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

Monday, February 28, 2005

77th Academy Awards

First off, The Passion -- as expected -- was robbed. Didn't even win Make-up (Lemony Snicket won; please!). Such a shame.

[Addendum: The opening look at why movies are so great was a waste of time: they should have went directly to Chris Rock's monologue. The best part of said monologue was comparing President Bush's actions to a guy working at the Gap: easy target, but it hit home.]

Overall, the show was fairly boring and had few surprises. I only watched the first two hours, so maybe something special happened toward the end (it did not go overlong, since it was over before midnight). Doubt it, really. Chris Rock was okay, nothing more, as host -- his monologue was a bit forced. As usual, a few of the obscure awards supplied the best copy. One guy honored his sick mom. Another winner supplied a refreshingly quick comment or two. A third (one of the many Aviator technicals) had won for Raging Bull twenty-five years before, and had a few touching remarks honoring the director and so forth.

Million Dollar Baby dominated the non-technicals (except for Supporting Actress, Cate Blanchett obviously winning), surely annoying some of the film's distractors or those that favored others like Sideways and Eternal Sunshine of the Spotless Mind, the latter one of those many felt should have been nominated for Best Film. Those last two won for screenplay with the Sideways bunch graciously honoring the cast. As expected, Jamie Foxx won for Ray. Ray and Finding Neverland also picked up a spare technical.

The typical Academy sweep syndrome led to the usual questionable selections along with favored actor policies. For instance, Morgan Freeman really was not the Best Supporting Actor, even if his multiple nominations in the past makes him eligible for a "career best" type award. Also, Hilary Swank was fine, but one or two were as good or better -- they deserved the award, even if Swank is a fan favorite. Spanish language fans also received a treat (The Sea Inside -- the other euthanasia flick -- for Best Foreign, and a song from The Motorcycle Diaries. In fact, with a French song nominated, Best Song was multilingual tonight.

As usual, there was some nice stuff for the eyes, including some top heavy presenters. Laura Linney's jewelry was a bad choice as was Scarlett Johansson's makeup and hair -- fire that beautician! Kate Winslet looked very pretty though. Robin Williams was typically annoying. And, Al Pacino's tribute to Sidney Lumet (whose book Making Movies is quite interesting) hit the spot: truly honored the man and his craft (directing). As did Lumet's brief remarks.

I guess the ceremony fit the year: a tad bit lackluster. Again, if something big happened after 10:40 (EST), well, my bad.

[Addendum: Reading the accounts, I missed some crying, but nothing too much appeared to happen. Rock really didn't add any additional energy -- his bit railing against second rate celebrities didn't really work -- making his selection as host sadly basically a waste. Btw, I did like the bit where the animated custome designer from The Incredibles came out as a presenter. And, what was that faux sounding gun shot that we heard when Jeremy Irons presented?]

Friday, February 25, 2005

Sports Update

A nod to a blog that linked one of my Slate fray posts.

Not that I personally miss it, but it is sad that the two sides -- at times sounding quite childish -- could not save the hockey season. The value to the union of standing up for the players to the degree that they lose a season and might very well have a worse option next time is unclear. Anyway, not that I remember it, but Miracle is an enjoyable movie (Kurt Russell is great) about the U.S. team beating U.S.S.R. back in 1980.

[To underline the point, this is a very good movie, and arguably deserving of some sort of Academy Award nomination (2004 film). The movie is a superior ensemble effort, a true "movie event" that works on many levels with few false notes. Finding Neverland is not as good. The director has few movies under his belt, but Tumbleweeds is a fine film as well: an ultimate "chick flick" that excels in its own field.]

I'm not a big basketball fan, but even if I was, local action would not be thrilling. There was some noise made that the NY (NJ) Nets came back from a lousy start to a clear playoff run. This is no longer case, especially after over a month of lackluster play that in no way put them above the fray in the game's weakest division. The NY Knicks just stink and recent trades were greeting with head shaking, especially since a bad team just added salary, but only received so-so long term contracts in return (and draft picks from teams so good that they are likely of little value). An important principle is underlined: talent alone does not make a team nor does a limited payroll, though both are central. It is what you do with what you have -- believe me, it is a clear way to make a bad situation much worse.

The principle applies to the NY Mets, which still does not have a championship team on board for the upcoming season. The reason for promise, however, is the fact that there appears to have been a mentality shift. This not only is a matter of picking up a few good players, including a light hitting first baseman who promises to bring good defense and personality. It also includes the work ethic being put forth by the new manager as well as (hopefully) new and improved strength and conditioning (including a new medical team). Last year's team had problems, but like the Knicks inability in January to win five games, the talent alone offered better opportunities. Mets fans have a reason to be cynical, but realistic optimism promises some reason for hope.

Meanwhile, two things recently dominated NY sports talk. First, the Red Sox allegedly had one major interest after winning the World Series: getting on A-Rod's case. I don't know how media created this story is, but the whole matter made the players look like babies. Second, the steroid issue, including Jason Giambi's apparent rehabilitation, failure to come clean (so to speak) to the press aside (the legal reasons involved were mostly understood). Since baseball as a whole, including the media, let steroid (ab)use run rampant, specific blame on a guy that actually came clean in grand jury testimony is unfair. [The new rules still are rather weak.] His past performance, however, is to be seen in a different light.

OTOH, Barry Bonds -- as his biggest fan in NY radio talk sadly noted, clearly a steroid user -- rejected any attempts to come clean or apologize. The guy comes off as an asshole and his upcoming home run record fully tainted in my mind. I'm supposed to compare him to Hank Aaron and Babe Ruth, even though a good chunk of the home runs were made after the steroid use began? Yeah right. And, this idea that true fans will basically just forget about such things once the season begins also appears to me to be bull. Sure, I'm not going to be rooting for Jason (and Gary Sheffield, another user) to choke or anything. [I note that no current Mets player has been highlighted as a user.] Still, if a player is still using, it taints things. It matters.

Anyway, the Yanks did their penance last October. I personally lost my patience with them when they could not get a freakening run after having two shots at the World Series (they would have beat the Cards) in extra innings. I really did after their lackluster performance in Game Six with Jon Lieber -- who could have saved their bacon yet again with a bit of help -- giving them a shot to win. Lieber was let go for his consistency with Jaret Wright eventually filling his role. Some talk is made of there only being four "real" Yankees left -- those who played in 1996-2001. I know this: the team has not been the same since then.

The Yanks have Randy Johnson now and might get another shot at that ring. Who knows. Tell you what though, the Mets have more life in them, more potential excitement. The Yanks, dare we say it, are a bit boring and lost their sheen. A World Series ring is necessary to get it back. Tino Martinez and Mike Stanton might be back, but it will be a bit harder to truly get that mojo back. After all, the ultimate Mo (Mariano) got beat by the Red Sox.

[To add a comment. The ultimate problem with the team, surely one that compares negatively to the golden years of 1996-2000, is the lack of true role players. Miguel Cairo and Jon Lieber sort of played this role, but the team was not as well-rounded as it once was. This is not just a matter of one or two less dependable arms and showed itself in particular in Games Four and Five. The teams of old would have had one of those special moments from the players ... not this time. The 2005 Mets offers this nuance, though the overall talent level remains on a lower level, and it is perhaps its most promising area.]

It was the beginning of a bad end of the year for NY sports ... first Spring Training game is this Wednesday on ESPN. Mets and Marlins. I'm ready.

Takings and Privacy etc.

And Also: I was skimming a book on the application of Jesus in modern life, and a couple things about the virgin birth story came to mind. (1) The story contrasts with those that involve sexual intercourse with the gods, suggesting the Christian (Jewish) God was more spiritual than that. (2) Mary was asked first, though obviously who refuses such things [Jonah tried and looked where it got him] in the Bible? [yeah, probably some, I know] (3) It shows how Jesus went through all the cycles of life, except for sexual intercourse -- I understand the whole original sin deal, but heck it's God -- wasn't there a way around that? (4) Going back to #1, does this account suggest the old view that men put little babies (the sperm was everything; no knowledge of the whole sperm/egg thing) that grew into full fledged ones into a woman's body? Or, is the baby Jesus a total surrogate thing?

I mentioned in passing Kelo v. New London, the Takings case that the Supreme Court heard a few days ago. In reply to a piece by Dahlia Lithwick and Marci Hamilton, I submitted the below. A view of "public purpose" balanced on the side of legislative discretion (with a reply worrying about its breadth) can be found here. A few others noted that when determining "just compensation," the market can be the judge with holdouts "justly" pushing the price higher given the private property concerns involved.
What is more fundamental to the American Dream than owning one's own house - where one's children can grow up, and where one can grow old? And what shatters that dream more than having one's town decide to forcibly sell one's house - at cut rate - to a private developer?

Granted, promoting economic welfare -- including increasing a city's tax base -- is a legitimate public interest. But that does not mean that shifting private property into different hands is always a "public use" simply because the government will profit from the transfer. That is because the government will naturally profit from the operation of the free market, too - without having to intervene among buyers and sellers

-- Prof. Hamilton

Those concerned about the constitutional right to privacy should respect the one time that the word "private" is expressly mentioned in the Bill of Rights: the Takings Clause.

It is said that the "Fourth and Fifth Amendments run into each other" because illegal searches and seizures tend to illegitimately lead to self-incrimination. Well, another aspect of the principle might be made -- the Fourth Amendment honors the privacy of the home as does the Fifth -- not surprisingly, the state somewhat selectively honors both strands.

The ultimate value judgment found in the Takings Clause is expressed by frayster Ozark, who is cited at the bottom of the [Slate] article: before the state takes your home and private property away against your will, it has to go through certain hoops. The historical abuses against the state taking said privacy for "public" purposes are easily reaffirmed by looking at the habits of English kings and such.

Or, local governments these days -- our own President, as some mentioned on the [Slate] fray in the past -- got a nice deal when land was taken for his baseball park. Conservative fraysters could shoot back the example of the NYT getting a nice deal for some property from the city, including some taken for by eminent domain. And, any number of dubious examples might be listed. See, for instance, the chapter in Caroline Kennedy's book on the Bill of Rights on this clause.

"Public use" surely did not mean "anything goes" when it was included in the Constitution, but neither did "interstate commerce" or various other things in the Constitution widely interpreted today.* Those who support a broad power when property is at issue, however, do so unwisely, since property at times is quite important to liberty (and liberals) too. Arbitrary action in this field is trouble, leading to some state courts to try to set up some limits. [Differences in viewpoints might suggest why the Court took this case ... the Court is also hearing another property case today.]

Prof. Hamilton suggests they were right, especially since not only is 'public use' often all too loosely interpreted, but 'just compensation' often means bargain prices -- if the use is so publicly compelling, the compensation should be appropriately reflective. As Hamilton suggests, some standards would balance the competing interests involved.

The concern, however, is that the standards would be makeweight. This tends to prove too much, be it this, abortion, or any number of things. Prof. Hamilton's "rebuttable presumption" or any number of alternatives sets up a warning flag that suggests there are two sides here with important interests at stake, including one's right to private property and protection from sweet development deals that corruptly benefit one side. The tests and rules, however roughly as law tends to do so, balances the scales more than the lack of such standards would.

A final word on the likely dissent, perhaps written on 'originalist' grounds: it should be taken with a grain of salt. Justice Scalia, for instance, was a summer originalist in that when precedent (not the Constitution) supported his disdain for certain environmental laws (public right to access to seashores etc.), he took precedent.

Originalism, a balancing test that deals with both sides, or whatever -- I'm with Prof. Hamilton in feeling this is an important case. The factual issue can be put to one side -- the Supremes deal more with the law, and the law should set some limits here. After all, what good is having a conservative leaning court w/o proper care of property rights?


* A traditional basic violation of "due process of law" was to determine if "property was taken from A and given to B" -- such a view is passe in the current world if said property is used for 'public use' and some halfway defensible payment is offered for said property.

Wednesday, February 23, 2005


Some local news respecting today's entry:
The detainees [in a Brooklyn federal detention center] - none of whom were ultimately charged with anything related to terrorism - alleged in sworn affidavits and in interviews with Justice Department officials that correction officers [complaints] ...

"I was informed the videos amounted to nothing more than shoving, but no serious injuries," said one Justice Department official, who would speak only on condition he not be identified.

But Inspector General Glenn Fine, whose staff reviewed 380 MDC videotapes, reported in 2003 that "These tapes substantiated many of the detainees' allegations." Furthermore, the officers were not just a few bad apples but "a significant percentage of those who had regular contact with the detainees," Fine wrote last March.

Don't worry ...
Traci Billingsley, a spokeswoman for the federal Bureau of Prisons, said that her agency began an investigation of abuse allegations last April - it is still ongoing - after the Justice Department decided not to prosecute anyone.

The people's negligence

Takings Case: Prof. Hamilton suggests why yesterday's oral argument respecting the limitations of state eminent domain power is so important. Further reading might also include the case on a similar matter (another losing effort) discussed in Caroline Kennedy's book on the Bill of Rights. Also, Kevin Drum's discussion of the NYT piece on the true contours of medical malpractice costs is worthwhile.

[Yoo] went on to suggest that President Bush's victory in the 2004 election, along with the relatively mild challenge to Gonzales mounted by the Democrats in Congress, was "roof that the debate is over. . . . The issue is dying out. The public has had its referendum."

-- Nat Hentoff, quoting New Yorker story on "extraordinary renditions"

Much to the disdain of various liberals who cited the fact, Prof. John Yoo (infamous in said circles for his role as Bush legal advisor in the promotion of its free reign philosophy of executive power) had written that the people have spoken -- the re-election of President Bush basically served as a referendum on the administration's policies, including those in the fight against terror. Thus, the people support the administration's views, including its policies respecting treatment of detainees. Sadly, however, there is more than a germ of truth in what he says. And, we should not lie to ourselves and think anything different.

The reply would be to offer proof that some real opposition has been supplied to the administration's policies. We should not ignore such things nor the small successes, including those in the courts, that have occurred. Nonetheless, let us not lull ourselves into a false sense of security.

Cutting through the discussions, a basic principle that the administration still has the right to question suspects without being limited by Geneva or relevant abuse laws holds -- when dealing with CIA led investigations, the administration (and Gonzales) specifically underlined this fact. Legislation that passed the Senate 96-2 to help prevent such abuse was rejected by the White House, including easily confirmed Condi Rice. And, yes, old open-ended torture memoranda have been replaced, but the new memo underlines that legitimate techniques have been used.

Furthermore, where are the true consequences? The people are in some way troubled, but the issue was not of any real relevancy during the campaign or the debates. This alone is telling -- this alone warrants a question if Sen. Kerry really deserved to be President, if he truly was out there telling the people forthrightly why their current leadership had no business having four more years. But, says some, it just wasn't a winning issue. The people would be turned off. Oh? If so, John Yoo is right ... right enough. To the winners go the spoils.

[The fact is that one can forgive the guy if the campaign overall was well done, suggesting the move was a sadly necessary piece of strategy. This is questionable. First, signs of lack of clarity haunted him throughout, and ignoring a major issue offering an alternative voice is troubling on that ground alone. Second, it was not an either/or issue -- there was a middle ground, if he had the guts to offer it. Finally, overall, his campaign was not so good that we can forgive this glaring absence. Those who want to rest on the laurels of being close can if they care to, but certain sports fans can tell you close is of dubious value.]

And, what about Congress? The Congress has the ultimate authority to investigate, including to determine if laws need to be made, and executive or judicial officials need to be targeted in some fashion. [One idiot sneered when I brought up impeachment talk -- what could I be talking about other than blatant partisan smear tactics. Others just see it as a non-starter. Again, re-election is the referendum so that even talk of the minority making some noise about the line crossed is just downright silly.]

Surely, I jest ... not this Republican Congress. This power includes laws respecting international law and rules of war. As one writer noted, congressional power over such matters suggests such matters cannot just be left to the courts. It recognizes a moral obligation of the people themselves and their representatives to face the issue.*

How so? By confirming those who helped (at best through negligence -- by definition, not intentional, but willful neglect -- or at worst, intentionally) promote the abuse to higher office? A special nod of shame to the likes of Sen. Lieberman, who loves to speak about the need of morality in public life, but still was one of the few Democrats who confirmed Alberto Gonzales.

Surely, not by truly investigating to full extent of their powers the abuse and by setting forth regulations that would help our country and other nations regain a shred of respect for our ability to further the rule of law. Let the administration veto -- publicly, not hold it back behind the scenes without a veto necessary as was the case with the 96-2 vote -- and show the country and world their true colors shining so bright.

But, this did not happen. We are now talking about Social Security ... Iraq had their elections, and we can move on -- after Congress gives the President more money with few strings attached to it. After all, if Congress will not fulfill its other responsibilities, why be jealous of its power of the purse? How apt Mt 27:24-25 seems, though with a twist. Bush as Pilate, proclaiming his innocence, but the people not proclaiming their guilt -- the blood is on our hands, all the same.


* The article addressed a little known case from last term that suggested the federal courts had jurisdiction in a limited number of cases arising from violation of international law, though not in the case at issue. The writer felt the obscure law used to reach this result is better read quite narrowly, leaving Congress the role to spell out what violates "the rules of nations." The defendant's previous trip to the Supreme Court is also relevant, since it earlier rejected (6-3) his claim that the United States' illegitimately paid bounty hunters to seize him from Mexico without the nation's consent.

Ironically, his trial was dismissed for lack of evidence, and the second go around respected tort claims arising from the whole affair. This too is a telling aspect, especially given some of the claims of mistaken extraordinary rendition that are currently being discussed in the press. One last tidbit: the seizure took place in part because of evidence the Mexican government was involved in the original crime: a heinous torture/murder of a drug source.

Nonetheless, the main guilty parties could not be reached, so the U.S. targeted in this case a small fry -- a doctor allegedly involved in drugging the victim to assist questioning. The regularization of abuse and extraordinary methods so results: activities used in rare or less troubling cases in the past are applied more and more until the cost/benefit analysis definitely starts to become quite troubling.

Tuesday, February 22, 2005

Coming Out, Going Out

TV: Last night, David Letterman supplied one of his better efforts of late. The Stupid Pet Tricks segment was fun as was the oyster eating efforts (the dogs did not like the oysters and guest Bonnie Hunt did not care to try one either). Bonnie Hunt, looking particularly sexy (she has her "mom" moments, especially since she tends to play them on television and film), seemed a bit off for some reason, but is always a good guest. And, even the by now tedious joke respecting President Bush saying something stupid was funny (some comments about Social Security appeared "dirty" taken out of context).

Maya Marcel-Keyes is pro-life, generally pretty liberal, a lesbian, and Alan Keyes' daughter. She took part in his senatorial run last year, but differences with her parents recently led to a move out of the family home. Maya has spoken about her sexuality on her blog for some time, but has only recently become more "public" about her politics and sexuality -- for instance, she took part in the counter-inaugural in January.

[For those who don't know him -- and to his dismay, this would include quite a few people -- Alan Keyes is a strongly conservative speaker and repeated quixotic candidate for public office, including as a Republican candidate for President. Many blacks in particular are impressed by his skillful rhetoric, if not all aspects of its message.]

The parents and daughter had a fairly good, if naturally somewhat difficult, relationship. This is perhaps suggested by how low key Maya generally was about the whole thing when interviewed by the morning show on Air America. She in fact sounded like a quite ordinary quiet young woman (college student), somewhat surprising given the emotional tones her father often uses in public discourses.

Ah to listen in on the conversations between a father ("Cheney's daughter is selfish" ... Alan Keyes believes in consistency, except respecting carpetbagging Senate runs) and his lesbian daughter. Such things are private though, and we would do best to remember the personal difficulties involved as some obtain joy at the participants' distress.

At any rate, I'm sure the parents would have been proud that she reaffirmed her pro-life beliefs* and desire to save sex until after marriage (or the legal equivalent). The movement for sexual equality is well served by welcoming in such a woman, the symbolically valuable nature of her background aside. It is rather amazing that so many key Republicans have (out) homosexual/bisexual children or siblings (e.g., Newt Gingrich's half-sister) -- simple probability would not necessarily come out the same way. [Only a few percentage points of all people are homosexual and family norms influence accepting one's own sexuality.]

An interesting nature/nurture debate probably can be made here, but ultimately it just shows the true complexity of the human condition. The Keyes family suggest why equal protection under the law (and by society itself) is so important: at some point, we all will be negatively affected if the reverse rule applied. If conservative black parents with a liberal lesbian pro-life daughter does not make this point obvious, I don't know what will.


* Maya Marcel-Keyes is thus one of that often forgotten class of pro-life liberals, a consistent philosophy made only more so on her blog with its vegetarian and vegan links. The interview did not specify if she felt abortion should be made illegal, but in general, her parents' strong religious beliefs did seem to cross over to her as well. As mentioned in the text, this complexity should be honored.

As an aside, I fully respect the pro-life philosophy, but personally find it wrong to cement it in the law. It might also be shown, perhaps, that criminality is counterproductive -- an act might be clearly immoral, but the power of the state is not necessarily the best way to fight such an evil (language used advisedly).

Monday, February 21, 2005

Inside Deep Throat

I don't know why they spent all that money. I don't understand why they're taking it down in two weeks. I don't understand what it's supposed to do. I think the park probably looked more beautiful before the orange monstrosities went up.

-- Sarah Lancaster (Everwood) on "The Gates" display in NY's Central Park

A number of years ago, NYC was invaded by cow-size statutes of cows in a myriad of colorful and amusing shades (including with the colors of the NYC Transit Authority). It was a nice whimsical campaign and trumps this new saffron (orange) gate thing in spades. Okay, so I did not see the things up close yet, but there must be a better way to spend millions of dollars [private funds, thankfully] in the promotion of artistic vision. Putting aside the fact arguably the architects of Central Park would be against the things, they are also environmentally unfriendly. And, seriously, rather boring.

Mind if I smoke, while you're eating?

-- Helen in Deep Throat

How about using the funds for a really good porn flick? Or, just a good romance with a few really well done and erotic sex scenes, even of the 'R' rated variety. I watched the documentary Inside Deep Throat, a fairly interesting if not in any way profound look at the infamous porn flick that inspired the famed name of the (and according to John Dean, ill) Watergate source.

Never did see the flick, though managed to find another famous porn from the era in the NYC public library system (damn boring and ridiculous with not much sex, so I will not name it) a few years back, but it was the 'in' thing to view back circa 1972. The documentary itself is best viewed as a way to catch a bunch of elderly men (and one woman, sounding like George Constanza's mother) sound goofy while reminiscencing.

The movie itself, according to even the director not a great flick, looks to be a mildly creative effort that would thus easily make it elite in quality among current day porn. The clips of Linda doing her thing suggests a certain skill that suggests her malady easily could be handled, resulting in a still quite satisfying sex life for all involved. Seriously, the movie led some more idealistic sorts to think that the porn industry would go mainstream.

This clearly did not happen -- movies themselves became geared to teenagers, teenage boys in particular, so that even finding "adult" subject matters is often quite difficult. Trying to find serious adult romance, not even raising the possibility of a few well done erotic elements (flicks with Michael Douglas do not count*) became ridiculously difficult.

This is a shame. We need a Deep Throat for 2005 -- for would not a well done and even mildly erotic film that managed to receive wide release outside of porn theatres be a major event today? Of course, the likelihood of a true NC-17 film receiving such treatment in this multiplex world is dubious, though 'R' rated films can be quite erotic as well. In fact, many would say that several films managed to be much more sexy than those out there today even in the censorship era of the 1930s and '40s.

What do we have today? The lame Meg Ryan flick In The Cut? The gap is suggested by how much of a breath of fresh air movies like Kinsey truly are. The 1960s slogan of "love, not war" is especially necessary in the realm of American cinema. We need not have blowjobs at the multiplex (two dominating Times Square, after its Disneyification), Brown Bunny included, but a good sexy love story now and again is not too much to ask for.


* Sex in the City was really not much of an improvement from the episodes I managed to watch whenever access to HBO was available, except to the degree they all talked a good game, especially since they never really seemed to be truly enjoying themselves. Many like Desperate Housewives because of its playful sexual tone -- Felicity Huffman, one of the housewives, was in an enjoyable Showtime show back in 1996 entitled Bedtime, a largely non-explicit account of six couples' lives, mainly focused on bedroom conversations. In fact, one is more likely to find some sexy romantic story material on television these days, even on broadcast television, than on the screen.

Sunday, February 20, 2005

SS and Other Propaganda

Talking Points Memo has started to look like a single issue blog -- Social Security all the time. I understand the concern and emphasis in the minds of many bloggists et. al. out there, since it appears this was chosen to be the issue (why truly raise it during the campaign? that's silly). Furthermore, obviously, it is a very important one, one that ultimately hits to the core of the Democratic Party. And, it is an issue which it can really gain traction on.

Honestly, what truly drives my distaste (an apt word -- we are not just talking policy differences here) of the President's strategy is the dishonesty of it all. For those who find the word um misleading, the sorts who want to call "torture" something else like "abuse," let's say that it is just not really the truth. And, furthermore there is an ultimate immoral taint to it all, which again is something that must be recognized when examining the true passion rising in the loyal opposition. We are not just annoyed the other side has power -- we are upset on just how they are abusing it. I use the word advisedly -- abuse, not misuse.

Anyway, now that he is re-elected, President Bush can (in various levels of hysteria) discuss the "problem" ("crisis") threatening the system, while ignoring how his policies worsened the situation. And, generally, misleading the public*:
Some in our country think that Social Security is a trust fund -- in other words, there's a pile of money being accumulated. That's just simply not true. The money -- payroll taxes going into the Social Security are spent. They're spent on benefits and they're spent on government programs. There is no trust. We're on the ultimate pay-as-you-go system -- what goes in comes out. And so, starting in 2018, what's going in -- what's coming out is greater than what's going in. It says we've got a problem. And we'd better start dealing with it now. The longer we wait, the harder it is to fix the problem.

Thus, in effect violating his oath to uphold the Constitution, which in a little known aspect of the Fourteenth Amendment states:
The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.

All the talk about how the trust fund is just a pile of worthless paper in effect lays the groundwork for defaulting on almost two trillion dollars worth of US Treasury bonds. After all, it is one thing to recognize that the bonds put in place of the money spent (on things like his tax cuts) cannot just be spent in the future as if they were regular legal tender. It is quite another to suggest that there is not legal obligation, no "trust," being set up at all.

This is a quite immoral, if nifty, way of dealing with our obligations. It's like promising to pay your children's college tuition, recognizing it will mean some hard (but quite doable) work to obtain the money, so just deciding the promise doesn't mean anything. This is so even without suggesting that making less payments into the college fund already set-up would somehow solve things. In fact, even talking about the two together would be misleading (immoral) because of the tendency to imply otherwise. You know, like talking about 9/11 and Iraq in the lead-up to the war in the same conversation, but denying blame when people think Iraq was involved in 9/11.

Other examples can be suggested, but one that we can close on regards the administration's use of propaganda. Maureen Dowd, whose tabloidish pieces sometimes annoy, hit the nail on the head recently:
They flipped TV's in the West Wing and Air Force One to Fox News. They paid conservative columnists handsomely to promote administration programs. Federal agencies distributed packaged "news" video releases** with faux anchors so local news outlets would run them. As CNN reported, the Pentagon produces Web sites with "news" articles intended to influence opinion abroad and at home, but you have to look hard for the disclaimer: "Sponsored by the U.S. Department of Defense." The agencies spent a whopping $88 million spinning reality in 2004, splurging on P.R. contracts.

Even the Nixon White House didn't do anything this creepy. It's worse than hating the press. It's an attempt to reinvent it.

-- Maureen Dowd

And, yes, this sort of thing was done in the past, but the level of current wrongdoing is just noticeably different. Of course, there are also different sorts of this type of thing -- the use of misleading and/or slanted science and sociology has been addressed in the past. This includes abstinence only programs that in the end worsen the health prospects of our teens, ethics boards where different voices are pressured off, and scientific findings (such as global warning and environmental protection methods) skewered. Finally, the penchant for secrecy has also affected research, leading historians and others to put forth multiple statements of concern.

John Negroponte was spoke of by one commentator as a "fascinating" choice, but not a word of his questionable past (human rights questions, WMDs scare tactics) was mentioned. I noted last time how Fred Kaplan only mentioned such problems in passing, perhaps just trying to put a nice face on a nominee sure to be confirmed. Nonetheless, difference of policy alone is not a problem here. It is a basic feeling that something wrong is going on. I need not emphasize this fact each time, but it's worthy of underlining now and again.

After all, suggestions that the other side are really the moral ones aside (their skill is suggested by the fact this is not laughed out of the water), I might not be a born again Christian like the President, but I know morality and lack thereof when I see it ... and this is not it [with apologies to Justice Stewart].


* The link goes to the horse's mouth, so to speak, and also has a discussion on the new class action law which shifts various lawsuits to the federal court with the intention of decreasing their number. There is an amusing bunch of b.s. on how lawyers somehow rob the public by being involved in certain class actions with thousands of members, resulting in small per person judgments ($50 in the account addressed). Thus, the greedy lawyers get big money while we get chickenfeed. The fact that the guilty party still has to pay out significant funds to the public, thus (1) compensating a loss and (2) being somewhat deterred from future wrongdoing is somewhat ignored. And, if small amounts are meaningless, what about the small amounts the average citizen receives from Bush's tax cuts?

**An article discussed the practice: "And those were not isolated incidents, David M. Walker, the comptroller general, said in a letter dated Thursday that put all agency heads on notice about the practice.

In fact, it has become increasingly common for federal agencies to adopt the public relations tactic of producing "video news releases" that look indistinguishable from authentic newscasts and, as ready-made and cost-free reports, are sometimes picked up by local news programs. It is illegal for the government to produce or distribute such publicity material domestically without disclosing its own role."

Friday, February 18, 2005

Friday News Round-Up

Reading my local tabloid, the NY Daily News, I was a bit overwhelmed about all the topics of interest that were covered. This entry will be a quick run-through of various stories that caught my eye.

More Depressing Bush Appointees: There was of course the usual depressing President Bush related news. Slate magazine had two articles yesterday that tried in some way to put a good face on the appointments of Elliot Abrams and John Negroponte to key positions. First, there is talk of liberals being in a troubling position because they might support the democratic ends but not the dubious means used by the other side. The real problem is that not only does corrupt means suggest corrupt ends, but also the Bush Administration's own words suggest they are not really totally supportive of democracy anyway.

As to Negroponte, Fred Kaplan puts asides his dubious record (human rights in Central America, promoting war in Iraq because of an overblown WMD threat, and so forth -- the second thing particular trouble for a new intelligence czar) because he might actually bring real power to the job. This is not a totally stupid argument, but a controversial Bush crony is still just not a great choice.*

Porn Republicans: Moving to the editorial page. Errol Louis, a local columnist that provides very good criticism of political skullduggery, discusses James Guckert aka Jeff Gannon, the Republican plant at White House press conferences qua gay porn star. This is one of the things that drives one to wonder how in the hell the Republicans are controlling the government.

This guy was recently connected to a partisan paper (Talon News, which I recently used as a source elsewhere to discuss Republican economic polices) that was allowed to go to the press conference under an assumed name without undergoing a full background check, apparently to ease his job of lofting softballs to the administration. Louis in fact notes that Guckert actually appears to be connected to the Valerie Plame affair as well, since a story he wrote suggests access to juicy details for which government investigators should be interesting in.*

CK and SS: Charles Krauthammer has an editorial on how "Bush [Social Security] crisis script is pure fiction." He refreshingly suggests that much of what President Bush is offering is "fictional," including any suggestion private accounts are relevant to reforming the system. Nonetheless, his spleen is concerned with the fact that there is a problem; one "the chief reformer" (ROFL) does not help by basically being full of shit. Oh, and the Democrats' plan is "to stick their heads in the sand." Well, no -- they have several ideas; they just find Bush's rhetoric as fraudulent, overblown, and counterproductive. Krauthammer, however, is a partisan hack, so skips over this.

Finally, CK is partially right to be dismissive of the "piece of paper" (government bonds) deposited to back-up the SS trust fund. Al Franken is pissed off by such rhetoric because our government has an obligation to back government securities and suggesting they are worthless is a libel on our government. True enough -- the problem remains, Al, that we have to find a way to pay-off said securities. As Franken and others suggest, there are some fairly easy ways to tinker with the system to allow us to do so. Not that "the chief reformer" (yes, still ROFL) has made it any easier especially, his tax cuts and Medicare Bill (true cost rising by the day).

Deanna Allen: It is outrageous that the military is "chaptering out" Deanna Allen as a result of some rowdy business she was involved in at a party to blow off some stream. The local tabloid's editorial board found this outrageous too, though their paper did not find it troubling to repeatedly print tabloidish pics such as her showing her breasts on camera.

The blame really lies on superiors who were not able to keep order, including over much worse activities than this. As to Pvt. Allen (already demoted), at worst some disciplinary actions should have been taken, though I do not really think mud wrestling or whatever at a party is exactly something we should care about. But, okay, discipline does matter -- this penalty however is just too extreme, especially since guys have done worst for years without even a reprimand.

Proposed Legislation: Sen. Clinton is sponsoring the Count Every Vote Act, similar to legislation that failed to receive committee hearing last session, but might get more attention now that the Republicans are offering their own version. The bill would require verified paper records for electronic voting machines, make Election Day a federal holiday, require early voting in each state, and restore voting rights to felons who completed their sentences.

Probably too broad to pass in full, but lots of good stuff. I'm dubious about early voting, liking the idea of one election day -- making it a federal holiday would help many of the problems that early voting addresses. The verified paper trail at a minimum is just plain necessary for the integrity of the franchise. The felony provision is imho quite fundamental too, though its chances of passing are probably small.

Councilwoman Gail Brewer (D-Manhattan) has put forth legislation that would be the first in the nation concerning the question of accurate advertising respecting starting times for movies. "Pre-feature content" (not just previews, but increasingly, ads) at times push back starting times in multiplexes as much as fifteen minutes past the listed times.

I doubt this really is necessary, since moviegoers recognize the fact, plus the exact times would not be consistent at any rate. Nonetheless, it definitely is one of my pet peeves -- I actually enjoy movie previews, though after awhile repeated viewings are tedious, and starting late allows rest room breaks and purchasing overpriced goods from concession stands. Still, the growing use of ads is downright annoying.

One more thing: Just what legislation respecting transferring interstate class action suits to federal courts that was signed by the President into law will wrought is unclear. Various legal minds suggest probably nothing TOO much, especially in the short term. The law received some key Democrat support in the Senate, but is seen by some as hypocritical because state rights Republicans are increasing federal power and in effect criticizing states.

Nonetheless, neither side is ever fully consistent, and this sort of area is clearly a legitimate (if perhaps not necessary) use of national power. And, Republicans supporting legislation that helps big business [the President's suggestion today that it is in place to help the small business owner is not to be taken seriously]. Shocking! Seriously, this legislation might be trouble, but less than some rhetoric probably suggests ... and there's a lot more to worry about at the moment.


* Branzburg v. Hayes is the 1972 Supreme Court decision that rejected a claim of press privilege to resist testifying in front of a grand jury when the result would threaten their relationships with sources. It was a 5-4 decision with a brief concurrence by Justice Powell that some appeal courts gave more weight than it might deserve in order to supply the press some protection. It is a quite interesting opinion as are the dissents (Justice Stewart's dissent had a chance of being the majority opinion), especially because of the range of issues touched upon.

** Another issue is that he was only appointed ambassador to Iraq about a year ago. Is this really the time to switch horses in mid-stream? Let's bypass the fact he was apparently the fourth choice. Finally, such caveats from the NYT doesn't breed secure thoughts: "What he has not consistently demonstrated is the kind of bedrock commitment to democratic values, professional independence and frank relations with Congress that he will need to successfully do a job whose powers have already been dangerously diluted."

Wednesday, February 16, 2005

Spill The Beans Since Bush Won't

Gilmore Girls Watch: Yesterday's episode was pretty good quality-wise, but I'm sooo tired of this downer season. Rory looked gorgeous and the scene where she and Paris asked "experts" for boyfriend advice was funny. Nonetheless, it was hard to watch Lorelei crushed after Luke apparently (who knows if it will stick) broke up with her. Dramatically, it was true, but this show is supposed to be light with shades of seriousness. This season was full with seriousness, mixed with some forced acting. The last two episodes were better quality, but the downer theme continued (though finally the grandparents reunited). Do the writers of the show hate us fans? Please, please enough of this!

I discuss and supply some interesting links related to the federal appeals court decision to reject two reporters' claim to privilege from testifying in connection to the Plame Case here. An immediate inclination that should be resisted is to laugh out loud at the fact that Judith Miller is involved. Okay, maybe you should, but remember another reporter with a young son is also affected, while Robert Novak is still at large.

This latter point is not only important because it is simply outrageous, but also because if he testified, the need for others to do so is greatly decreased. And, when such need drops to a certain level, a good case can be made that the First Amendment concerns of journalists should be at their highest point. A concern, as the linked discussed notes, is shared by conservatives as well -- including those supportive of a pending federal reporter privilege bill.

As to the judges' comments on bloggers, let me be clear -- I'm not currently talking to anyone that is likely to have any value to federal investigators. Seriously, blogs can be dealt case by case (as suggested by Judge Tatel, who by the way put forth another well reasoned opinion -- this is one Bush appointee that appears to be a good one, his opinion in the Cheney Energy Case notwithstanding). People like myself really cannot be said to be members of "the press" without much amusement, but Talking Points Memo or other elite blogs probably should receive top press protections.

When dealing with issues like reporter privilege, there probably should be some institutional presence, some connection of the "reporter" to the institution. The profession arguably offers a few special benefits that a regular speaker do not have -- suggesting why "the press" has separate protection. The line, as blogs suggest, is not always a clear one. Nonetheless, the privilege would be meaningless if any speaker could demand it.

Anyway, some suggest that the reporters here were basically duped, so should not use privilege to benefit wrongdoers. This turns privilege on the facts, which is tricky, but is reasonable (if not necessarily correct) in this context. Others suggest the investigation is so important that they must give up the goods. Jack Shafer at Slate argues that this is somewhat dubious, though I'm inclined to share the thoughts of someone (see link above) that disagreed with much of his reasoning.

Either way, the real target should be Robert Novak: he clearly knows the source(s), so there is no reason why the other two should be in jail while he is free to do his usual gruff commentary. Judith Miller, whose guilt on other matters is clear, in particular seems a strange target in this case, since she seems to be a small fry in this matter. Maybe not, I'm not as into the details as some bloggers, but still what about Novak?

And, what about the administration at large? Again, this is not a case of a reporter being the only sources available to convict a drug dealer or murderer. The administration itself surely has ways to find out who leaked the story (they probably know), so threatening reporters is especially unjustified in this situation. This is the ultimate injustice: insiders try to use the press for their own vindictive purposes, Novak takes the bait and is currently free, and others do not but are threatened with imprisonment. Oh, and if the administration seriously wanted full disclosure of the truth, it surely could happen.

Thus, talk about constitutional or common law reporter privilege and/or wondering if the Plame leak actually was a criminal act warranting the press being targeted is largely besides the point. The ultimate issue is the continuing lack of shame by members of the administration -- top down. Same shit, different day.

Tuesday, February 15, 2005

Justice Douglas' Private Griswold

Krugman on Dean: "For a while, Mr. Dean will be the public face of the Democrats, and the Republicans will try to portray him as the leftist he isn't. But Deanism isn't about turning to the left: it's about making a stand."

Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony of living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.

-- Griswold v. Connecticut, 381 U.S. 479, 486 (1965)

Justice William O. Douglas was the author of the precedent that truly introduced "the right to privacy" as a fundamental (federal) constitutional right. The opinion, Griswold v. Connecticut, argued that past cases had referenced such a right, including in the Fourth Amendment context. Nonetheless, Griswold firmly gave such a right wide breadth, speaking of "zones of privacy," arising out of several constitutional guarantees. And, one key area of protection is married life.

Justice Douglas spoke from deep personal belief and experience. He is known as one of the most libertarian minded justices in our history and was very serious about his privacy. This concern applied to his family life, which in time became more and more controversial. In fact, his words honoring the "hopefully enduring" nature of marriage were rather ironical by 1965. After all, he had already had two divorces and was on his way to a third. No other justice before him, and only two afterwards (Justices Stevens and Thomas, only the former during his time on the bench) had even one divorce.

William Douglas’ family life during his early career was fairly regular and without controversy. Nonetheless, once appointed to a federal regulatory position, things began to change. He thrived in Washington D.C., but the same could not be said about his wife (Millie Douglas née Riddle) and children, all of whom felt he changed for the worst. The end of his marriage did not occur until he was on the Supreme Court for over ten years, but the seeds were sown some time before.

Justice Douglas’ second wife was a better match to his Washington lifestyle, especially since Mercedes Hester Davidson was formerly married to a former Assistant Secretary of the Interior. She was a good conversationalist, comfortable at home and at political dinner parties, and had a similar love of travel and the outdoors as her new husband. Nonetheless, Mercedes was also independent and not willing to put up with some of Justice Douglas’ less savory qualities, including his bullying and infidelity. Thus, it was not totally unexpected that the marriage did not last ten years.

These first two marriages alone add an interesting context to Justice Douglas’ inspirational words about marriage. For instance, an important aspect of marriage was "harmony of life," not solely loyalty to one’s spouse. Thus, if a marriage did not accomplish such an end, one or both members of the couple might opt out. Also, his experiences and choices suggest a certain selective practice of the principle of "bilateral loyalty," especially to the degree accounts suggest he treated his wives and children unfairly. Finally, "privacy" includes the right to make one’s own choices, especially if especially if "intimate" and "sacred" matters are at stake. The fact that society might not approve is on some important level beside the point.

While still married to Mercedes, Justice Douglas fell under the spell of a twenty-year-old college student, Joan Martin, and wooed her for two years until she agreed to marry him. The marriage soon proved to be the opposite of harmonious and soon Douglas had his third divorce. The union suggested the importance of the various aspects of a successful marriage noted in Griswold, including the dangers of rushing into one that clearly lacked the basic qualities a successful one would involve. Nonetheless, missteps and mistakes are part of freedom, including choices involving marriage. Divorce therefore provides a valuable outlet for those unions that turn out to be unsuccessful.

Justice Douglas’ final wife was also a young college student, Cathleen Heffernan, but one who was a better fit to his personality and lifestyle. Her youth, independence, liberal views, and loyalty matched well with her ability to not be overwhelmed by his strong personality and accomplishments. Surely to the surprise of some, this marriage proved "enduring and intimate" and a valuable promotion of a "way of life" on both sides. Cathleen Douglas also proved quite essential when her husband became ill, leading his children (older than her) to respect her care and devotion.

In the end, Justice Douglas proved to be a useful example of the importance and complexities of the right to privacy that he had such a key role in establishing. The importance of individuals having a right to make their own choices largely outside of the restraints of the state is quite evident, even when not involving those who used such freedom in as untraditional ways as he did. Nonetheless, Justice Douglas’ life underlined the possibilities, while showing that they are not always smooth sailing.

Privacy, however, is only fully protected when options are available to help deal with such troubled times. The right to divorce is such an option; one that in the end perhaps ironically promotes the goals of the institution it is in place to wrest asunder. If a marriage fails to further its noble goals, it at times becomes counterproductive to them. Thus, divorce provides a way to dissolve the union, and perhaps set the path for a "do over." Some might argue that Justice Douglas abused the privilege once too often, but in the end, perhaps even he proved its ultimate value.

If so, his life was not so ironical next to his words in Griswold after all.

Monday, February 14, 2005

Gadfly Edition

Abortion: Salon (thanks Paul Waldman) had two articles on abortion that highlight my basic philosophy. One was written by his sister, who spoke emotionally about her own second trimester abortion, which she chose to have after discovering her fetus had a serious deformity. The fetus was no abstraction, she mourned, and still firmly believed it was a correct decision for various reasons. Thus, someone can believe an embryo or fetus is in some way (human) life worthy of respect, but still morally choose to have an abortion. Or, so is the belief of people across the abortion divide in quite a few cases.

Language can and is used by those in the pro-life camp, so those on the pro-choice side are leery about terms. Nonetheless, when we look at the stories of real life women, things look a bit different. For instance, women testified about their "partial birth abortions," including those with seriously deformed fetuses with little chance of even surviving, and had the procedures to be able to become pregnant again.

This is a quite "tragic" situation, but when the word is tossed around (including by Sen. Clinton), we have a right to be a bit uneasy. As the second article suggests, many women really do not see abortions as tragedies, especially the more horrible connotations of the term. Again, real life stories help add perspective, and perhaps are the most valuable way to show why the right to choose is so important and complex.

No Integrity: I'm sickened and tired of hearing about the administration and all of its wrongs, but how can you ignore some of its misdeeds? There was the smear of Richard Clarke, a career government employee, who served his country through both Democratic and Republican presidencies. He was said to be some sort of disgruntled pro-Clinton nut, mainly it seemed because of strong criticism of the Bush Administration and the guts to apologize for not doing enough before 9/11.

One thing Clarke did do, though Condi Rice and company denied it,* was supply a report on the al Qaeda threat. Secretary of State (sigh) Rice has been in Europe lately to accept apologies from "Old Europe" for being right on WMDs. Not being totally disgusted at this sort of thing is quite hard. And then you can read in Slate and other places about non-action and questionable choices respecting North Korea ... and so on.


* "No al Qaeda plan was turned over to the new administration." - Condoleezza Rice, March 22, 2004. Rice and company has a penchant of not wanting to admit or release material that would even possibly put them in a bad light, even if there is a good chance that eventually it would come out anyway.

I once had a tedious debate with someone on a message board concerning the ability to be wrong but not at fault -- we learn from our mistakes, though our mistakes are not always negligent in nature. Nonetheless, we need to examine what we did so that we can reflect and have a full accounting. This might be used by some for mischievous ends, but people with integrity have the guts to face this risk because we must have a full accounting.

Saturday, February 12, 2005

February Holidays

Quickie Law Tidbit: A brief N.Y. court ruling compared allowing a defendant's right to have a drug counsellor present at a closed hearing to "the sort of moral and emotional support in the courtroom that is normally given by family members. In another case, another defendant might be permitted, for similar reasons, to obtain entrance to the courtroom for his or her psychiatrist or a member of the clergy." It also cited an earlier case where a girlfriend was included as well. This is just an example of looking at the broad function of a rule or privilege and not limiting its reach to narrow contours. Increasing rights to same sex couples is thus but one aspect of a wider theme that in general should not be too controversial on some level.

February is a short month and deemed by some as the worst month of the year, especially since it is in between football and baseball (the Super Bowl regularly was one week earlier ... and there was a hockey season for those who cared). It is not too bad in my eyes, though the sports issue does open up a black hole of sorts, and it actually has a lot going on. After all, you have Groundhog's Day, the beginning of Lent / Chinese New Year (unlucky for marriage time time around!), and Valentine's Day. And more. The Academy Awards and Grammies too.

The movie to watch for Valentine's Day is probably Bride and Prejudice, though some might like Hitch. Now, some might find this "vapid" and a "total waste of their time," but this Bollywood take-off of Pride and Prejudice is fun.

The movie offers nice eye candy (Indian beauty queens in key roles), silly but fun big song and dance numbers, and a taste of another culture (kissing seems to be taboo in these flicks). It tapers off toward the end, though the cameo of Gilmore Girl Alexis Bleidel helped, and a couple too many heavy-handed necessary subplots mar the experience. Overall, still worth a look for those in the mood for this sort of light fare.

Lincoln's Birthday (2/12/1809) is still a bit controversial in some parts, though now McDonalds* has ads about fries that look like him. The same would be the case if Darwin's Day (his birthday is the same date) was celebrated more often. After all, it still is a tricky situation teaching his works in schools in several places. Science is at times a forgotten discipline in this country, and his birthday might be a good time to honor the field.

Many places don't separately honor Lincoln and Washington's Birthday, settling on Presidents' Day instead. The day, however, is not really in honor of all the presidents, even the top ones -- only the two really tend to be included. What about others with a birthday this month: William Henry Harrison and Ronald Reagan? Well, okay, point taken. Anyway, I was watching Joseph Ellis discussing his new biography on Washington, and it sounds rather good. Washington's General: Nathanael Greene also looks to be a good read.

So, February is a pretty good month -- hey, so it's a bit cold. It's winter, it's supposed to be cold. It's invigorating. [It's not really that cold here in NYC, though we had our moments.] Anyway, it's almost half over already! Tempus fugit!


* Said fries are probably a bit less fatty, since the company agreed to pay millions to promote healthy eating to settle the "fat lawsuit."

Thursday, February 10, 2005

On Apology by Aaron Lazare

With a pseudo-apology, the offender is trying to reap the benefits of apologizing without having actually earned them. People who offer a pseudo-apology are unwilling to take the steps necessary for a genuine apology; that is, they do not acknowledge the offense adequately, or express genuine remorse, or offer appropriate reparations, including a commitment to make changes in the future. These three actions are the price of an effective apology. To undertake them requires honesty, generosity, humility, commitment, courage, and sacrifice.

Aaron Lazare, M.D., is Chancellor and Dean and Professor of Psychiatry, at the University of MA Medical School, but don't let his credentials scare you. His new book On Apology is a very down to earth in depth discussion on a fundamental aspect of human interaction with many examples* supplied to guide the way. The power of apology is found in its "prospect of restored respect, of healed relationships, of civility, and of a clearer sense of morality among individuals and nations who inhabit an ever-shrinking world." And, apologies are valuable to both sides -- the offender and offended.

Apologies have special connections to religion and law. Repentance can be deemed a religious apology with (per Harvey Cox, theologian) remorse, resolution (promise not to do wrong again), restitution (to harmed), and restoration (of offender to community) being its basic components. Components that basically transfer to "secular" apologies as well.

Dr. Lazare also notes that the legal process is a sort of ritual apology as well with components that match those found in the apology process, including an offense, explanation, remorse, reparation, and negotiation. Finally, aspects of apologies, including negotiation, are found in disciplines traditionally thought as not a good fit. For instance, Dr. Lazare has argued negotiations are valuable between doctors and their patients (clients).

The book is rather remarkable about how the author breaks down the apology process into its component parts. One can get lost in the details at times, I guess, but it also makes it easier to understand -- the book's subheadings provide a useful outline. One interesting discussion is the phenomenon of failed apologies, which is broken down into eight examples (you get the idea of the framework of the book! seriously, it's fine). For instance, often no "apology" is really being made -- more of an apologia (justification) or sympathy (without necessarily taking blame). Also, there are weasel words like "if mistakes were made" or "I'm sorry for offending you" (basically apologizing for wrong offense).

It's a great book, very smooth reading too.

[The book also brings up something I believe is the basic wrong related to our ongoing war with Iraq, one that can be said to be a failure to apologize. Dr. Lazare discusses the concept of delayed apologies that are a result of a changing understanding of ethical principles or knowledge. For instance, a child grows up and is sorry that they wrongly bad mouthed a parent, especially after they become parents themselves.

Though it isn't that easy, I would argue that our government and nation can admit that we helped Saddam Hussein and others in Iraq to promote horrible things because we felt it was necessary at the time. Wrongs that we now say partially justify our going to war, especially since the world is different today. The New Republic, which supported the war, basically took this view.

It is much more honest than the administration's path of not admitting to our role in Saddam Hussein's wrongdoing. And, this has led to much disgust as many felt the hypocrisy was blatant. As Dr. Lazare noted, the government likely felt it would cheapen their position if they admitted some fault, even though it might be ultimately in their interests to do so.]


* The examples are both simple and profound. One amusing one involved his wife wrongly accusing their daughter of stealing a brownie. He also references a well-known Seinfeld episode. Profound examples include a man tortured in a Japanese P.O.W. camp and one racked with guilt about being involved in the bombing raid connected to the famous picture of the Vietnamese girl running nude after a napalm attack.

I'd add that listening to Yankee player Jason Giambi "apologizing" today would have been a good example of a "pseudo-apology," especially given the real subject (steroid use) was off the table because of legal concerns. I particularly enjoy his emphasis on how much he is working out -- this is supposed to be a special thing? Anyway, the remarks were full with apologies for making trouble and unspecified wrongs. His legal problems make the remarks understandable, but an "apology" it really was not.

Wednesday, February 09, 2005

TV Watch

Torture Defined: "Torture, however it is carried out, is a frontal assault on human dignity, a through debasing of an individual in order to intimidate him into revealing information. The intent is to debase the individual, be it through pain, drugs, or other methods, so much that the will of anyone in his position is likely to be overcome. ... Torture actually has a lot in common with terrorism, which is also intended to intimidate people into acting based on assaults on human dignity, usually on a larger scale."

Gilmore Girls had its hundredth episode yesterday. It involved a renewal of the grandparents vows, allowing the usual chance for some interpersonal crisis to develop. The episode was pretty good overall, though Rory's dad and the current guy she is interested in both are characters that annoy me -- pretty boy types that complicate the girls lives without offering much in return for the audience. They are basically WB cuties without some of the real character weight that makes some of them worth my time.

I must say, however, the look of pure disgust and anguish on Lorelai's face at the end of the episode, after finding out about her mother's attempt to break up the relationship with Luke was a dramatic highlight. This season had too many moments that did not seem to be emotionally real or fully so -- that moment was definitely not one of them.

West Wing also was a very good episode. Christopher Lloyd guest starred as a law professor helping to guide newly free ex-communist nations in the writing of their constitutions. He expressed the basic need of instilling a basic constitutional tradition. An underlining spirit that guides the interpretation of the words. [Meyer v. Nebraska was used as an example, a 1920s decision that overturned a ban on the teaching of the German language, arguably a result (so felt Justice Holmes) not compelled by the document itself.*]

A spirit that at times seems to be lacking these days, surely to the degree the tradition is one we should wish to follow. Meanwhile, Toby was worried about the long term stability of the document, including the dangers of exporting our presidential system, which does not quite follow just the words of the Constitution. The other plot about Iran and the president's illness was also well done.


* "Without doubt, it ["liberty" protected by due process] denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. ... [A]nd it hardly will be affirmed that any Legislature could impose such restrictions [the targeted law] upon the people of a state without doing violence to both letter and spirit of the Constitution."

Tuesday, February 08, 2005

Dean as DNC Chair

Shut-up Or Go To Jail: Once I was on jury duty involving a typical buy/bust drug case and the strongest doubt from the jury came from some white middle class suburban mom looking type. The same sort of person who was victim of injustice for being a strong citizen advocate as told in this story. For basically being a pest, a middle-aged Hebrew School teacher from White Plains, NY received six months in jail (prosecutors asked for a five-day suspended sentence) for allegedly causing a disturbance in the halls of Congress. Given the tenors of the times, Elena Sassower might have got off easy.

Though the apparent ease of the accomplishment contrasted somewhat by coverage suggesting stronger opposition, Howard Dean is now clearly the new leader of the Democratic National Committee. His role and ultimate power is somewhat unclear, but what is apparent is the attempts to smear his record.

A telling suggestion of the prevalent view is a short article in a local paper that spoke of "moderate" Timothy Roemer stepping down from the race. Another editorial, far from atypical, implied the Democrats were digging their own grave for settling on such a radical voice. Expect various mentions of his "scream" at the Iowa caucus and so forth.

I voted for John Edwards as a protest vote in the NY Democratic Primary, Dean officially haven stepped down by then. Many people liked Edwards more than Sen. Kerry, though the realistic among them realized the former did not have the experience and gravitas to win it all (not that the realistic among us felt Sen. Kerry had the best of shots either).

The point being that the supporters recognized his limitations, but also his strengthens, which I feel were not fully taken advantage of during the general election. If Gov. Bush could be spun into a pretty good candidate, I do not understand why Sen. Edwards could not be made into a more successful second chair.

Well, I can -- the Democrats still have not quite learnt how to fight back. It's like chubby not coaching his team to win at the end of the Super Bowl on Sunday: uphill battle, good chance of still losing, but damn it man, give your team a fighting chance! Time management, candidate management -- comparable.

And, the same might be said about candidate judging. Gov. Dean supplied a lot to the table: grass roots advocacy, passion, a fiscal conservative record, a penchant for hard work, a reputation as a honest straight shooter, and an overall moderate record as a governor. He upheld a promise to cut taxes. He carefully handled a court order to protect the rights of same sex couples.

And, state liberals were not too happy about him, including Dean's compromises with state business interests. Meanwhile, he had a good environmental record, did some good things about health care, and so forth. Yes, he was against the war with Iraq (not Afghanistan), but he was right. OTOH, he did not have the experience to be a president in a time of war. And, Dean just did not connect to the voters across the board in part because he could not handle the shift to early frontrunner to long haul.

So, like Edwards, Dean did not have what it takes to be the candidate in November. Nonetheless, they both had some real talents and something to offer the party. And, to the degree the favor powers that be (including apparently the Clintons) do not like him, this is not a bad thing either -- said ptb have been lacking in various departments.

A final thing. Roemer and others argue that the Democrats have to recognize that chunks of voters out there just do not agree with them. They have to accept that on various grounds voters feel President Bush is right. This is basically the temper of the remarks these days, including about "values." It is bloody defeatist. I'm not clear how the Republicans, when they were the minority party, suddenly had an eureka moment, and started to admit the Democrats ("liberals") were right.

Oh, they might show as much with their acts (e.g., Medicare Reform Bill, aside from all the gifts to corporations), but it is not their overall message. They know better than that. The role of the Democrats is to show the people at large how their platform in reality does match what mainstream America believes in.

Howard Dean is a decent representation of this principle -- not his image, his life and deeds. In fact, the push to get those proverbial swing voters is quite arguably advanced with a man who various libertarian Republican sorts felt would have been an acceptable choice, especially if he just had a few more qualifications fitting the times.

A person who the base can appreciate for his willingness to passionately criticize the president, but who deep down is satisfactory to moderates too. As noted by some more balanced accounts, he also has shown a willingness to work with insiders of all types. Thus, I think he has a possibility to be a pretty good choice, especially if given a chance.

Monday, February 07, 2005

Odds and Ends

Monday Morning QB: The Eagles' offense took forever to score, leaving less than two minutes left with the score 24-21 (Pats). The decision to attempt an onside kick (when expected, rarely retrieved) therefore was suspect. Pinned to their own End Zone with :45 left, they looked terrible. I think a good argument can be made that they would have had more luck kicking off, relying on their defense to hold, and having much better field position. Overall, bad time management left a bad taste of "what could have been."

Bush Administration: The proposed cuts (in place to pay for tax cuts or rather tax shifts) are offensive -- they hit the people least likely to vote for the Republicans, including veterans (if they take a closer look at how they are being treated). Also, given all the hype over the UN and the Oil For Food Program (including the "shocked shocked" talk about things the U.S. knew about at the time), how about Halliburton's misdeeds? Also, just what was that money to Maggie Gallagher for? Oh, and the sanctions basically worked -- no WMDs.

Gay Marriage Ruling in NY: After reading the opinion, I'll add a few more remarks. The opinion begins with its strongest part: the facts. The couples are in all ways like heterosexual married couples, including having children (NY allows same sex couples to adopt), except for their sex. One person's mom even had to move to California to be able to marry her spouse, thanks to a court decision there that overturned the state's ban on biracial marriages. And, domestic partnerships are a weak alternative -- they cover few of the over one thousand benefits, rights and privileges the U.S. GAO recently noted marriage offers.

The basic core of the ruling is that the state constitution of New York protects a right to choose whom to marry (one in some sense also protected by the federal Constitution), a right the state did not submit a compelling reason to deprive to these plaintiffs. New York is special in this respect in various ways, especially its right to second parent adoptions and special housing rights arising from the "family" aspects of homosexual relationships.* Also, the Supreme Court itself in Lawrence v. Texas honored the right to same sex couples to have relationships. Finally, New York protects said relationships from discrimination in various respects.

Thus, and all states would not be in the same boat, the plaintiffs' battle was not too hard. The state did not challenge the stability of their relationships. "Tradition" could not trump the right to marry, nor did the fact that other states might not recognize the unions. And, thus, there was no rational basis (offered by the state) to discriminate on account of sexual orientation.

I'd add two things. (1) Clearly expressed or not, sex specific marriage laws put forth stereotypical views about sex roles and are illegitimate on that ground.** (2) This ruling is in no way final; the state's informal role suggests as such. Thus, prudent or not, it does not really matter, since this is almost as important as pre-season baseball. With that in mind, the ruling is fairly reasonable, if at times conclusionary.


* The state also has no mini-DOMA, thus another NY case recognized a Vermont same sex couple's domestic union for the limited purposes of settling a property dispute. Nonetheless, it also noted such recognition did not violate state public policy -- the decision argued (in an interesting section) nor did the ruling here.

** I'd return to my acceptance of the term "domestic union" because ultimately we are talking about benefits. The main problem with this is that the term "marriage" brings with it special benefits. Tricky. Anyway, those who want to define relationships that in all ways but one are marriages by another term also have a problem on their hands.

Incestual unions and polygamy are missing more important aspects of "marriage," which as defined in our society involves two person unions outside the (immediate) family. Discrimination based on sex is a bit more tricky, especially since gender roles alone do not decide the issue. Finally, developing acceptance of homosexuals factors in as well -- "tradition" develops, including marriage. Divorce and spousal rape once were narrowly handled in N.Y.

Sunday, February 06, 2005

Decent Bowl XXXIX

NY Same Sex Marriage Case: A state district court judge in NYC (how fitting) struck down the sex specific domestic law of New York. An appeal will be submitted; the ruling surely will not hold. The words of the decision are nice, but is this the way to go? Maybe not -- I think you target the discrimination of benefits, not "marriage" per se, when you fight this thing in the courts at this point of time.

Still, it's only a district court ruling, so calm down. Jack Balkin, as my comments at his blog suggest, is weirdly over the top in his criticism. Ditto on the Dean pick as DNC head. See here for a few thoughts why the hyper critics should just take a bloody chill pill.

Lame commercials; not too exciting game.

The game was tied 7-7 at Half Time with neither team playing that smoothly. In fact, the officials weren't too good either with two key plays overturned. The Pats committed some penalties and a key fumble, but the Eagles' touchdown was eventually matched. This was the theme of the day -- the Eagles responded in the Second Half, after NE went up 14-7, but soon enough the Patriots made it 21-14. And, as is apparently necessary, a key (chip shot) field goal gave the Pats an important ten point lead.

After an interception at up a bit of time, the Eagles managed to get the ball back with about 5:30 left in the game, but then went into slow mode. They really had to score before the Two Minute Warning, though they did not seem to be in any hurry. This might have really been fateful, but the Patriots gave up a long pass not long after the final break. The Eagles could not regain the onside kick, but had two time outs left. They got the ball back near their own End Zone with :45 left, needing a field goal to tie. It was a long shot, but possible -- but again, they didn't execute very well. An interception on Third Down clinched it.

24-21. The Pats probably was not too nervous any point during the game. The Eagles suddenly became cautious and lackluster when it counted. A bit more effort, they could have very well scored before the Two Minute Warning, making it tougher for the Pats (and maybe get a chance to punt, making that final drive a lot easier). A special nod though should be given to TO -- Owens did not just come back and play after a serious injury six weeks ago, an injury few thought he would conquer in time, but was a key player in the Eagles arsenal today. His mouth might turn people off, but his actions back up his words.

Kristof Is Annoying Again

Super Bowl: As a NY fan, this SB is as lovely as if the Red Sox played the Braves in the World Series. I'm inclined to support the Eagles, who have a shot (the Pats twice won by three points), since the Pats are starting to achieve that "greatness" label. New England really does not need this much glory; they really do not know how to handle it all. I'm ready for Super Bowl XL.

As Kevin Drum says, "this is just annoying." To wit: "Nick Kristof thinks liberals are wrong for obstructing George Bush's Social Security plan — even though he agrees it's irresponsible. ... Seriously, what planet is he writing from? Everyone with a pulse knows perfectly well that neither of [Kristof's] proposals has even the slightest chance of being considered by anyone in today's Republican party. They are complete nonstarters."

Furthermore, plenty of Democrats have ideas on the subject ... they just think there are lots of more important things to worry about, know that the President will demand his (in Kristof's own words, rather bad) proposals be used, and overall that the President is (as is his wont) misleading the public about an important issue. Drum links a hilariously on point response to Kristof here. Thus, I join Atrios in making Nicholas Kristof the wanker of the day.* What a bloody moron.


* Drum suggests someone from Fox News beats him out, but really, that's silly. Kristof actually claims to be on the side of the Democrats he calls to task. Kristof is part of the "oh, so you think our press is too liberal, huh?" brigade. I'm all for perspective, but being blind to reality is really not the best way to approach it.

Saturday, February 05, 2005

Roe: Loyal To Precedent (Part II)

And also: Interesting victim impact evidence capital case discussed here.

[The first half of this series explained how Roe fit with precedent, which is often not pointed out by its critics. This entry will use Justice White's views to show how selectively opposing one aspect of the rights involved is in fact quite arbitrary.]

Justice White dissented in the abortion cases along with Justice Rehnquist, but only the latter justice was broadly opposed to the principles involved. Justice White's concurrence in Griswold expressed in emphatic terms his support of privacy rights:
It would be unduly repetitious, and belaboring the obvious, to expound on the impact of this statute on the liberty guaranteed by the Fourteenth Amendment against arbitrary or capricious denials or on the nature of this liberty.

He also basically supported the sentiments of other justices in that case that the alternative could be forced contraception. So why is abortion different? The nature of Justice White's concern as well as the misleading nature of his argument is suggested by this excerpt of his dissent in Doe v. Bolton:
At the heart of the controversy in these cases are those recurring pregnancies that pose no danger whatsoever to the life or health of the mother but are, nevertheless, unwanted for any one or more of a variety of reasons - convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc. The common claim before us is that for any one of such reasons, or for no reason at all, and without asserting or claiming any threat to life or health, any woman is entitled to an abortion at her request if she is able to find a medical advisor willing to undertake the procedure.

In U.S. v. Vuitch, the majority opinion was written by Justice Black, who was no liberal constructionist -- he dissented in Griswold, for instance. Nonetheless, the majority's stance on "health" was rather broad and held that the statute met: "the general usage and modern understanding of the word 'health,' which includes psychological as well as physical well-being." Some of Justice White's list arguably fits into that definition.

Furthermore, the Texas statute only allowed abortions when the life of the woman was at risk. Therefore, "the heart of the controversy" was surely not that broad. Likewise, the "common claim" was not that women wanted abortions for "no reason at all." Therefore, something more than merely concern for the unborn (a concern involved with some contraceptives used at the time -- IUDs) is suggested.

An equal application of the rules is just not involved in such reasoning (and hyperbole). In various cases, Justice White accepted that privacy concerns were important, so important that various laws had to be declared unconstitutional. A reasonable argument could be made that Roe was too broadly written, that some more limitations on abortion were justified.

Nonetheless, it simply is not so that the argument made was so ridiculous. In fact, the very fact that no "other surgical procedure" was given such special scrutiny, even when life was involved, suggested [see Douglas' Vuitch opinion] a certain bias. The same appears when two parent notification provisions were examined, again abortion was specially treated, even when life and death was potentially involved (e.g., surgery and military service ... and childbirth).

The special concern is currently supplied because an abortion is being considered. Clearly, it is not a matter of health, though since Texas did not even prosecute a self-abortion, the once dangerous nature of the procedure might have been an important factor. Roe takes special care to show that the unborn was not protected as a constitutional person, and no justice suggested otherwise. Thus, it is constitutional in the eyes of them all to allow abortions.

A law that seriously infringed the right to have an abortion, however, would interfere with various rights that many decisions held as fundamental -- some clearly touching upon enumerated constitutional rights. And, the countervailing reasons amount to moral opinions touching upon "potential life" (the opinion might have said "potential constitutional persons") interfering with such rights. Moral opinions of great dispute among various religious faiths, making selectively picking and choosing among them on such fundamental questions especially troubling.

Justice White's later expansive discussion of why abortion is different does not solve such concerns:
one must at least recognize, first, that the fetus is an entity that bears in its cells all the genetic information that characterizes a member of the species homo sapiens and distinguishes an individual member of that species from all others, and second, that there is no nonarbitrary line separating a fetus from a child or, indeed, an adult human being. Given that the continued existence and development -- that is to say, the life -- of such an entity are so directly at stake in the woman's decision whether or not to terminate her pregnancy, that decision must be recognized as sui generis, different in kind from the others that the Court has protected under the rubric of personal or family privacy and autonomy. Accordingly, the decisions cited by the Court both in Roe and in its opinion today as precedent for the fundamental nature of the liberty to choose abortion do not, even if all are accepted as valid, dictate the Court's classification.

Justice White is right to suggest that the presence of the unborn requires some special treatment, but each privacy/autonomy case is likely to have its special concerns. For instance, medical contraceptives require special care and more government regulation than the viewing of sexual materials at home, which itself must meet concerns about potential minor viewers. Nonetheless, Justice White's reasoning cannot be used to ban abortions without several difficulties arising. Two major issues are postconception contraceptives and the life/health of the woman.

Push come to shove, it is unclear if Justice White would uphold a law against "morning after pills" or banning abortions necessary for protection of the health of a woman. As noted, Justice White only avoided the dangers of the Texas law by exaggerating the alternative -- debating what "health" means suggests just how nuanced (or extreme) his reasoning turns out to be. Also, would he support forced abortions or penalties for those who do not have them? Why? After all, putting aside his above description, states can still allow abortions. In certain cases, concern for life might quite rationally include not allowing such life to be born.

And, finally, as suggested by Justice Stevens, the "no nonarbitrary line" argument tries to prove a bit too much unless again he would oppose various types of contraceptives or not take into consideration the moment of the pregnancy when determining if a law is rational given concerns of the health of the woman. Also, to the degree the line is arbitrary, it is essentially a value judgment best left to individual choice not the state. The importance of the choice here only highlights this fact. Justice White wants to pick and choose his support of this principle, but this just does not fly.

It would be hard to target this one right without also harming any number of other rights. Those who are willing to do so, such as Justice Rehnquist and Scalia, can fairly easily be challenged.* Others want to ignore why the right to choose an abortion cannot be separated from other liberties without a not small amount of arbitrariness going on. And, the concern for the unborn does not save them either, except as to the breadth of the right involved.

This suggests why Roe v. Wade was a 7-2 opinion and the majority of the lower court opinions agreed with its general principles. And, why -- especially given how forthcoming opinions clarified just what it meant -- they are worthy of our respect as well.


* Justice Thomas appears to be in this group, but has made it known that he supports a more libertarian regime of uncertain reach. For instance, compare his willness to join an opinion involving rights to raise one's own children with Justice Scalia's support of the right personally, but not constitutionally. The opinion cites a dissent, interestingly joined by Chief Justice Rehnquist, which supports a broad reading of the Privileges and Immunities Clause (14A) that would have done the job in Griswold.

Thus, we are back to the interests of the unborn child, or a debate over the breadth of the right. A right that generally speaking is quite "traditional" as a citation in an abortion case of a 1839 case (see footnote 33) respecting marital privacy. Concerns that the right to privacy is being read too broadly might arguably do (though few really want to take this argument too far) the trick, but the emptiness of the pro-choice argument suddenly becomes much less obvious than the emphatic opposition would want us to believe.