Small Victories Among Big Wrongs

Book Suggestion: Five Quarts: A Personal and Natural History of Blood by Bill Hayes was a quite enjoyable account of just what the title says: mixing history, science, and his personal history (including a touching valentine to his HIV+ partner). The genre mix is quite successful.

The Army is preparing to update its interrogation manual to bar such harsh techniques and to incorporate safeguards to prevent such misconduct at military prison camps, The New York Times reports today [so says The Boston Globe], quoting Army officials. The officials said that such practices as stripping prisoners, keeping them in stressful positions for long periods, and using dogs to intimidate inmates would be prohibited. ....

Meanwhile, the Army has tried or administratively punished about 125 soldiers for abusing detainees in Iraq or Afghanistan since 2002, including seven reservists who appeared in the Abu Ghraib pictures. None of the Abu Ghraib defendants are ranked higher than staff sergeant, even though several asserted that they were acting on superiors' orders.

The result of opposition to the wrongs of our leaders sometimes seems small and of little note, especially since so much still is broken. The year anniversary of the release of the infamous photos has resulted in mixed results. The clear prohibition of certain behaviors is a sign that something good has come out of the efforts of human rights groups and others to underline a basic point -- our nation has a duty to uphold certain standards, even when working with people who we feel wish our demise.*

The sin of hubris, however, remains. I use the term "sin" advisably, a sort of nod to the so-called "people of faith" that our leaders have decided to slavishly appeal to of late (more accurately known as "people of certain faiths that make up the base of the Republican Party"). After all, an updated legal memoranda that cut back on the free reign allegedly given to the executive made sure to add that nothing authorized in the past exactly broke any rules. And, no one from above suffered: as Al Franken rightly noted (with justified disgust), our leaders rather blame the rank and file. Apparently, they were just too heartless to know what was right. [Bullshit, but that seems to be the implication.]

I'd add that something else that is not right is petty ex post facto applications of the rules so that "people of faith" are punished for practicing their religion. The NYT pointed out the stories of a few hard working sorts that were suddenly penalized after 9/11 for wearing certain head garb. Not anything that covers their face or hides their appearance, such as a case a year or two ago involving a woman who did not want to show her face in a driver license photo. Stuff like (especially in NYC) pointlessly antagonizes Muslims.

Or, perhaps, these "people of faith" (yeah, I find the latest rhetoric spoken in their name nauseating because who really is being spoken of are a subclass; faith per se is not respected ... only certain faith ... this is blatantly hypocritically) do not count?

Anyway, another example of the small amount of success that opposition to power sometimes wrought is the decision by House Republicans to do away with the weakening of the House Ethic rules. The changes, like those in the Senate that suddenly found religion in quick judicial nominees once political fortunes were altered, were blatantly opportunistic. "We are in power now, for real, so don't mess with us!" Stepping a bit too far (and having a leader in DeLay with a bit of a "bad odor" to quote one conservative reference), however, forces a certain tempering of the uses of power.

Small victories help keep the fight going. Big continuing wrongs do as well.
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* See, for example, the final chapter of Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism by David Cole. Cole underlines that constitutional rights apply to "persons," that is, human beings. [And, he has Supreme Court case law to back it up.]

This coincides with the rise of "human rights" law, the post-WWII answer to the "natural law" that inspired many of our constitutional provisions. Natural law argues that there are certain rights that we have thanks to our humanity -- they were handed down by the Creator, and the state cannot rightly deprive us of them. Human rights law is a secular sort of natural law, one that amounts to quite the same thing.

[As addressed before, the growth of a human rights stream of thought in "international law" coincided with increased respect in the United States of its contours. The two can mix, if we truly respect the potential already present in our law.]

Nuclear Freeze

So the filibuster is convenient now. There is some virtue in not letting majorities trample impassioned minorities. But not always. I’m not sure if I have a fully worked out general metric for when filibusters are reasonable and when they are abusive. The size and permanence of the change are relevant. The passion of the minority is relevant. I’d say that the nature of the change matters too — things than enhance freedom should be less subject to it — but that’s such a contestable term that I can’t put much weight on it.

There are some complicated issues about how many votes, under the Senate’s rules, really should be required to pass the ‘nuclear option’. These aren’t, however, constitutional issues, and I don’t pretend to be expert in the Senate’s rules of procedure. Ultimately, for me this is a political issue about how much pain the majority wishes to inflict on the minority, and how much the minority can inflict pain back, either by bringing the Senate to a halt, framing the issue as the destruction of a hallowed tradition of free debate, or stomping on the minority when the parties change roles.

-- Michael Froomkin

Discourse.net provides a balanced account of his stance on the current anti-filibuster rhetoric, which is not even supported across the board by Republicans. [Talk on the Sunday shows, which I admit to reading secondhand, suggests some "compromise" is in the air in which Dems will agree to submit some of the blocked nominees to a vote, while holding firm on a few. A win on principle, so to speak, but one that is rather symbolic. As noted by Froomkin, some of the ones already confirmed were poor choices to begin with ... even more would be worse.] He strategically will oppose the move, but is not as gung ho as some on the "anti-majoritarian" value of the practice. Thus, he did not sign a letter offered to law professors on the issue.

The letter is a creative mixture of legal brief and political argument. The statements on the number of nominees confirmed and the heavy-handed means used by the current executive and majority are well played. Likewise, concerns on the extended terms of modern day federal judges as well as the use of filibusters and other means to block nominations when the Republicans controlled the Senate is as telling as use of how Democratic senators represent more people on a per capita basis (to suggest the non-majoritarian purposes of the institution) is devious. The idea that all this "minority rights" talk would not be equally such a matter of concern if the political waters were different is almost possible to pass over.

But, yes, the slanted nature of the argument must be addressed. I'd address it thusly: sure but the principle holds. I felt this way in Nov-Dec 2000 and continue to do so: my anger and distress is not simply a matter of politics, but of principle. Froomkin is right to suggest "filibusters" are not defensible in a vacuum. Nonetheless, few political tools are, so why should this be any different? The desire to throw the baby with the bathwater is what makes the "nuclear option" (a tellingly over the top label that its partisans are starting to beg off upon, however unconvincingly) particularly troublesome. Sometimes, especially in times like these, "strategic filibusters" (to possibly coin a phrase) are legitimate.

The opposition to civil rights legislation is offered as a challenge. I'd hope that the use of federal prosecutions to get around sham state trials during the 1960s is not used as well to suggest the protection against double jeopardy is a disfavored one as well. Constitutional principles have good and bad applications. The fact that Democrats by some accounts "represent" more people in Congress, if we put aside the district method (hindered by gerrymanders ... though ones that help both sides, the special abuses by DeLay et. al. notwithstanding) and two senator rule, is interesting. Still, the U.S. Senate is not necessarily a corrupt concept overall ... even if will be anti-democratic (small 'd'). Nor, is the use of filibusters.

In fact, speeding up the 1964 Civil Rights Bill by five or so years (which is really what the filibuster got the racists ... it is unlikely even a straight majority would have voted for it much earlier) might not have been that good of an idea. A major change of race relations and federal power should not be "forced" down the throats of major section of society without that section having a chance to get attuned to the idea. Time helps to do this. And, though it was not well received in many quarters even in 1964, the delay and chance for the Southern leaders to vent and say their piece, probably helped significantly. Other bad uses of the filibuster could be raised, but it works both ways: strong minority opposition also tempered some bad things too.

A couple other things. (1) On the issue of longer years of service for federal judges. Many nineteenth century justices, to name one group, had quite long terms (there were only two chief justices from 1801-63). Surely, improvements in health are a major reason why the average term of service has increased of late. Also, appointment of younger people by Republican presidents (partly for ideological reasons) extended the trend.

I am not sure if there is a compelling need for term limits, but if they are for a reasonable period (15-20yr is the general trend), it seems to me a thing to consider. It would also be reasonable, given the times, that the Dems insist the new Chief Justice be in his 60s (sort of like the new pope ... a 78 year old would be nice too!). Finally, a good idea might be that a person can serve longer, but not on the same level.

(2) An interesting article suggests that judges provide cover for politicians, and various safeguards in place to protect the former group are in place partly for that reason. They take the blame and abuse on certain sensitive issues that should not be left to the will of the majority, and in the process, the legislature runs smoother.

For instance, like it or hate it, if you take the legalization of abortion off the table (putting aside various important subissues), this allows/forces both parties to be more diverse. Thus, Republicans do not just care about abortion, but also taxes and so forth. In fact, the article suggests the principle should be taken on level higher: if we respected international institutions more, some anti-American stress would be taken off the nation's shoulders. Ronald Dworkin in Freedom's Law also offers a form of this argument, arguing in effect that the courts are in the end democracy promoting.*

Or, rather perhaps, republican (small 'r') promoting. We pledge allegiance to our flag in part for the "republic for which it stands." We are not a straight democracy, but a republic, which tempers rule by the people through various institutions and by placing various limitations on the breadth of their power. The reason is that pure democracy at times threatens liberty and order. This principle should not be taken so far that the people's will is ignored too much, since we have long opposed nobility, an elite, that rules above us. The filibuster as well as the courts is far from this stage, current rhetoric notwithstanding, and respect for both (properly handled) should continue.


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* He adds as well that protection of such things as freedom of speech provides each person an equal rights and respect, which also is quite democratic. Democracy is not just important when legislatures are acting, but across society as well. A person can freely speak of the importance of restraining speech, but when legislatures enact anti-democratic laws, it is not quite as kosher (Happy Passover). Various arguments can be made against these views, and surely have, but there is a basic core of truth in looking at things in this fashion.

The article links up to Prof. Balkin, who in particular cites the example of Roe to note: "By taking certain issues off the table in religious-based controversies, the courts enable political parties to organize around bread-and-butter issues like the economy and national defense. As a result, political parties are able to attract broad constituencies instead of narrow sectarian allegiances."

The Interpreter

And Also: Paul Krugman's recent columns over in the NYT on the health care crisis are on the money. I was talking to a non-politics nerd (you know, unlike myself) about the general issue, and it is simply something the average person cares deeply about.

Sydney Pollack's new film, The Interpreter, annoyed me. It has the makings of a good thriller, including some very good footage of the U.N. (first film with on location footing, apparently), and some good acting. Nonetheless, the film is pretentious. As noted by the Slate review, it is contains too much backstory and overacting by the leads, who all the same are good (that's the shame -- it's good b.s., but b.s. all the same) at what they are asked to do. All the same, it robs the story of much believability and the audience of much desire to care for these characters when they are not truly real people, just oh so tragic character types.

This is the basic problem with the movie, but there are others. The ending is lame, including what is supposed to be a dramatic highlight (and unbelievable to boot). Also, the use of genocide as a plot device is distressing, since it is used so crudely. Likewise, when the chief concern of the movie is two white people (even if one was raised in the African country involved), the deaths of thousands of Africans becomes but a throwaway (including a shot of the dead bodies). Hotel Rwanda did this better and the focus was more appropriate to boot. Finally, as suggested, there was a few plot points that were unbelievable. All of this makes a continuity error especially annoying (disappearing scar, when it is no longer dramatically necessary).

I respected the talent that went into this film, I surely did, but it was sadly wasted.

Back to the real world, Joan Mariner is a Human Rights attorney, and writes about various issues related to her work over at Findlaw. Her latest is on Rumsfeld's responsibility and is worth reading as are others in the series.

Krauthammer on Judge Bashing

And Also: Latest on Sibel Edmonds -- closed hearing. [Thanks Secrecy News, whose writer is cited in the article.]

I don't like Charles Krauthammer. He puts forth a wrongminded viewpoint with a sneer. All the same, it is useful to check him out now and again, since Krauthammer speaks of what is on other people's minds. And, to be fair, has kernels of truth telling that makes you want him to be less of an asshole. He fails you nearly every time all the same.

Case in point is his piece on the bashing of the judiciary, something Prof. Marci Hamilton (with her own biases showing) challenges pretty well here. Krauthammer thinks the over the top judge bashing is extreme, but ends up saying that maybe it will be helpful, since it will temper judicial overreaching! This is known as wanting to have your cake and eating it too. Therefore, his remarks that we should choose better judges, not rail blindly against those already there are useful, but surrounded by dreck that makes them much less so.

The piece has the usual anti-liberal potshots, which in the process again rob the editorial of its validity. First, it defends Bush v. Gore, snidely talking about liberal "whining" concerning its inherent illegitimacy. But, he says, the Supreme Court was the only institution that could have ended the "fiasco" with "the immediacy and legitimacy" that it did. Well, sure, the first part is right. It ended things quickly enough (you know, after delaying judgment to the last minute in a classic bait and switch).

The "legitimacy" part is dubious though. The Constitution set forth various avenues for legitimate ends. Art. II suggests states (including state courts) should have wide discretion. The Twelfth Amendment suggests that Congress should have an important role in disputed electoral vote counts. And, the Fifteenth Amendment suggests somebody, including the courts, in particular should prevent a basic deprivation of voting rights of blacks.

Obligatory potshot at Roe v. Wade with talking point reference [so many people have used it that it is basically a cliché by now] to Justice Ginsburg's criticisms of it. I spoken of this before, but let me just say that it is but a reflection of the era -- overreaching by a government across the board trying to do too much at once.

And, yes, at the end of the day Ginsburg supported some protection (via equal protection*) of the right by the courts. Not that such facts (as well as the connection of Roe to the right to use contraceptives, the number of lower courts that decided the same way, and legal scholarship of the day -- including by retired Justice Clark -- that supported the result) are raised by Roe bashers.

Likewise, he bashes the Massachusetts ruling respecting gay marriage. In fact, he broadly speaks of "abortion, gay rights, and religion in the public square" as "legislative" areas that do not involve any "suffering [of] disenfranchisement" that the courts are inherently meant to protect. The right of one state court out of fifty to decide something that might be over the top is rather clear in my eyes ... if you respect federalism and such.

Not that critics like Krauthammer appears to respect such things. [At times, he seems a principled crank, but he loses himself in the end.] Anyway, what planet is he on? Does he really think that women not able to control their own bodies or gays found to be unfit to even have relationships are not in some core way "disenfranchised?" After all, Brown did not involve voting rights per se.

Anyway, how about the attempts by those mean liberals (the conservatives are not mentioned, conveniently) to enact their political agendas by "judicial fiat" for fifty years? Show me a case where they did so in a way compared to Bush v. Gore. Roe is shoved in their faces. No comparison, especially if the critics deigned to look at its background. Fifty years is a bit far back actually, unless one wants to include Brown. But, liberals used a lot more than the courts during the civil rights movement. [This by the way includes the women's movement ... Roe was not written in a vacuum. I do wonder though. Are Ginsburg’s efforts in the courts during the 1970s legitimate? Or is she only useful for a punchline?]

The Warren Court did push through many criminal procedure reforms, perhaps too quickly, but then again as shown by an old column by CK against suspicionless drunk driving checkpoints, the courts generally are right to safeguard such things. Gay rights? The right to be with a partner without being arrested is not exactly an extreme use of the courts in my book. Again, this small victory was accomplished after years of efforts in other areas. And, besides being exaggerated, the Constitution suggests that religion and state should not mix, and the courts are darn right to uphold the principle.


Perhaps, Krauthammer and others of his ilk needs to couch some basic truths like judicial independence with the usual conservative shibboleths. Everyone plays this game, though not as crudely as he has a tendency to do (again, it's basically his schtick, so you have to forgive him for it). Still, bullshit is bullshit.

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* David Brooks had a recent column in the NYT on how Roe needs to be overturned for the public good. See, the reason why we have so much division and such in politics (especially in the field of judging) is because of Roe. Yeah right. Anyway, as one letter replied, if given a choice between politics and women's rights, I'd choose women. Or, as another letter suggested, let's overrule Roe, and base the right on equal protection of the law. In effect, the Casey decision did just that: it reaffirmed privacy rights, but made repeated references to women's equality.

[In fact, the letters overall made suggested why the column was so shallow ... far too typical of his work product. Meanwhile, Paul Krugman continues to rally on, this time pointing out the ills of our health system. Why cannot they get a conservative Krugman sort that can provide good commentary? Is it a contract issue or something? Like the Mets having to stick with a few subpar players?]

"whose dreams will never be realized"

And also: "We have to be free together."

A further step should be taken. In my dealings with U.S. military officials here, they have shown regret and remorse for the deaths and injuries of civilians. Systematically recording and publicly releasing civilian casualty numbers would assist in helping the victims who survive to piece their lives back together.

A number is important not only to quantify the cost of war, but as a reminder of those whose dreams will never be realized in a free and democratic Iraq.

So said Marla Ruzicka, who "was founder of the Campaign for Innocent Victims in Conflict. In 2003, she organized surveyors across Iraq to document civilian casualties. Before that, she managed a similar project in Afghanistan that helped to secure assistance from the U.S. government for civilian victims." She did so a few weeks before her death; an interview with Unfiltered on Air America can be found here.

And, I agree with her wholeheartedly: about a year or so ago, I noted two underreported things were the failure to find WMDs and the Iraqi death toll. Bad news is not exactly something our government likes to collect, as suggested by the decision to not report statistics showing how the rate of terrorism has been on the increase.

We might recall how Secretary Rice's predecessor had to correct an implication that it went down. Ms Ruzicka's editorial, as sort of voice from the grave, suggests (as is the norm) that the numbers are there if we had the will. As Sen. Leahy noted in his eulogy for her on the Senate floor, it is after all our moral obligation to do so.

Meanwhile, we have to deal with the Senate confirming the likes of Negroponte as intelligence czar 98-2, and make the push for a civilian draft much more likely to be a necessity.* Perhaps, just perhaps, Bolton is gone, even if the President proclaims opposition just to be rank politics. As compared to just rank, I guess.

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* Philip Carter, military guy and Bush opponent, does make a credible case. He offers a "national service" approach that bears some comparison to the constitutional concept of "militia" for the modern era:

Students could choose to fulfill their obligations in any of three ways: in national service programs like AmeriCorps (tutoring disadvantaged children), in homeland security assignments (guarding ports), or in the military. Those who chose the latter could serve as military police officers, truck drivers, or other non-combat specialists requiring only modest levels of training. (It should be noted that the Army currently offers two-year enlistments for all of these jobs, as well as for the infantry.) They would be deployed as needed for peacekeeping or nation-building missions. They would serve for 12-months to two years, with modest follow-on reserve obligations.

Another Int'l Law Smear Job

Sin City: The "graphic novel" effect of this movie is impressive and the performances were excellent, but the stories were a bit thin (we are talking about comic books here). Watching Alex Bleidel (including with a Rory-like cell phone and connection to her mother) play a prostitute was something for a Gilmore Girls fan to see, lol. On that note, warm weather here ... lots of eye action. As to the violence, quite graphic, but so is the source material. I guess the material is worthwhile enough for the violence to be justified, though some people were turned off (again, do they like the novels? if not, sure).

The Supreme Court and Foreign Sources of Law: Two Hundred Years of Practice and the Juvenile Death Penalty Decision by Steven G. Calabresi and Stephanie Dotson Zimdahl discusses the breadth of citation of international law in opinions throughout the history of the Supreme Court. And, it provides an overall useful overview, but has some rather shallow (and slanted analysis). The use of scholarship to flame hysteria is quite troubling.

In a summary, Dred Scott, Reynolds, and Roe are singled out as "most problematic" cases in which this was done from the many more discussed in the 171 page article. Citation of international law in Dred Scott was not really a compelling part of the decisions on both sides, though it could add ammo to either. And, to the degree it was used, it often was done on originalist grounds (clarifying traditional views on the slave questions at hand).

Reynolds was the case that upheld a ban on polygamy with various extraneous rhetoric on marriage in Western civilization tossed in. It has various excessively biased thoughts about Mormons, but it is unclear if a neutral court would have protected the practice of polygamy! Nonetheless, the actual decision is far from "problematic" in both the result as well as the belief/act division respecting free exercise of religion.

In fact, Justice Scalia supports both strands of Reynolds (and cites it and related cases) and would probably be sympathetic with a citation of traditional moral norms as a reason to justify the decision. And, like or hate Roe, the international law citations really was not too important to the result. In fact, none of the three would have been decided differently without them.

The actual discussion of the use of foreign law in these cases do not quite justify the rhetoric used in the piece. For instance: "Both Reynolds and Lawrence involved the hot button social issues of their day and both cases resolved those issues by referring to the beliefs and practices of the peoples of northern and western Europe." Not quite.

This is an overly simplistic reading of complex opinions, the former still cited (supportively) for the belief/action split. Justice Scalia supportively cited it and other related cases. He also repeatedly cites tradition to justify laws, so what is so wrong with citing European experience that parallels our own on this matter? As to Lawrence, see below.

This is blatantly poor analysis, and it is aggravating. One is compelled to wonder about the bias suggested here, even though the authors are "sympathetic" of citation of international law in cases involving the Eighth Amendment. For instance, the citation in Lawrence (striking down law banning homosexual sodomy) was not used to "impose secular European values," but to answer citations on the other side (like Chief Justice Burger in Bowers v. Hardwick*) that it violated norms of Western civilization. The opinion was based on American law and experience. And, a equal application of the "right to privacy," not foreign law, was the ultimate basis of the opinion. The repeated denunciation of Lawrence is therefore based more on hysteria than reason.

And, the same with Simmons (execution of minors): the Court did not "rely upon foreign sources of law." They were thought of some relevance, but not binding.** Let me underline that: not binding, expressly so, and the opinion was decided on other grounds. The hysteria to the contrary should not be encouraged by law professors. And, it is shoddy work to do so. [btw it's Roper v. Simmons, not Simmons v. Roper, ok?]

Finally, if the authors think there are five reasons why the federal courts should "rely" (misleading word) on foreign sources, I'm not sure why it is limited to the Eighth Amendment. Due process also is a developing thing, open-ended, and often based on "vague or ambiguous" reasonableness standards (ditto the Fourth Amendment).

The other criteria are relevant in non-Eighth Amendment cases as well. When particularly American institutions such as federalism are at stake, special care should be supplied. Nonetheless, this is true in many cases of ill advised use of source material. But, then again, why should other sources of knowledge be relevant to us? We are special and do not need any help. Such anti-intellectualism and shallow thinking is rather sad actually.

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* "The sweeping references by Chief Justice Burger to the history of Western civilization and to Judeo-Christian moral and ethical standards did not take account of other authorities pointing in an opposite direction." And the citations overall amount to two paragraphs in the opinion. There was a REASON why the opinion focused on certain countries, and it was NOT promotion of "secular European values."

** "This reality does not become controlling, for the task of interpreting the Eighth Amendment remains our responsibility. Yet at least from the time of the Court's decision in Trop, the Court has referred to the laws of other countries and to international authorities as instructive for its interpretation." Also, "It is proper that we acknowledge" ... "provide respected and significant confirmation for our own conclusions."

As to singling out certain countries, United Kingdom experience [in general actually] is of some particular relevance given the source of our laws, and on this issue "the United States now stands alone."

The New Pope And Other Conservative Issues

One More Thing: I thought a NYT article on how Secretary Rice pressuring Russia to be more "open" was somehow a joke given reality, something Sarah Posner ran with here (using a WP version of the story). The American Prospect link is especially biting.

The new pope is Pope Benedict XVI, a conservative seventy-eight year old that appears to be best seen as a holding action. The NYT account summarized him this way:

In many ways, the cardinals picked John Paul's theological twin but his opposite in presence and personality. Where John Paul II was charismatic and tended to soften his rigid stands with warmth, the new Pope Benedict XVI is a less dynamic man - humble in private, his friends say - who pulls few punches in public about his strong beliefs.

And, many Catholics were upset, including one about the new pope's age:

"I'm not happy because he's too conservative and old and I would like to see a younger and more liberal pope in there," Ms. Cummings told The Associated Press. "I fear the church won't progress and will just become staid. We need a change."

I don't think one can hope for a pope that would support women priests or homosexual marriage, but this appears to be a particularly troubling case because he was known to especially conservative without the charisma that made his predecessor so popular. Some of the comments he has made in the past are especially blunt -- "people of faith" like Tom DeLay and Rick Santorum should be happy. Another situation where we are left with "let's try to ride out the storm ... this too shall pass."

Talking about those liked by conservatives, Andrea Dworkin, the bombastic feminist, has recently died. From what I know of her work, admittedly not enough to be totally fair, this account seems right. She was an unpleasant caricature of a feminist, and that results in a counterproductive tendency generally.

On the other hand, Dahlia Lithwick is right again about the latest development in the convoluted saga of Zacarias Moussaoui. And, true conservatives might agree as well. They might not like the latest developments respecting John Bolton, but those who want a truly competent UN ambassador should.

In the News

It was inevitable that she should accept any inconsistency and cruelty from her deity as all good worshippers do from theirs. All gods who receive homage are cruel. All gods dispense suffering without reason. Otherwise they would not be worshipped. Through indiscriminate suffering men know fear and fear is the most divine emotion. It is the stones for altars and the beginning of wisdom. Half gods are worshipped in wine and flowers. Real gods require blood.

-- Zora Neale Hurston, Their Eyes Were Watching God

Forgotten Dish: A matter of some concern in my area is the inability of Time-Warner subscribers to watch Mets games because of an ongoing contract dispute. This results in some back and forth, including some annoying commercials wherein apparently typical fans complain about not being able to see them because of one's sides intransigence. My personal view is that I want equal time! An article noted that a competitor is trying to use the dispute to rack up business; in passing, it noted said provider did not offer YES (Yankees) Network.

This fact, even though thousands or even hundred of thousands, use this dish provider, is rarely mentioned in local coverage. Am I chopped liver? For the last two years or so, I cannot watch most Yankee games (Bronx boy, if one who favors the Mets these days) at home, since my provider (or rather, my landlord's) does not air the Yankee network. Nonetheless, one might not know it from all the coverage a year or so ago when Cablevision did not air the games for some time because of a contract dispute.

It does now, so I can see them various places, but Dish Network does not. So, I am provided with a retro experience of listening to games on the radio. In fact, when CBS was blocked for a few days (and various other stations related to it), my local paper only mentioned it briefly on the business page! Sheesh.

Marla Ruzicka RIP: To focus on a matter of more importance, and that was addressed nicely in a Daily News (page three) story with fine photos (it helps that she was very pretty) and personal quotes, the death of Marla Ruzicka is one of those "life is not fair" moments. A strong opponent of the war, twenty-something Ruzicka went over to Iraq on a human rights campaign, including directly challenging the likes of Rumsfeld and Gen. Tommy Franks. Earlier, her friend Margaret Hansen (CARE), was kidnapped and beheaded.

And, such deaths are useful for the resistance, since horrible deaths of innocents adds to the drive to get everyone out. It might backfire too, especially when the person killed is not only a care worker, but someone labeled as "vehemently opposed U.S. military action in Afghanistan and Iraq" is involved. No matter: "It was a short life, but a life really well lived."

[A guest editorial, by Halley Bondy (a student*) -- concerning claims of bias against Rashid Khalidi, a Middle East expert and professor -- is also well worth reading. I do not know enough about the story, but it is an eloquent defense of academic freedom and respect for true scholarship.]

NRA: One last thing news related. I caught a bit of a NRA event over the weekend on C-SPAN. The incoming leader mentioned how "their" people won in November as if the Democratic presidential hopefuls were not clear supporters of Second Amendment rights. Also, Rep. DeLay came on to rile up the troops and try to divert attention from his recent troubles.

I doubt if he apologized to Michael Schiavo, though others damn well should. [Kudos to Mark Kleiman. As to estate taxes, see here.]

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* A sports writer has the same last name.

Yeah, These Guys Are Our Leaders

Baseball: Oh well. After five straight losses, the Mets now can't lose, and have a six game winning streak. Aaron Heilman ... yes him ... one hit the Marlins. Pedro Martinez (1-0, easily could be 3-0) throws three wild pitches, two in one inning, and Looper blows another save, but again Victor Diaz (with an assist tonight from Ramon Castro) is in the midst of late inning scoring excitement (twice). As to his two runs (directly arising from those wild pitches), Pedro doesn't blame Mike Piazza: "Michael did a great job," Martinez said. "I'm not the easiest pitcher to catch." Michael? Meanwhile, the Yanks are 4-7. Strange beginning.

In a private letter to Frist, NEWSWEEK has learned, 31 of the 165 members of his medical-school class accused him of using his medical degree improperly. Frist's office declined to comment; according to public records, at least 13 of the 31 had donated money to Democrats in the last five years. Still, Dr. Lewis Rose, an oncologist who said he voted for Bush last year, insisted Frist had overstepped. "He had no right to use the cloak of the Hippocratic oath, no matter who was right," Rose told NEWSWEEK. "He's got medical training and a medical perspective, but he is not a practicing physician and has no business using that in politics. Period. If he does, he won't get any of his classmates' votes who signed this."

If you jump around the blogsphere, the amount of gotcha moments against the leadership of the Senate and House are great indeed. Tom DeLay, never a guy with a great reputation, has at least a twofer: disreputable lobbyist friend and hyperbolic comments against judicial review (that damn radical Alexander Hamilton and his Federalist No. 78!). I find the latter more distasteful personally, since it has a more destructive effect on the public at large, though the former does lead to some nasty legislative moves.

And, the blatant hypocrisy and pathetic defenses really rankle. Rep. DeLay, for instance, is criticized for some lobbyist paid trips to his family, and a major defense is that "they do it too." Mom didn't buy this excuse when we are kids, and I don't know why we now should either. Anyway, first, people paid him more money (obviously, giving his pull). And, two, as the leader of the party, he should be put to a higher standard. Sen. Frist deserves to be put to the same test ... and his use of Terri Schiavo and certain religious groups (as well as the usual anti-Democratic hysterics respecting judges) is rather distasteful as well. Yes, certain religious groups. Though some might think so, they do not have the monopoly on determining what God wants.

I know it's tiring after awhile ... I personally am tired of hearing about DeLay on Air America* ... but the core truth holds: two thirds of our federal government is headed by people that make me sick just too often for comfort. We can ignore for just so long that the institution that is supposed to represent the interests of the people at large is headed by a creepy crooked crud (though when challenged on an ethics panel issue, he looked rather weak on C-SPAN defending the official line). And, the institution representing the states is led by a doctor who puts forth misleading medical statements as well as using divisive religious statements for political ends (but, hey, I'm not a Republican ... can't trust me). The guy who represents the nation as a whole?

Well, though he serves as a cheap laugh line for David Letterman, not much of an improvement, let's say. If this is the best we can do, we are in deep trouble.

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* I'll repeat myself: why in the hell did they bring Jerry Springer in? I know Unfiltered was only a pretty good show with nice chemistry and some sense of proportion that is not quite shown on the evening shows with their tendency toward demagoguery. But still ... don't they know the guy is just a prime target for jokes and taints the network as a whole? Do liberals really need to put such an easy target on their backs?

Where Your Dollar Goes

And Also: Some (Joe) thoughts respecting citation of international law in American courts, the Bible so far cannot be sued for libel in federal court in New York, and non-monotheists need not apply. So says the Fourth Circuit.

Of the $1.00 you paid in taxes:

$0.30 goes to the military
$0.19 goes to pay the interest on the debt
$0.20 goes to health care
$0.07 goes to income security
$0.04 goes to education
$0.03 goes to benefits for veterans
$0.03 goes to nutrition spending
$0.02 goes to housing
$0.02 goes to environmental protection
$0.01 goes to job training
$0.11 goes to all other expenses

Time For Some Court Bashing!

Here We Go Again: The apparent successful nomination of another patently unfit person to represent our nation's interests (John "bully boy" Bolton... Dubya must just LOVE this guy) suggests the state of our leadership these days.

Justices Kennedy and Thomas testified in front of Congress, another one of the periodic appearances to discuss Supreme Court related issues. These hearings tend to be for mundane matters such as relatively small financial matters and so forth, but it gives members of Congress a chance to raise various basically non-germane issues, including the number of minority law clerks. This time around the criticisms of the Court's decisions were referenced, leading one justice to note that one reason why federal judges have life tenure is to handle such things. True enough ... the Framers expected the courts would be targeted, and placed certain safeguards in the Constitution to deal with the matter.

[NB a citation in a letter to the editor: As Justice Anthony M. Kennedy has said: "The law makes a promise - neutrality. If the promise gets broken, the law as we know it ceases to exist. All that's left is the dictate of a tyrant, or perhaps a mob."]

Not that we have little to fear from the anti-court rhetoric, Justice Kennedy being a prime target since he wrote the opinion striking down the execution of minors, one that made some (non-binding) reference to international law. He also is deemed a turncoat to the conservatives given his votes in support of abortion and gay rights. The critics have an important assist from House Majority Leader Tom DeLay, speaking about how various judges will "pay" for decisions certain individuals do not like. Not too surprisingly, these sorts rail against court activism quite selectively, not liking it when the courts show restraint (e.g. Terri Schiavo) only when the results are not to their liking.

We have an independent judiciary (and a judiciary overall, including those state judges that are elected) because of the importance of the rule of law, especially the securing of certain basic rights and principles that are deemed fundamental. But, top people in power -- including the leaders of two branches of the federal government -- appear not to be too happy with the principle. And, their supporters basically make it up as they go along.

Alexander Hamilton apparently said the courts should be the least dangerous branch -- not that they are the least dangerous branch. Republicans did not "filibuster" judicial nominees in the past, when they actually did. The current nominees are not in any fashion extreme, when they are. Various (named) liberal and moderate law professors said that the filibuster is unconstitutional, when they did not (as shown by looking at the selectively quoted materials or when asked directly). Removing Terri Schiavo's feeding tube clearly does not respect "life," when the matter is open to much (religiously laden) debate. And, selectively supporting religious doctrine and symbols is something the government should do, when the First Amendment (and basic fairness) warrants otherwise.

Not that the usual suspects are the only problem. Burt Neuborne, former national director of the ACLU, wrote a patently misleading Nation piece on how progressives should not be so much in love with the courts. The overall principle is sound: court action must be carefully balanced with other social and political movements. And, this has been done in each field, including abortion, race, and so forth, though sometimes not well enough.

But, then, he went into just plain wrong mode. And, the fact that Neuborne used the same old tired lines used by other side only makes it more aggravating. To wit:

The battle over abortion rights has never developed an effective movement designed to explain why abortion is fundamentally fair. The high moral ground was ceded to opponents who stressed its moral complexity. The progressive response was an abstract defense of individual autonomy that winds up sounding hedonistic, together with hairsplitting distinctions about when human life begins.

First, weird wording. "Abortion" is not "fundamentally fair" -- if anything, the "right to choose" is. Second, the "opponents" often focus on simple "right to life" rhetoric that is far from complex. Third, progressives have pointed out the moral complexity -- it's a core reason why the choice should not be up to the state. Finally, not only do progressives also talk about equality and other issues, but overall the public agrees! A majority supports legalized abortion.*

Without such a campaign, opponents have been permitted an open shot to argue the unfairness of imposing unwanted changes on a historic, religion-based institution.

This covers gay rights. First, he implies that the part of the gay rights community that have "immediately redoubled" their efforts to push for gay marriage in the courts speaks for the whole. Second, it is unclear if Neuborne is saying that the "opponents" are arguing that marriage is a "religion-based" institution or that it actually is. If the latter, this is false, unless city clerk offices also have traditionally been chapels. And to the degree it does promote a certain religious view of marriage, it is an establishment of religion. Fine way to add fuel to the fire.

Finally, defenders of the wall between church and state have relentlessly pressed to remove religious imagery from the public square without seeking to persuade the public that it's fundamentally fair to do so.

First, I hope the guy knows that the "equal right to have the symbol of his or her choice" is really not present in practice. Second, and this pisses me off, it is patently false that these defenders (darn them for being so "relentless") are not trying to persuade the public that it is fair to challenge selective sponsorship. Equally wrong is the fact they are pressing to remove them from the public square totally. An obscure few are, but opposing Ten Commandment monuments is not quite the same as total removal.

Neuborne is yet another person unfairly maligning progressives, basically punishing the victim, for allegedly ignoring the values of their fellow Americans. Adding fuel to the fire of DeLay et. al. is not exactly what a "Professor of Law and Legal Director of the Brennan Center" should be doing. And, the comments about the religious symbols in particular really dishonors Justice Brennan's memory.

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* This after all is a core reason some, and Neuborne implies that he might be among them, believes Roe can be overruled -- the public would still protect the underlining right. In fact, it would be likely that various weak and powerless groups (especially in certain regions) would be deprived the right to choose in troubling ways, but that's another issue.

As to the use of Justice Ginsburg's opposition, nice tired tactic. Two things. One, she still supports it on equal protection grounds. Two, her main point was that the movement should have been more deliberate. Sound advice, though the courts in the 1970s opposed de facto discrimination claims even on ground of race [a claim respecting pregnancy leave was rejected by the Supremes, leading to state and national legislation].

Also, the speed was as much a result of Supreme Court dynamics as progressive activism. Roe could have been decided on quite narrow grounds; it is not really the fault of Sarah Weddington and company that it was not. Supporting an after the fact rolling back would have been rather bad strategy with troubling implications in other areas.

Winter in Spring

Query: Upon looking at a review of the below movie, I notice that it is rated 'R' for language (hard pressed to know where the "magic" words appeared). This is patently ridiculous, and the chance that someone under seventeen would not be able to see this eminently family friendly film is absurd. I ask again: what are these people thinking?

Movie: After a drought, I have had a chance to watch some superior films, the latest being Winter Solstice, an indie about a month in the life of a father (Anthony LaPaglia) and his two sons. The mom died five years before in an accident, and the three quietly are going about their business with various interior dramas showing themselves in different ways.

The movie itself is a quiet, sensitive affair, not much in plot, but rings true throughout. All the actors, including supporting cast such as Allison Janney (West Wing, showing how sexy casual can be) and Ron Livingston (in a quirky role that reminds one of a quite different character in Office Space), shine. One goes to the movies for various reasons, and one of them is simply to watch wonderful stories play out on the screen.

[btw wasting some time, I happened to see that the new version of the Oxford Guide to the Supreme Court (last one in 1992) is finally out. Cheers.]

Baseball: Talking about droughts, the Mets won two in a row. I am simply not the Fever Pitch sort of fan, willing to bear all the ups and downs, every minute of the game, but this team has just has had something that was equal parts likeable and aggravating for about the same period of time the Yanks dominated (the Yanks are struggling some in their Yank way). The team, even with the higher payroll, had a blue collar feel, with various stars and role player parts that you root for. And, they always were missing that one (or more) piece, allowing them to kill you time and time again.

These two games (2-5) seems to foreshadow the season. Pedro Martinez v. John Smoltz on Sunday, their first win, is an example of the baseball gods having a heart. It looked like the Mets was due to lose 1-0, another one bad break damning the team (even Aaron Heilman pitched fairly well other than, ahem, the grand slam). But, the Mets hit a homer and then the floodgates emptied. One wonders why they did not do that a bit earlier.

Anyway, today ex-Braves Tom Glavine put a bad opener away as well, and pitched well (this time getting some close calls, most importantly a bases loaded 3-2) ... and had a no-decision because the bullpen could not hold a 3-1 lead. The Mets bats, as they will have to consistently, picked up the bullpen. And, Looper did his job. Still, some games will go the other way. But, the players will keep on drawing the fans back, including with such plays such as the gem of a bunt by Matsui for a base hit that led to a run (because slow footed Victor Diaz stole third).

And, heck, I do not need those fingernails chewed on while the bullpen pitches or the starters have little margin of error, even when they have a few runs to spare.

Others Join In aka Some More Mets Whining

Legal Musings: I found something to say about some legal issues, including Patriot Act re-newal testimony, national id cards, and the use of expert witnesses at trials (per a Tuesday Slate piece). The threads are worthwhile reading, offering other points of view. Also, respecting the "nuclear option," I link some further reading here.

[Note: Blogger down yesterday, so this post is a bit stale. Also, I link up the various fray posts to catch-up, instead of posting the text here. One last thing ... West Wing was pretty good this year, but why is it ending early April? Sheesh. I do like Santos ... designated loser.]

Update: The Mets finally won Sunday, after two more games of more of the same (lack of timely hits, some messiness, and inconsistent pitching mixed with some promising hurling). Pedro pitched a complete game, gave up one run, and John Smoltz's own gem was broken up in the eighth and the hitting floodgates opened. Finally. Meanwhile, Baltimore gave the Yanks a lot of problems as the Red Sox opener approaches.

To add to the below whining, there was some more Mets fun this week. Now, yes, equal time warrants references to two blown saves (one leading to a loss with help of an A-Rod error) by Mariano "not the Red Sox again" Rivera. And, various pitchers (especially those in the bullpen) have had problems this week, including John "I had longer outings as a closer" Smoltz, who could not get out of the second inning.

Nonetheless, Willie Randolph did not have a good first series as a manager. And, fans had more reasons to bite their fingers ... oh for one or two more breaks. For instance, everyone but the umpire (admittedly the only person who counts) apparently felt that two key pitches by Tom Glavine were third strikes. Neither were called, and the next pitches resulted in a total five runs.

Glavine had to leave in the fourth, but the Mets bullpen held the Reds scoreless until the eighth. With good comes bad: (1) the Mets blew a no one out bases loaded opportunity by getting but one run [questionable base running helped] and (2) a reliever finally blew it in the eighth by giving up a grand slam (Joe Randa, no powerhouse, thus contributed to two losses). On the other hand, the runs negated any problems arising from Willie not properly making a double switch earlier in the inning.

A bit more whine with that meal: Ishii also had a pretty good game. Early problems were overcome, apparently his typical behavior, and he had a "quality" start for 6.2 innings (three runs, not all his fault). The bullpen stretched the day before and likely needed on Saturday for long action, Ishii was left in ... two runs. Reliever comes in (the same who gave up that grand slam) ... another run. This is the path of scoring over ten runs in a three game series, eleven in the first two combined, and being swept.

Not to worry, this weekend will be easier: The Braves.

The True Wayback Machine: The Movies

specks of light struck to a strip of celluloid ... a series of moments frozen in time by the only time machine ever invented

-- David O. Selznick, producer of Gone With The Wind, in Moonlight and Magnolias

I admit it -- except for a few minutes, I never watched Gone With The Wind, but like ace screenwriter Ben Hecht noted, it is about a woman with no morals that owns slaves, smacks a young child, and "plugs" a Union soldier. Well, I do not know if he actually said that, but that was the description noted in Moonlight and Magnolias, an enjoyable play running in Manhattan Theatre* that provides a behind the scenes look at the furious re-write of the screenplay with the help of new director Victor Fleming (played by David Rasche, who in another life played the goofball police officer Sledgehammer).

Furious indeed, since Selznick (having a five day commitment from Hecht) trapping them in his office, while Selznick and Fleming acted out scenes from the book ... which Hecht admitted not reading. Meanwhile, Selznick's loyal secretary (Miss Poppenguhl, suggesting the farce slant of the story, though it has many serious themes) was on guard outside, and only providing bananas and peanuts as subsistence.

It was striking, if fitting, that screen tests from the movie were played before showtime. In a day and age where commercials are invading movie theaters (luckily not in the middle of the films ... yet), it seems a bit off to have any film shown at a play! It also was used to set the scenes at the beginning ... "Three Days Later," etc. The screen tests were interesting though. As a fan of Jean Arthur (You Can't Take It With You, Mr. Smith Goes To Washington, Talk of The Town, etc.), the idea that she was tested for the movie is rather amusing -- Arthur usually played a fast talking sort with some small town Midwestern flavor (sort of a big city girl with an Iowan sensibility deep down, waiting to be found by true believers like Mr. Smith). She is just not what I think of a Southern lady.

Selznick was the ultimate star of the four-person play, equal parts maniac, desperate, and eloquent. He defended the movie against Hecht's complaints (both were Jews, Hecht's newspaper muckraking background influencing his concerns) by reminding him just how much the public loved the book. And, why Selznick himself was drawn to risk spending so much time and effort on the material -- the central character just drew you in, so much that you forgive her for her flaws.

And, this struck me too, since I'm not really too gung ho about a movie that (let's be honest) glorified something that left a lot to be desired (the same thing comes to mind with mafia movies, and darn if a high school classmate that I sometimes differed with liked them both). Not saying I will now watch the thing, but the play did help me respect it somewhat more.

Mike Royko of the Los Angeles Times wrote, "Mary Pickford, the one-time screen darling of America, has managed to offend people. She did it by growing old."

Talking about old time film, PBS had an interesting documentary the other day about Mary Pickford, the (mostly) silent film screen star. She led an interesting life, starting with her start as a child silent screen actress back at the first decade (or so) of cinema. The amazing thing about Mary Pickford was not only her skill and fame, but also her business sense. For instance, along with the likes of Charlie Chaplin and Doug Fairbanks (her lover and later husband), she founded United Artists (fitting name) ... the doc explained how she was an excellent businesswoman and was quite a hard bargainer.

The end of silent film along with various personal traumas led to her downfall as perhaps did her getting older (thirty-five or so), which was not quite what her audience wanted to accept (her telltale curls and ability to play girlish parts was her bread and butter). Though she received an Oscar for her first talkie (deemed even then as a questionable piece of cinema), in the mid-1970s, Pickford was given an honorary Academy Award for lifetime achievement.

In a dubious act, cameras came to her home (where she lived in seclusion for years) because she was too fragile to accept it in person. Quite made up and clearly fragile, her appearance upset many people, including those who retained an idealized view of the one time screen legend. PBS included the above quotation in its resource page on the documentary, one that I recall reading a long time ago. The amusing thing about it is that Mike Royko -- associated quite closely to Chicago (sort of its patron saint) -- is labeled "of the Los Angeles Times." [No, it's not some other Mike Royko.]

The quote also reminds me of a favorite passage that Justice Brennan often cited, down to perhaps his final public appearance when he was too frail to completely cite the reference. As Nat Hentoff tells it:

Then William Brennan quoted from a scene in Yeats's play "Cathleen ni Houlihan": " 'Did you see an old woman going down the path?' asks Bridget. 'I did not,' replies Patrick, who came into the house just after the old woman left it. 'But I saw a young girl and she had the walk of a queen.' "

Through the power of that time machine we heard about, Mary Pickford is also still a young girl, the queen of motion pictures.

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* Not too surprisingly, a theater in mid-town Manhattan. Around the corner, is a good bakery, in which you might purchase overpriced tasty pastries and such.

Hi Pedro, Welcome To NY!

New year. Same shit. The Mets had two dependable starters ... they both went on the disable list before the year started, one (their most dependable) for the long term. Their bullpen is still questionable. And, even when it looks differently, there is no margin of error. First game of the season -- Pedro Martinez gives up a first inning three run homer. He basically strikes out people for the rest of his outing (six innings, bound to be fairly average).

The Mets tie it 3-3 and then (in time to give him a decision) hurt the Reds' relief corps to make it 6-3 in the seventh. The Mets relief corps manage to bridge the gap to the ninth and Looper, the "reliable" one, and give up but one run. Looper blows his first save. And, the game: 7-6. The Yanks, meanwhile, hit David Wells and his Red Sox company* nicely last night, and won handily. After all, it was not until when it was time to close out the playoffs (including the World Series) when the team has blown it ever since winning it all in 2000.

The Mets, however, will have fans biting their fingernails every freakening game. Why not? If the Mets fan cannot trust a two run lead and six runs once the ninth comes along, surely many a game will be even closer, when can they breathe comfortably? And, surely, the Mets bullpen will implode now and again, as will their "walk machine" backend rotation arms. The bats and defense are clearly better, but the ill timed double play grounders hit by David Wright suggests they too will have bad days.

An ill wind blows ... and it is but April 4.

[The dynamics might be different, but the Cubs fan -- with Mark Pryor and their closer starting the season on the DL -- might feel just a twinge of sympathy. That is, if the Cubs fan doesn't recall how the Mets helped put the nail in their season last September.]

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* Fever Pitch, a remake of a British film concerning British soccer, concerns a die hard Red Sox fan. A well timed movie, though the Drew Barrymore and lesser SNL star duo leads one to wonder how good it will be.

Democrats Can Walk And Chew Gum

The problem is not a lack of structure, or even a lack of ideas. The problem is a lack of coherence to the ideas. The Democratic party's base right now is an assembly of anti-capitalists (who have to mute their opinions, because America embraces capitalism heartily) and a broad spectrum of single issue interests (abortion rights, gun control, antiwar activists, etc.). At different times, different parts of this structure need to be stroked. And at other times, Presidential hopefuls will be able to assemble different factions of this collective into a sufficient mass to win the nomination. However, no common ideologic thread exists.

An alternate view linked up by Althouse, after she commented on a recent editorial by Bill "yawn" Bradley. Another view argued that the Democrats are made up of people who don't take leadership very well, including law professors like Althouse, who herself comments:

Is it a mystery that academics tend to vote for the Democratic candidate, despite this lack of coherent ideas? Academics are - I'm thinking - a lot less interested in elaborately structured ideologies than nonacademics imagine. Perhaps intellectuals are more comfortable with freewheeling, pragmatic politics than the average citizen. But Bradley is still right: the Democrats should develop a coherent ideology in order to speak persuasively to that average citizen, who longs for ideas that make sense. And plenty of academics would freewheelingly and pragmatically enjoy raking in lots of money while they produce the necessary structure of ideas.

Whatever. My basic thought is that aside from Clinton, the Democrats sent up boring losers as presidential nominees, including one that still managed to beat the current occupant (but not enough). And, yes, a simple message is useful. It also should not be TOO difficult to establish. Of course, some might be a bit hard pressed to supply simplistic question begging slogans like the "culture of life," as if everyone's definition of "life" is comparable, and no hard questions exist. OTOH, we have the likes of Kevin Drum, who is willing to accept some national domestic law regime, and does not quite see what is wrong with the idea.

Anyway, as to the opening argument, the same can be said about the Republicans. They too have different strands of thought, different competiting issues, and so forth. Yes, they can unite on some level, but so can the Democrats ... when they have a good leader and so forth. Furthermore, the Democrats are not without certain basic themes, including equality, internationalism, and some basic safety net. And, no, their base is not just "anti-capitalist." For instance, blacks and various other groups are clearly Democrat. And, anti-capitalism is not really the compelling force that drives such interest groups. Analysis tends to be so full of crap sometimes.

Or, at the very least quite debatable. The judge* that declared the Terri Schiavo legislation unconstitutional, for instance, defined "activism" thusly:

Generally, the definition of an "activist judge" is one who decides the outcome of a controversy before him according to personal conviction, even one sincerely held, as opposed to the dictates of the law as constrained by legal precedent and, ultimately, our Constitution.

No, not really. It's like when I recently argued that the Dred Scott Case was "activist." Someone noted that it was defensible given the laws of the era. Not really, but again, this is not the necessary component of "activism." The word is akin to the word "liberal" in that its abused so much that it is deemed an epithet. In fact, the word can basically mean a strong use of constitutional power that might very well be compelled by the instrument. For instance, the Warren Court was "activist" to uphold the right to a lawyer, if necessary, paid for by the state.

Talking about basic ideals that the Democrats follow, an issue being discussed in the blogsphere these days is the move by some pharmacists to refuse to prescribe birth control. This is deemed a matter of conscience, which is akin to saying a pacifist can pick and choose who to shoot while on duty. As one person notes:

Pharmacists who won't do their jobs don't deserve special protection. As healthcare professionals, they are responsible for doing what is medically best for each patient--and since staying non-pregnant is medically safer than being pregnant or getting an abortion, a pharmacist has no right to disregard a pregnancy-preventing prescription.

Ah, but what about the "culture of life?" Hmm ... that might very well include protecting the health of women who decides to take morning after pills instead of putting herself in risk of a health threatening pregnancy. Or, one that will bring in a life to this world that cannot be properly cared for. Because Democrats are concerned about patient health, women's rights, and the care of children. No single issue anti-capitalism dominated bunch they.

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* A life-long Republican and appointed by the President's dad, he recently penned an opinion upholding an across the board ban on gay adoptions, but still showed a concern for basic constitutional commands. But, as I told someone recently, it is questionable just how "conservative" the current bunch in power truly are.

Foolish? Maybe. Definitely Depressing

And Also: While perusing a nice down to earth legal/current affairs blog, I passed upon the news of the death of Fred Korematsu, famous for his role in the Japanese Internment Cases. By chance, I also saw Peter Irons on some educational channel giving a talk about school segregation. Irons, who also was involved in the May It Please The Court project (an early effort to bring Supreme Court oral arguments to the public at large), was important in re-opening the cases, and managing to get a court to hold the original trial ruling in error because of the flawed facts used to defend it. Korematsu also submitted a brief in the enemy combatant cases, showing his continual importance.

Today we will be able to say that the news from the Bush Administration is good, and we can be glad that we have such great leadership from above. April Fools!

The contrast with the Sept. 11 commission is sharp. That commission, truly independent because it was created by legislation, had public hearings, issued subpoenas, quizzed Bush and Cheney, and released a report that led to sweeping legislation. ...

The Silberman-Robb commission made little public effort to show its independence -- evidenced yesterday by the decision to release the report in the White House complex. White House aides sat in the front row; at one point, during Robb and Silberman's presentation, national security adviser Stephen J. Hadley and homeland security adviser Frances Townsend could be seen sharing a laugh.

Bush was visibly delighted as he celebrated the commission for its "unvarnished look." ...

The president ignored a question as he left the room, but Silberman and Robb proved able surrogates. Asked whether there was political pressure on the CIA, Robb was categorical in denial. "We found absolutely no instance," he said.

-- Dana Milbank

Ah, whitewashing. The "authorized" investigation into intelligence missteps before the war did not have the jurisdiction to deal with the political handling of said intel. But, and this helps explain why George was so cheery, they had it both ways. Not only did they had to deal with the reasons why Rummy et. al. needed a special plans bunch to stovepipe and put pressure on the CIA if said agency already was quite gung ho over mistaken intel, the heads of the commission could go in front of the cameras and pretend they actually did.

The Administration should be quite copacetic with the Orwellian wordplay of saying "we found absolutely no instance" of facts that they did not even look for. As noted by the NYT, the resulting report is probably one of the biggest wastes of paper (what about the administration's cute sounding forest friendly policy?) of this year, while providing nice CYA material because it did say the intel was wrong. See? We here in the White House can admit reality, especially news that everyone (except perhaps some that voted for us) knew for quite some time!

Meanwhile, the U.S. abstained in the UN vote that authorized allowing Darfur war crimes cases to go to the Hague. This is quite big of us -- the alternative would have been the need to form an ad hoc court, and thus delaying investigations even longer. OTOH, actually voting for it -- even here -- might be deemed hypocritical since we fear the International Criminal Court.

Why so? Perhaps, because of fears that the world might not think we are investigating things of this nature enough:

During the dinner and in follow-up interviews, Rear Adm. John Hutson, who is now president of the Franklin Pierce Law Center in Concord, N.H., and Brig. Gen. James Cullen, a lawyer in private practice in New York, said they believed that both the war effort and the military itself have been seriously undermined by official policies that encouraged the abuse of prisoners.

There might be some good news though. Talk is in the air that the Mets will dispose of sports radio laughingstock Felix Heredia, even though he has a 1.8 million contract. This reaffirms my basic feeling of injustice -- I too cannot get major league ball players out. Nonetheless, I am quite willing to get paid a tenth of that to be let go after proving how lousy my pitching ability truly is. Then, again, my first name does not mean "cat."