying in her eighties right after the Wilder case was settled (a settlement she strongly opposed as not doing enough for the children), and Marcia Lowry, the fervent children rights lawyer who ultimately wondered just how much good she really did. And, the many foster parents and staff that did the best they could to care for Shirley's son Lamont.

The book ends in the year 2000, but the stories live on. Looking into the matter, I noticed a ruling for rehearing on Lakisha Reynolds [the mother of Lamont's child] v. Giuliani was handed down but a few weeks ago. The case involves illegitimate delay of food stamps and other benefits. And, so the epic struggle continues.


* "State Supported Foster Care: The Interplay Between The Prohibiting of Establishing Religion and the Free Exercise Rights of Parents and Children: Wilder v. Bernstein," Brooklyn Law Review (1990) was cited by the author as the most insightful constitutional discussion of the case. Reading it, I too would recommend it for those interested in that aspect of the subject.