Power of the People

And Also: Are the Rockies outfielders really as bad as they have looked when playing the Mets? I received a new phone book today -- comes with free gifts. An ad magnet and a miniature subway map booklet (folds up to business card size), which in fact also has ads. Finally, Bush just recess appointed a Wal-mart corporate hack to protect workers, a few days before Labor Day to boot. Isn't it Princess Jenna's time yet?

Dahlia Lithwick is among those online sources discussing a Linda Greenhouse article on the decrease of women clerks in the Supreme Court. I'm not sure why they decided to entitled the former piece with a reference to "girls." DL, but not Linda Greenhouse, cited the woman written blog that appears to have first taken up the case (it cited the male run Volokh Conspiracy, better known, that took up the subject ... but did so [showing the charm of blogs] by citing the source that they were responding to). That blog entry spoke about "female" clerks. The blogger also was a tad tiffed that she wasn't referenced by name.

I don't know about the general trend -- it might be too soon to tell -- but put in my .02 here. Overall, it underlines how true equal protection cannot be fulfilled by "technical" equality, but by being aware of real life results. A response put up (a typical for him/her) strawman response. My general sentiment with miscreants like that person is to wonder if they are actually that clueless or just troublemaking trolls. Stupid is easy; actually answering stupid, not always so -- for instance, maybe you now do not only have to state and/or clarify your views (remember, we are dealing with the apparent clueless, so they have to be damn obvious), but correct the person's own misconceptions. This gets tedious fast, but there is some contentment in it, and it can help one's reasoning process.

[Update: I referenced a reply to my comments on the drop-off of Supreme Court law clerks as well as the fact a few justices in particular have had a tiny number (25-2 sort splits). It seemed to me to set-up a straw man argument is a particular way that I just could not take seriously -- a sort of passionate statement of stupidity.

A second comment was not really better, but used a more polished approach. But, really I do not want to give him too much credit, since honestly I never find his arguments too credible. It also seems like he is always spinning, avoiding any trouble points. I really do not think it is just a matter of difference of opinion. This might just be me, since I do not tend to admit error, and one will find it hard to change my views based on years of contemplation and so forth. Still, his use of "qualified" and so forth is simply unconvincing. And, he has a bad track record, though maybe he thinks the same of me.]

On that general subject, it looks like my younger brother will be going to jury duty for the first time. No, though he has voted, Tom has not been exactly a gung ho citizen sort in his first few years of adulthood. But, this just makes him fairly normal. The charm of jury duty, even if it often is cited largely as a check against arbitrary government, is that it forces the general public to act like citizens. Once upon a time, we had a mandatory draft, which provided another way for (male ... Israel shows how this very well can also be women) the obligations of citizenship ("the militia" in this case) to show itself. Some basic educational requirements is a third area where this is shown.

All three in some sense requires citizens to come together and show how "the people" firmly has power in this country. Other voluntary groups come together for related reasons, thus the First Amendment speaks of the right of the people to assemble and petition the government for redress of grievances. But, in many cases, the people have to be pushed a tad to fulfill their obligations, to carry out their power.

A power and obligation that supposedly furthers the public good, even if other actors in specific cases (a single judge) would supply the same results. Thus, even in complex civil cases, it would not do to take power away from juries. As to education, it is a means to prepare for adulthood, not simply the three Rs, but for public citizenship. All the same, the charm of (public) education is to bring together people of various creeds/races/genders/etc. to work together toward this end.

The role of the citizen can be dull. Surely, though people like Sen. Lieberman will go beyond the realms of basic decency to retain it, being a public official is much of the time. C-SPAN showed Rep. Murtha campaigning, shaking hands and such. Looked a bit bored ... but it goes with the territory. Such is the case with jury duty, which can be dull, especially if you are not called to serve. Some don't trust the people called. [I read a factoid once that juries agree with judges deciding alone about 80% of the time.*] Time has shown that trusting the "experts" can be problematic as well. Anyway, there are checks and so forth, no one group has all the power.

But, here in a republic, the people have a central role. Not to to protect liberties but because the service itself helps the pursuit of happiness. In other words, the journey itself -- not just the destination -- is worth the trip. So, run with it, Tom.

---

* The linked case also noted: "when juries differ with the result at which the judge would have arrived, it is usually because they are serving some of the very purposes for which they were created and for which they are now employed."

Kennedy Again

And Also: There was a nice story in the paper today about how a dog was saved and might just be destined to be a police dog. Also, a few interesting thoughts -- including a neat baseball metaphor tossed in -- that joined together two rather different musicians. And, Mike Malloy guest hosted this week ... appears he doesn't like eating "sea spiders" aka crawfish etc. Guy is a nut. Definitely of the "Bush is evil" (aka the Bush Crime Family) crowd. Secular edition. Has a reasonable side, but Bush clearly drives him crazy. Not that this is necessarily wrong, but when he does things like delving into 9/11 conspiracy theories, enough. Still, I wish they would have not let him go.

I was listening to some more speech excerpts from the Let Every Nation Know CD-Rom yesterday ... he sure had that "Kennedy accent," which might be regional, but it does bring to mind a certain family. [The penultimate clip had a punch to the solar plexus moment -- RFK telling his supporters that King was murdered -- you can hear a sudden cry of despair. RFK was murdered soon afterwards -- the third son killed young, the second murdered.] What stood out was a certain idealism, a certain vision of our nation's place in the world, one that involved some obligations to our nation and the world. For instance, he spoke of a declaration of interpendence, an obligation for the nations of the world to work together for a better world. I want that again. It is possible. As I noted, John Edwards might have it.*

The speech transforming July 4th in particular reminded me of one of my favorite scenes of The Farmer's Daughter, starring Loretta Young. She has to read a speech for class and the manservant of her employer, a senator, has her read something in support of the League of Nations. It in part sadly spoke of those who blocked our role in this predecessor to the U.N., an organization created a few years before the movie came out. How much has things changed since c. 1920? Do we truly know our responsibility, the reality of "interdependence?" Not quite. JFK spoke of Alexander Hamilton's nationalism, his push for people to "think continentally," which JFK changed to "think incontinentally." But, one gets the idea that even Hamilton is too much for many now. New Orleans underlines this.

JFK also had an image as an educated man, a man of ideas and culture. Thus, he had Robert Frost read a poem at his inauguration. [The book noted that Truman liked to play the piano and bothered Bess when Lauren Bacall once draped herself on one as he played. Not quite Marilyn, but Bess had him put the piano away.] His famous push, which he did not consider worthwhile at the very beginning of his term, to get a man on the moon before the end of the decade has been used by Al Franken -- why hasn't Bush spoke of energy independence/alternative energy in this way? But, science and Bush have not been great bedfellows. JFK might have had to deal with the "so-called religious issue," but Bush is the one who lets religious beliefs get into the way of intelligent public policy.

One of my favorite local columnists, who can do light and serious about equally well, targeted a recent news report that scientists have found a way to harvest stem cells without destroying embryos. A follow-up noted that it is not totally clear how well this works, so I think one should take things with a certain grain of salt. Nonetheless, she notes that it is clear to her that it is possible -- she has the sons to prove it. In fact, the method is similar to the one used to test in vitro cells used for test tube babies. The Administration, however, notes that it is morally wrong to do any sort of experiments on human life of this sort. Again, I withhold my judgment for now on this technique, but it is a powerful column.

Just to toss it in, a few blogs have (rightly) honored a pro-choice commercial for an admittedly something of a longshot primary challenge by Jennifer Lawless. I would like if her reference to the "27" anti-abortion votes of her competitor (a pro-life Democrat, the sort voting for The Anti-Michael Schiavo Act and other illiberal measures) included a breakdown of the actual votes. A sort of footnote -- obviously not in the commercial, but why not on her website? A quick web search brought to like some of them (no funding of abortions for military wives and so forth ... outrageous claptrap), but a fuller accounting would help. Back up your words with details. When you are on the right side (and it looks like you are), this tends to work out fairly well. And, don't worry -- many will not look at the footnotes anyway.

Now, I love footnotes. But, I'm not even a resident of Rhode Island. So you are safe.

---

* I actually donated to his campaign in '04. In return, one received a campaign CD, which was somewhat cheaply made, but a good idea overall. He also wrote an interesting variant to the campaign book, Four Trials, which was in effect an account of four particular trials Edwards worked on in his role as that much maligned profession, the civil trial lawyer. Edwards used them as a background to telling his story and philosophy about public service. He moved on to serving the public (as he saw his job as) in the private sector (in which he did rather well for himself) to the public sector (one term as U.S. senator). I bought the book; if one donated $35 to his campaign, one received it for free ... not bad.

Edwards' message has a RFK flavor (though in his 50s now, JE also has that boyish look to him), focusing on poverty in America. More broadly, he speaks of the average person, especially the worker who does his/her day's work, but does not receive what might be said a fair return. Thus, health care and related issues add to his message. One would toss in unions, the importance of which is spoken with force here.

He seems a bit weak on foreign policy, though his clear statement that he wrongly voted in support of the war -- no ifs and buts -- is appreciated. And, other than Clark, I don't know what Democratic frontrunner is really strong on that subject. Clinton? Maybe.

Various Things Somewhat Connected To Each Other

And Also: The Mets had a bit of lag after a great road trip, one that probably hung over past the All Star Break. Now, though David Wright is slumping, the team surely looks to be in a groove. Taking two out of three, even with fill-ins (though John Maine seems to be firmly set as the No. 5), from the on the rise Phillies underlined the point. The latest winning solution: great pitching mixed with the big inning, helped by some breaks. Aside from a un-Yankee like ability to replace starters on a consistent basis, the team is comparable to the team across the way ... including a "give them a break, they will bust thru it" mentality. Oh, the Yanks don't have a triple machine though.

Jason DeParle in American Dream used the lives of three interconnected women to discuss the real life effects of "welfare reform." His ultimate conclusion was mixed -- the women was able to survive before and after said reform, the push to work arguably had some effect, but a lot less (especially on familial well being) than one might think. Ending "welfare as we know it" alone surely is not the road to the promise land.

Brad Plumer has some good dubious remarks on the subject. I'd add that some suggest the reform, whatever it might have entailed, was a "Republican victory," even if it came under Clinton's watch. I'd say this is not totally true -- as with "free trade," it was important that some major Democrats signed on. Also, it just underlines the Republican-lite nature of many of Clinton's policies. The fact he is smeared as some leftist liberal sort only underlines how far right things have shifted.

Apparently, the editors of what is deemed by some to be "Joe Lieberman Weekly" want to take the Clintonian approach on the subject. As to JL, a comment a few days ago to my post about a week back on why I don't think blogs are giving too much emphasis to the battle in Connecticut noted that he is campaigning with Republicans. I read about this after I wrote my original post and referenced it later on. Now, some suggest that this really shows that he should be stripped of his committee ranking member positions.

This might very well require more than Sen. Reid, since others would have to step into his place, and some probably will be loathe to do so. Still, I am with the critics -- he campaigns with Republicans, doesn't support those Democrats running in Connecticut (not his party after all), and is a fifth columnist for the Republican Party. Why should he retain Democratic positions?

The comment also suggested that the biggest fear that JL is angling to be the next Secretary of Defense ("Is Joe Lieberman going to replace me? Maybe. Is he a schmuck? Sure."), leading to the Republican governor replacing him, dropping one vote from the Democratic Caucus. I really don't know how much truth is to this talk, so have decided not to go into it. Anyway, if Senate control relied on his vote (this suggests pretty good success in November), if he would resign even with a possible shift in control, would he not vote for the party who secured his job in the first place? I don't know why he would be chosen anyway, since so many people despise him to such a degree that JL simply would not serve as much cover. And, he too is so hard on the ears.

Some voices in the administration at least seem on some level to be rational souls that are not knee-jerk Bushies. In practice, see Powell and Rice, this turns out to be a lot of image over substance. But, on some level, it is true. Thus, many respected Richard Armitage as a professional among hacks. We now hear -- though many suggested it as a possibility for some time -- that he somehow accidentally or something leaked Plame's status. The co-author of the piece reassured critics that everything hasn't changed -- the Bush White House still is guilty of a morally disgusting smear campaign with clear criminal overtones.

Still, Richard here is no "political gunslinger" (though still an interested party), and (eventually) saw the error of his ways, telling the proper authorities at State. Now, various blogs are wary about the story and point out to troubling questions and unanswered questions. I'm tired of the whole thing, personally, and getting caught in unclear details might be a fun parlor game, but it really gets tedious. I focus on the wider picture. For instance, yet again, long after the events, the press tells us important facts. They knew this long before now. Also, if RA was so concerned, why didn't he firmly and publicly come clean before now? Guess, he wasn't that worried about making things right. Finally, a LAT story about a year ago that provided a good timeline of the case until then noted:

After a June 12 [2003] Washington Post story made reference to the Niger uranium inquiry, Armitage asked intelligence officers in the State Department for more information. He was forwarded a copy of a memo classified "Secret" that included a description of Wilson's trip for the CIA, his findings, a brief description of the origin of the trip and a reference to "Wilson's wife."

So, how exactly did RA "innocently" do anything here? The guy was a Deputy Secretary of State. We are left to relying on the "well he was in no way as wrong." Uh huh. This is the sort of thing that led people to try to separate Michael Cooper from Judith Miller, since the latter was not a family man or someone who avoided being a Bushie stooge. Avoid targeting the assault, since there are so many murders going on. Doesn't quite do it for me. And, yeah, this will be used by some to try to get the others off the hook. So, on some level, the "good guy" is an enabler, which is itself fairly reprehensible. These people are no Claude Raines -- haven't seen any joining the Free French yet.

Talking about idealistic things from the past, I found a nice book in the library with a companion CD-ROM entitled Let Every Nation Know: John F. Kennedy in His Own Words. It provides a look at JFK via his speeches, excerpts provided on the CD-Rom. JFK comes off as conservative on various issues -- he was a Cold War Warrior, for instance, who actually honestly thought fallout shelters would protect us while his hesitance on civil rights has been noted by many -- but charms because of his idealism and expectation that the U.S. and its citizens could serve as a forceful leader in the fight for freedom. Someone to believe in.

Bush has the freedom talk, but not much else. Thus, the collection has a Bay of Pigs period warning to the press to be more wary about printing things that are threats to national security ... but joined it with a statement on the danger of secrecy ("repugnant in a free and open society") overall. The remarks left something to be desired, but even then there were shades of why people respected him.

Other stuff included: remarks on the "so-called religious issue" of his Catholicism, promoting the Peace Corps and the space race, the power of the presidency, and remarks the day before he died. There are now various ways to hear voices from the past ... including Johnson and Nixon tapes. It is a remarkable taste of history, and the companion book here by Robert Dallek and Terry Golway (who wrote an interesting book on Washington's General, Nathaniel Greene) is well done too.

Oh, Alberto Gonzalez was sent over to Iraq to discuss the rule of law. No seriously. As to the murder case and the weirdo, I guess I was right to toss in a comment at the end of my post on the matter that we shouldn't assume anything yet. Talking about soap operas ...

Katrina: One Year Later

And Also: I saw a nice tidbit in the paper that there will be an automat again in Manhattan, those "eateries" with food in little coin operated compartments. Until I guess sometime in the 1980s, there was one of those left in mid-town Manhattan. There was also one in the Cary Grant/Doris Day movie That Touch of Mink. Also, some funny comics today, including Pearls to Swine (root cause of poverty: "lack of moneys") and Elizabeth got some good news. Hopefully, it is a sign that another teacher I know will be able to get a better position. Liz is such a charming character. Doonesbury too was on the money -- though I thought of the joke before today.

TPM mentioned the coverage of the first anniversary of Katrina, noting (tellingly) in passing the section of the blog that deals with New Orleans, or rather "after the levees." TPM proper often references muckraking features or guest columns on various subjects. But, the TPM Cafe section also has separate entries concerning Katrina related posts and John Bolton, who is admittedly more Steve Clemons territory. We learn that Sen. Hagel -- patron saint of rational Republicans, especially now that McCain became Sen. Suck-up (very nauseating) -- will decide whether or not to vote for Bolton's confirmation* after meeting up with him. Sure, since it's such a close call.

Checking over the Katrina section, I noticed an outspoken piece that suggests New Orleans should be deemed more important than the Lebanon Conflict. First and foremost, it is our own citizens, and very well might come up again ... again, to our own people. I admit that I myself have not read up to much on the issue, nor have kept on date except for the general tidbits. [I also continue to find Michael Chertoff, who resigned a lifetime appellate judgeship for a rather thankless job he quite arguably is much less skilled at, rather creepy looking.] But, the numbers simply are glaring. Sixteen hundred -- maybe more -- dead. Hundreds of thousands of homes destroyed. A major diaspora of residents, 2:1 black but one comment notes about equal numbers will not return, with significant demographical and possibly political effects. And, a basic failure of the ability of the government to care for the public good.

This underlines the problem, the contrast that should be shown between the current political approach and the one we the people should promote and demand. It also is what makes John Edwards such an appealing character, one who is willing to underline the problems of poverty in this country and the need of government to do something about it and the public good overall. The fact he came from fairly lowly origins encourages this theme, while the fact he lost a teenage son (and his wife battled cancer) perhaps reinforces it. There is a sign there that he is not simply cozy about life, having things handed to him, gliding thru like some people that come to mind. I still find the guy a bit green, but as in '04, like his spirit. [Successful presidents inspire; think Kennedy, Reagan, and Clinton.]

I just started a book by Ivor van Heerden, a Louisiana hurricane expert, entitled The Storm to regain some ground on my knowledge of the situation. Perhaps with an assist from his co-author, Mike Bryan, the book has a fairly laid back, straightforward tone to go along with its scientific (reference made to being reality based) concern. I'm not quite into it yet, but when I saw it (second go around -- always useful to find those possible gems) in the library last week, it was a no-brainer. Anyway, his appearance on C-SPAN Book TV put forth a good impression. van Heerden suggests the possibility of private/public synergy (including the important of research and educational institutions); surely their importance to the public good. It simply is not the message being sent by the current bunch.

NOLA brings forth a lot of passion, including something clearly akin to hatred of the Bush Administration. Remember the line that Bush simply doesn't care about black people? Grandma Bush saying that refugees in a hellhole sports stadium were lucky, since hey, you know ... [Al Franken loves to tell a story about her being bitchy to him and people telling him that it was no act ... and that Dubya takes after his mama.] Digby has a post suggesting there is in effect a plan to toss aside NO, change the demographics, and make the state more Republican. And, others suggest the administration and their supporters (or Republicans generally) just see it as some way to benefit their cronies.

I have a bit of trouble accepting the intentional neglect theory -- a better approach seems to underline malign neglect, one that might not occur if they had a reason to care. And, yes, race in involved here. I don't know how much by intent. But, neglect and effect is pretty significant by themselves. There clearly is a troubling aspect, how big is unclear, of racism out there in public officials. It just makes it harder to fix the problem, one worsened by an overall mind-set.

One that does not trust in government, even in cases when it is clearly necessary. One that is willing to rely on private entities that require oversight and restraints that those now in power clearly refuse to supply, not just out of greed, but out of simple conviction. This is key -- much of the disgust on this side seems to come from a feeling that the other side are simply malign hypocrites.** But, perhaps it is more troubling that so many are not.

Toss in a distaste of cities, surely ones that might compete with Babylon on the sin level in some people's mind, and you get an idea why it is not just racism. A lot of white people in this city ... you know, the one with no national landmarks according to a recent Dept. of Homeland Security risk analysis. Still, too many urbanites, Democrats, and homosexuals, probably. Not that NY government also should not be given some of the blame for the fact there still is a big hole in the ground in Lower Manhattan (still, bad taste reference there Mayor Nagin). And, as usual, there is so much wrong, so the critics have some good points to make.

I just think sometimes that the focus is a bit off. A good timeline of the events before, during, and after is here. The overall nature of the disaster was underlined in the need to use Greek letters to name the final set of hurricanes, since they ran out of the pre-set names (not all letters used, a few names retired beforehand).

I recall the days when hurricane names had themes, like names from the Honeymooners or something. There was no Trixie, since it was boy/girl, and "T" was male. So, they named it after Tommy, a minor character. OTOH, something off about that.

---

* The recess appointment about to run out -- hey, don't we generally nominate/confirm appointees of this importance the first time around? Guess not, since so little emphasis has been put on the fact.

** It is one thing to have a mentality that some might find personally distasteful. Thus, I have voiced my feelings of people justly called Tories on the issue of presidential power and so forth, a sentiment some sneer at as based on petty partisan grounds. This helps the conversation a lot, as one might guess. And, I do find them to be hypocrites as well. But, bottom line, it is the yes principled (they can be bad too) mentality that gets me in the end. In fact, the "end justifies the means" mentality helps explain the hypocrisy.

I think we can fall in the good/evil trap that we argue is so distasteful.

Sunday Thoughts

And Also: Someone came here looking for info on Chloe Breyer's protest arrest in response to a NYC police matter. Here is a sadly dismissive look at her path to the ministry. Those new age lib types ... they can't have true religious experiences like people like these. I find this as sad as it is elitist claptrap.

Nothing too interesting in the NYT today, but elsewhere there was a troubling breach of civil liberties in the fight against terror. Glenn Greenwald is on the case; I provide additional commentary.

Snakes on a Plane, like Slither, sounded like a fun movie ... and both were. SOAP (as it is sometimes known) had great word of mouth online, including in the blogosphere. Apparently, it was even edited with this in mind, including to add some spice (including a pretty sexy sex scene and a tell tale line, plus perhaps some added violence ... some of it rather cruel, perhaps a bit too much) to increase things to a 'R' rating. The movie arguably took a bit too long to get going and the last scene was a bit dumb, but the core was exactly what the title suggests. The dynamics of horror flicks, especially who dies, also is generally followed ... with a couple small exceptions.

Good cast. Samuel L. Jackson, of course, but also Julianna Margulies (of ER fame ... she has had various good character roles), Rachel Blanchard (Cher of Clueless, doing a sort of Legally Blonde turn, at least dogwise), and various less well known names ... though a few faces look sorta familiar, another regular feature of enjoyable genre films. Character actors make movies. BTW, the witness that puts things into action is bland. There was also a red herring, so to speak, on the plane as well. Finally, again, some explicit tidbits. The snakes are pretty wicked looking too. The film is downright creepy at times, which also is a plus for this sort of thing.

Anyway, talking about that sex scene -- someone I know talked about how someone else decided to get a HPV vaccine for her teenage daughter. The vaccine was somewhat controversial because conservatives thought (where have we heard this before?) that it would promote sex. As we know, teenagers have the good judgment that if they are not vaccinated to prevent a chance of getting cervical cancer, they will shall we say stop at third or something. Just to toss in something that underlines that these discussions aren't just theoretical or something. Also, come to think of it, there was a somewhat interesting book review today. Related subject.

Finally, I see in today's NYT, there is a heartening story that California, including via a law on Gov. Arnold's (up for election ... you know the normal way ... year) desk, is getting into the fight against the DEA's stupid asinine targeting of industrial hemp. A Ninth Circuit ruling has struck down attempts to ban the importation of hemp products, such as those used to make hemp flavored frozen waffles and the like. The substance has many uses.

And, simply is not dangerous at all ... the trace amounts of THC that might pop in notwithstanding. This suggests why it was used, including by presidents, for centuries. You know "hemp" as in "rope" or Hempstead, Long Island. Sheesh.

Plan B and the Political Process

And Also: Even though they gave up Abreu and Lidle, the Phillies are playing very good of late, giving the Mets problems too. [Lost 3 of 4, but then won seven straight, a streak ending yesterday with the Phillies in town.] Such problems are aided by the nature of the Mets starting rotation these days (with El Duque taking a game off, it has the flavor of the Reds rotation -- last year's), but still ... OTOH, I really don't trust the Phillies. They are bound to slip up once again. Don't buy those wild card tickets just yet.

My local paper was glad that a reasonable "compromise" could be found on the Plan B matter, since it was shameful that it was not accepted for general use without a prescription given the clear scientific (as compared to political) realities. This is true enough. I responded to the "compromise" partially with an extended legal analysis, suggesting it violates Carey in particular. This is one way I tend to view things, but surely, the general process was dubious on other grounds. And, I covered some of that as well, again in my own fashion.

Government is set up to protect the rights and well being of its citizens. At least, that is the idea here. This leads to various political debates that affect the liberties of the people at large. Liberty often is secured in this messy fashion, even if it is not always ideal. Rights are not just to be ensured in courts of law, though sometimes it seems members of Congress or the executive department does not quite understand their obligations.

This is again somewhat messy with some real victims, victims we should not just speak of as abstract entities that are necessary parts of republican government. But, it is reality. All the same, there are limits. There are great debates over them, but they are there, and denial of such realities also is troubling. Thus, it annoys me to no end when people basically discuss abortion rights et. al. as fundamental liberties (often with clear constitutional flavor, based on express constitutional demands), but arguing we should leave them to the whims of legislatures.* They do not truly honor this warning:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

Justice Jackson's use of "Bill of Rights" should be read broadly, since that very case involved the Fourteenth Amendment. As with most glorious words, they must be put into perspective. We read of "certain subjects." In practice, "one's right to life, liberty, and property" is subject to "vicissitudes of political controversy." But, only up to a point. There are some limits. Political and ultimately open to court correction. And, both can learn a bit from each other.

And, to harken back to a continual theme, our republican government is guaranteed by the "United States." Art. IV. This includes three branches of government as well as the people at large in their character as citizens with a necessary assist from the states, which often are given a bit too much discretion in the area. I do not want my citations of federal court rulings to imply I miss the interlocking nature of the security of our liberties. But, our system does put limits on each, and both as bad politics and breach of the letter and spirit of past court rulings, the treatment of Plan B is shameful.

But, are we led by people who have a sense of shame?

---

* I was recently looking over a collection of essays by John Hart Ely Jr., an independent minded constitutional theorist who also sounded (RIP) like a nice guy. Nice sense of humor and self-effacing as well. He also wrote a famous law review article ridiculing Roe, even though he was pro-choice. The collection excerpted his famous anti-Roe law article, famous in part because he is personally pro-choice. Why? Well, basically for reasons that fairly easily can be stated in constitutional language.

Plan B

And Also: The NYT article provides a money quote: "The agency has regulatory authority over a quarter of the United States economy. Despite this huge portfolio, three commissioners devoted countless hours to considering whether to switch Plan B. a small-selling, decades-old medicine, to over-the-counter status." I wonder: should this politicizing of women's health really be deemed legit? As the article notes studies suggest, it will be no panacea, just one useful way to further women's health, and yes, stop some unwanted pregnancies and abortions. See below for a lot of chatter on the matter.

Let's go back over this torturous history. In 2003, the FDA's scientific advisers overwhelmingly recommended Plan B as safe and effective enough to be sold over the counter without any age restriction. It was described as "safer than aspirin.'' The right wing promptly went ballistic and tried to cast Plan B as an abortion pill. When that failed scientific muster--emergency contraception does nothing if you're pregnant--the same groups got behind the push for escalating age restrictions.

First, a cowed and politicized FDA told the manufacturer to reapply, restricting the pills to 16 and over. Then, more than a year later, one acting FDA commissioner upped the age up to 17. Now the newest acting FDA commissioner, Andrew von Eschenbach, has pushed the age up to 18.

-- Ellen Goodman

I noted yesterday that the FDA acceptance of over the counter use of Plan B contraceptives was 3/4 of a good thing. The extended lag time leaves a bad taste, especially since it clearly was not medically mandated. In fact, a lawsuit is ongoing respecting this very fact. The FDA is not supposed to be the morality police. And, this is clearly the reason a 23-4 vote was put aside for so long. The dubious exception for minors adds to the 1/4 bad flavor. Finally, as discussed below, there is the questionable limit as to locale of sale.

Abortion politics affect contraception policy, including ill-advised "abstinence education," which a 60 Minutes report and a lot more have shown to be counterproductive. And, constitutionally dubious, including when involving publicly financed religious teaching. It is especially dubious because of Griswold v. Connecticut, which covers teens too per Carey v. Population Services International. Such rulings hold there is a constitutional right of privacy which involves use and purchase of contraceptives without being forced to deal with unreasonable regulations.

And, though Roe v. Wade reminds us that "contraception" is most likely best viewed as a process, overall this includes techniques that might work after fertilization overall.* Thus, IUDs were one type of contraceptives used and protected in the 1960s, even though it might involve blocking implantation of a fertilized egg. Plan B is even more hazy: it is not always clear exactly how it blocks pregnancy: it might stop fertilization or in some cases implantation. Thus, by a strict reading (if one that twists general understanding of the terms at hand) it might be deemed an "abortion pill." Abortion is legal though.

Plan B is often seen as an "emergency contraception," used when other means cannot be used or perhaps fail in some way. Thus, it is particularly used in cases of rape, but other scenarios can be imagined: broken condoms, misuse of other methods, or generally, sex without protection. In the real world, this happens a decent amount of time. Carey et. al. rejects a scenario in which "pregnancy and the birth of an unwanted child [or the physical and psychological dangers of an abortion] [is used] as punishment for fornication." [First bracket in original.]

They also doubted that bans would "substantially discourage early sexual behavior. Justice Stevens noted separately:

Common sense indicates that many young people will engage in sexual activity regardless of what the New York Legislature does; and further, that the incidence of venereal disease and premarital pregnancy is affected by the availability or unavailability of contraceptives. Although young persons theoretically may avoid those harms by practicing total abstention, inevitably many will not. ... In essence, therefore, the statute is defended as a form of propaganda, rather than a regulation of behavior. Although the State may properly perform a teaching function, it seems to me that an attempt to persuade by inflicting harm on the listener is an unacceptable means of conveying a message that is otherwise legitimate.

One might argue that the law here is not a total ban, but one that requires minors to have a prescription. But, Carey dealt with "nonprescription contraceptives" and noted that: "as applies to nonhazardous contraceptives, [the law] bears no relation to the State's interest in protecting health." Plan B is such a "nonprescription contraceptive" generally. The question then becomes if there is something special that justifies prescribing it to minors. The ruling was particularly concerned with arbitrary nature of doctor control while Justice Powell noted that many under eighteen are married or perhaps was given permission by their parents.

Also relevant is this statement: "Limiting the distribution of nonprescription contraceptives to licensed pharmacists clearly imposes a significant burden on the right of the individuals to use contraceptives if they choose to do so." The news story linked below notes: "Today, the U.S. Food and Drug Administration agreed to make Plan B available without a prescription, but only for women 18 and older and only behind the pharmacy counter." This would apply to adults. Why is a non-prescription time sensitive item like this restricted thusly?

The Supremes struck down the New York regulation at hand. Thus, I think there is a reasonable constitutional claim against this regulation. As noted, there is a lawsuit ongoing underlining that delays were not motivated by health concerns, which is the mandate of the FDA. Political motivated. It is not the Morality and Drugs Agency. Such litigation in part is likely to show the unreasonable nature of the limitation on minors, including those 16-17, and if anything more likely to need such drugs than many adults. The time lag in obtaining a prescription is especially troubling when you are dealing with a substance that must be taken within seventy-two hours, the quicker the better.

As Justice Stevens notes, the government cannot harm its citizens purely to send a message. This includes cases when the alleged reasons turn out to be fictional in reality. But, this bunch creates their own reality. This might be so, but they are not allowed to create their own constitutional universe. Darn if they try though.

Still, better late than never. No big props deserved for waiting so long to do what should be par for the course, but still it's a good thing overall. Nonetheless, as usual, it comes with problems. Par for the course these days.

---

* A theme that still holds true; note also the mention of "morning after pills":

"...the Church who would recognize the existence of life from [p161] the moment of conception. [n61] The latter is now, of course, the official belief of the Catholic Church. As one brief amicus discloses, this is a view strongly held by many non-Catholics as well, and by many physicians. Substantial problems for precise definition of this view are posed, however, by new embryological data that purport to indicate that conception is a 'process' over time, rather than an event, and by new medical techniques such as menstrual extraction, the 'morning-after' pill, implantation of embryos, artificial insemination, and even artificial wombs."

Crack/Powder Cocaine Penalties

And Also: The muckraking NY AG is running for governor, and should win given his lackluster competition, so his job needs to be filled. The choices leave something to be desired, though it helped when Andrew Cuomo decided one early debate was enough, not showing up for the one Thursday or others upcoming. I complained when Clinton refused to debate Tasini, and this is more serious -- Cuomo is no clear-cut front runner, nor an incumbent. If he cannot deign to show up so voters can get a better judge of his mettle close to the primary, why should we vote for him? Because he is sooo much better than Mark Green. Don't think so.

The extraordinary severity of the imposed penalties and the troubling racial patterns of enforcement give rise to a special concern about the fairness of charging practices for crack offenses.

-- Justice Stevens, dissenting opinion

Slate had an article a few days ago on some attempts in Congress to reduce the disparity between the penalties for powder and crack cocaine. It is not out of the realm of possibility that even this Congress could decide to do something like this, since it recently loosened its strict rules respecting refusing student aid to those found guilty of drug offenses. Not that we should hold our breath -- drugs lead to the usual knee-jerk reactions, the drug "war" not too much different than the "war on terror," fighting in both cases often sharing similar ill-advised strategies.* And, the almost religious nature of the fights -- talk about jihads! -- only underlines the problems with loosening up the policies.

It is useful to note, however, that the reforms would not necessarily equalize the penalties. This is important since many of the comments in reply focused upon the racial implications of the penalties. Basically, the implication is that the only reason why there is a 100-1 ratio between penalties (one gram of crack equals one hundred grams of powder for sentencing purposes) was the color of the accused's skin. Putting aside the stronger argument that the size of the disparity was influenced by racial factors, it must be noted that the two are not the same. Crack is particularly dangerous because of its potency and compactness, more so than powder cocaine. Thus, when the guidelines were drawn, various black politicians and leaders supported them.

Such people grew less supportive over time; while others were wary from the get go. Drug laws simply are not equally enforced. This is not totally a question of racism -- as with prostitution, targeting sales over possession as well as high crime areas (again, not something residents are necessarily against) leads to inequitable results. Thus, women are generally targeted much less than their male johns. [I put aside the fact many prostitutes are men, often transsexuals.] And, only certain types at that -- more high class "whores" are less likely to be targeted. This "quasi-legal" industry is quite lucrative and non-enforcement basically decreases respect for strong policies against prostitution generally. People rightly see a lot of hypocrisy -- but not total hypocrisy. There are rational lines being drawn here, up to a point. Thus, the low rent prostitution more often targeted also might be a bigger public health threat.

All the same, the net result is rather inequitable. Such is also the case here as suggested by a lawsuit brought that led to the U.S. v. Armstrong ruling, which put a very high bar in proving discriminatory intent. Justice Stevens wrote the lone dissent, a warning bell. This is par for the course: the Supremes rejected a ruling pointing to the racial inequities in the death penalty and refused (this time without dissent) to recognize the problems with pretextual traffic stops (cars stopped for "legitimate" reasons, but in practice only "certain people" are stopped for such reasons). Though there are various exceptions, harkening back to Yick Wo v. Hopkins (Chinese laundries, 1886), the Supreme Court is wary of relying on disparate impact unless compelled by legislation (voting rights, employee discrimination). And, there is the infamous "toss grandma out of public housing if sonny used drugs even without her knowing about it" unanimous ruling.

The result has an ostrich head in the sand quality. The government has an obligation to provide equal protection of the law, and traditionally violated this demand in numerous ways. When it acts in such a way that certain groups, especially those traditionally discriminated against, are particularly burdened, warning bells should be set off. It is not necessarily illegitimate, but quite often it is. The message alone is problematic -- criminal justice is often as much symbolic as anything else. But, it is more -- if one group is punished significantly more than the other -- even (as facts suggest) when they do the same thing (here use crack) or take part in a behavior not that much worse (another form of illegal cocaine use) -- it is not equal protection of the laws. Strategically and constitutionally, this leads to problems. And, it shows up in various types of drug cases. Resulting in a "war on some drugs" or rather "some drug users."

[To look at the bigger picture, criminalization of marijuana underlines the point. Is it really that much more dangerous, if more dangerous at all, than alcohol and tobacco? Ditto its medical use and even cultivation of hemp products. Why was federal prohibition of one -- with much opposition to such invasion of "private" liberties and state discretion -- only deemed legitimate via a much maligned constitutional amendment? Forces of Habit: Drugs and The Making of The Modern World by David T. Courtwright could help you out there. Interesting book ... short too.]

Thus, the U.S. Sentencing Commission suggested Congress should equalize the punishments for the two substances, even though they in a vacuum are not equally dangerous. The reason was largely how the laws were carried out. Drug policy should recognize such real world effects. Congress rejected the advice. Clinton, on his way out (weenie), suggested the same thing. Ditto. Now, a few members of Congress are revisiting the question. Punishments for drugs are generally overall too high -- if enforced, powder cocaine laws are not slaps on the wrist. I'm no big fan of criminalization overall, though less vocal when things like crack are involved. But, severely reducing the disparity would be a good start, perhaps just one aspect of a realistic drug policy.

Well, dare to dream.

---

* C-SPAN showed some campaign advertisements, including one by the RNC. It underlined that reality will not always cause any change in this area. Thus, the RNC suggests we should not vote for Democrats because they oppose interrogating terrorist suspects or listening in on their conversations. This is a result of apparent learning disabilities (connected to earlier drug use?) in which opposing torture/mistreatment or breaking FISA/constitutional demands in the promotion of these ends is understood to mean we oppose them totally.

"Dems: Yield Not To Temptation"

And Also: And, then there were eight. Planets. Recently, I saw the usual suspect use the term "islamofascists" to justify sneering at the "judge going wild" (tossing in various references to "dudes" in the process for some reason) ruling as well as even Congress stepping in. The word basically means "bad Muslims" (followers of a President who doesn't know the meaning of the word "strategy" are not necessary known for exactitude), but has a certain inexact nature that poisons the discourse overall as noted here. And, finally Plan B ... 3/4 a good thing.

The value of a good editorial/opinion piece is that it expresses general sentiments on a particular topic in a useful way, be it negative or positive. This allows one to roll it around in one's head, considering and debating the basic principles involved. Since this piece serves some of these purposes, including reflecting the views of a core group of opinion makers, I decided to comment on it with some detail. [H/t]

Robert Reich is professor of public policy at the Richard and Rhoda Goldman School of Public Policy at the University of California, Berkeley. He was secretary of labor in the Clinton administration.

Establishment Clintonian Democrat. This is supposed to show how "liberal" he is, if we move the bar to the Right given recent political control. In fact, Clinton was a mixed bag, various trouble spots showing up under his watch. [Welfare "reform," "anti-terrorist" laws that cover much more ground, faith based initiatives, troubling amounts of money in politics, image politics, DLC politics, and "free" trade without proper limits.]

He says the "odds are" that the Dems will win the House. This is a bit troubling, since Reich was out there assuring us that he just plain knew who the Dems would pick as VP in 2004. Hint: it wasn't John Edwards. Anyway, Reich also is a weenie, a member of the "let's all be nice and above the fray" ... out damn spot!

You'll be sorely tempted to showcase the Bush administration in all its lurid awfulness. Imagine an endless parade of witnesses offering shocking details of Abu Ghraib, Guantanamo, torture camps, payoffs to Halliburton, Defense Department usurpations, Iraq’s descent into civil war, and other cover-ups, deceptions, data manipulations, suppressions of science, crass incompetencies, and outright corruption. Out of all of these hearings would come a bill of particulars so damning that every 2008 Democratic candidate running for everything from Indianapolis City Council to president will be swept into office on a riptide of public outrage.

Yes, you will be tempted to do your job ... providing oversight, including when determining the proper contours of funding, executive discretion per legislation, and so forth. The implication that this necessarily includes impeachment proceedings is not quite true. He puts forth basically a scary stereotypical scenario, helping Republican talking points. Another "reasonable" Democrat that gives that word a bad name.

After all, didn't House Republicans during the Clinton years wreak all the damage they could even when there wasn't much to complain about? Recall Dan Burton, the Indiana Republican who, while chairman of the House Government Reform Committee, issued truckloads of White House subpoenas along with a sulphurous geyser of unsupported accusations. Why shouldn't Henry Waxman, who will fill the same shoes, give as good as the Clinton White House got?

"Give as good" means to actually investigation based on supported accusations?

Warning: Resist all such temptation,

You won’t be credible. The public would see the investigations and hearings as partisan wrangling. They might even cause the public to question what it already knows, allowing Republicans to argue it was all conjured up by partisan zealots from the start.

Sure. Why should the public, who put you in power in part because they are tired of the crap going on now, expect you to actually investigate stuff? That would be weird.

You won’t get any new information anyway. Your subpoena power would have no effect on this White House. You’d end up fighting in federal courts for the whole two years. Besides, there’s enough dirt out there already to sink any administration. Although cowed at the start of the administration, the mainstream media have done a fairly good job since.

Sure, when the terrorist czar came in front of Congress and admitted that President Bush silenced an investigation of the NSA warrants, it was of no value. When Congress actually asked for materials, such as memos involving treating detainees, none came out. And, anyway, the MSM is doing a "fairly good" job. More or less. Give or take.

Why should Congress, especially one that would have be elected out of anger and despair at the current situation, do its job? It might seem ... partisan. Wah wah! He's scared even before they get there. Shades of Kenny Rogers at Yankee Stadium all over again.

Moreover, Bush is the wrong target. His popularity could hardly be lower than it is already, which means 2008 Republican candidates in all but the reddest of red states will distance themselves from this White House.

The target would not be Bush alone but loads of aspects of his administration.

Finally, you and your colleagues have spent the last six years whining and complaining. That was understandable.

"Whining?" Is this what it is when Conyers investigates and determines there is repeated examples of how BushCo broke the law? How he lied us into war? It's "whining?" Get lost, you f-ing schmuck.

Here’s a better way to go. Use the two years instead to lay the groundwork for a new Democratic agenda. Bring in expert witnesses. Put new ideas on the table. Frame the central issues boldly. Don’t get caught up in arid policy-wonkdom.

You know, like him. After all, it's not like you can investigate and put new ideas on the table. And, hey, what's two years of the Bush Administration continuing to f-up the nation? He's unpopular, right? Of course, he was unpopular in 2004 ... just popular enough to retain power. BTW, not noted, is that if the Dems controlled the House, the Republicans might very well control the Senate with a two or three vote margin. Narrow enough that the Dems might very well be able to get something out of the Congress, though Bush could very well just veto it.

And most important, be positive. Bush’s shameful record is plain. Start the new Democratic record. Help America dream again.

Be nice! Let them walk all over you! BTW, "dreaming" imho would include Congress serving as a strong check on executive overreaching. Go away, Rob.

"benefit of all laws and proceedings for the security of person and property"

And Also: Mets had a good day -- Glavine okay, Valentin back (pinch hitting), Mota pitched a good inning, OF Shawn Green (for the Jewish presence) picked up, and they came back from 7-1 down (two home runs from Pujols) to win it via a HR in the bottom of the ninth. Possible playoff preview? Oh, and Bill Clinton was at the stadium. Castro had a setback, but overall, not a bad day. Props to Chicago as well for their foie gras ban.

Not to go into overkill, but a few more words on the NSA ruling.

[I read Ann Althouse's NYT editorial sneering at the ruling after I wrote this. GG is on the case, and underlines how pathetic the outing is. What is appalling though is that it was published as a sort of "conservative" p.o.v. on the editorial page of the NYT. Now, the editorial content on the page leaves something to be desired overall (six more months, Tom?), but people expect a certain sort of cachet there all the same. This sort of thing corrupts the public discourse to no end, and the paper itself deserves some of the blame.]

Judge Posner was upset that the Supreme Court had an "18th Century" mentality about current problems. Well, no originalist he, apparently. He was no big fan of Justice Breyer's book, but they both have a present day reality feel for things, I guess. Still, one of them (guess who) seems to be still loyal to Marbury v. Madison.

The ruling has a key section discussing how certain executive actions are "political," but others that touch upon individual rights are rightly the jurisdiction of the judiciary. And, various opinions of that era suggest this includes those touching upon foreign affairs and military matters. This included conflicts arising from the "quasi-war" with France, and following the will of the executive over the law of the land respecting national security matters.*

The book on the Guarantee Clause (side panel) referenced a few cases from the civil rights era that also seem relevant here. One concerned stopping interference with a school board's attempt to obey Brown. It suggests that those who say Judge Diggs-Taylor should have solely relied on statutory grounds (FISA) might have missed the point. Basically, the plaintiffs had the constitutional right to be free from invasion via execution action that breached national laws clearly in place in part to protect them.

FISA was not only a separation of powers issue; it was clearly in place to help the people in their "right ... to be secure in their persons, houses, papers, and effects." Thus, the people have a "privilege and immunity" against invasion. To cite the ruling:

Plaintiffs are under a duty to obey the Constitution. Const. Art. VI, cl. 2. They are bound by oath or affirmation to support it and are mindful of their obligation. It follows as a necessary corollary that they have a federal right to be free from direct and deliberate interference with the performance of the constitutionally imposed duty. The right arises by necessary implication from the imposition of the duty as clearly as though it had been specifically stated in the Constitution. ... The existence of a Constitutional duty presupposes a correlative Constitutional right in the person for whom the duty is to be exercised.

-- Brewer v. Hoxie School District (5th Cir. 1956)

FISA sets forth a "duty" with clear constitutional overtones partially for the purpose of protection certain persons (being monitored etc.). The theme also arises as far back as the Slaughterhouse Cases, which narrowly defined Fourteenth Amendment privileges and immunities of citizenship but did list among them the protection of national laws, including treaties. Laws that literally set up "privileges" that the government has some flexibility to "prescribe for the general good of the whole," but are in place to secure the liberties of national citizens (due process and equal protections in place to guard against arbitrary invasions of the rights of lawful residential aliens) all the same.

It seems ill-advised not to focus on the invasion of rights of citizens, which the focus on FISA seems to suggest. Clearly, the critics still would focus somewhat on individual rights -- they had to have standing somehow! But, besides being unnecessarily narrow (it is not like the judge did not bring up the FISA issue**), it is so in such a way that the general public is not really the focus. It becomes some academic debate over separation of powers and such. That is, almost "political" in nature. Shall we not also refer to rights "to full and equal benefit of all laws and proceedings for the security of person and property?"

To toss something in, I read an interesting essay comparing British national security laws with our own. The theme was not necessarily that we should just adopt them. It was that in practice, they arguably are more protective to civil liberties than our own. Thus, we might just learn something from them. One thinks of the criticism of our media -- no First Amendment, but often it seems European news sources are more informative on issues of the day than our own. And, though we have no parliamentary system, it seems that way sometimes, without the added safeguards (question time, more opportunity to change the government) of the Brits.

I guess that requiring President D. to answer questions can be a bad thing all the same. Perhaps, it is a national security issue ... again not by the letter of the law, just how it is carried out. Seriously, that sort of thing depresses (toss in anger and black humor, depending on my mood) me to no end ... clearly people have power for any number of reasons, competence not necessary one of them.

---

* Thus, the judge here quoted an anti-communist era ruling by CJ Warren:

Implicit in the term 'national defense' is the notion of defending those values and ideas which set this Nation apart. . . . It would indeed be ironic if, in the name of national defense, we would sanction the subversion of . . . those liberties . . . which makes the defense of the Nation worthwhile.

The comparison is for some reason not made too often, but is not that era comparable to this one, including the concern for grave and numerous domestic threats working to overthrow our government and laws? In fact, FISA was passed because of excesses of the period.

** For example: "Both statutes have made abundantly clear that prior warrants must be obtained from the FISA court for such surveillance, with limited exceptions, none of which are here even raised as applicable." She just covered all the bases, which is actually what she should have done:

The AUMF resolution, if indeed it is construed as replacing FISA, gives no support to Defendants here. Even if that Resolution superseded all other statutory law, Defendants have violated the Constitutional rights of their citizens including the First Amendment, Fourth Amendment, and the Separation of Powers doctrine.

Judge Posner Tries To Save Us Mere Mortals Again

And Also: A fill-in will pitch for the Yanks tonight, since Mussina is ailing. The Yanks have had a hard time finding credible replacements starters, except for last year when they found lightening in a bottle (it diffused this year) in Chacon and Small. Meanwhile, the Mets repeatedly -- mostly fairly well (at least in the short term) -- had to do it. If Glavine will have to be temporarily replaced, they will have had thirteen starters. It is impressive that they managed to get so much out of such people.

Latest, this is why people find Lieberman distasteful, tidbit:

So, for the record, the bidding looks like this. Way back in October of 2003, Lieberman said if he were the guy in the Oval Office he'd can Rummy (different than calling on Bush to do so, of course, which is more forceful, and not in keeping with the deferential war time mores we're admonished to follow). Then, after the massive debacle of Abu Ghraib, and some seven months after this interview, Lieberman sees it fit to pen an op-ed in the WSJ urging Rummy not be sacked--lest we "delight foreign and domestic opponents". And now fast-forward to these heady times rife with challenges from the likes of Ned Lamont, and it's OK again, I guess, to risk delighting our foreign foes with calls for Rummy to go. Rather on the lame side, I'm afraid.

Meanwhile, Judge Posner is at it again. I dealt with this guy before, including criticizing his stance on the 911 Commission. Online, I know someone who had to deal directly with him, and finds him distasteful, if admittedly quite skilled at what he does. She would also agree, I reckon, that he is an elitist ass a bit too often as well. Skillful assholery leaves something to be desired.

Anyway, his latest basically finds our republican institutions, including judicial review, not quite up to snuff. Judges, however, can step in to save us from ourselves ala Bush v. Gore (ruling badly reasoned, but pragmatically useful). Yeah, I find this as distasteful as the oh so passionate tories who find it appropriate to give the President limitless power, even when (push comes to shove) they admit he is breaking statutory law. Such trifles must be put aside to fight the war on terror though.

[Glenn Greenwald, linked below, cites Orin Kerr. Kerr is what might be called a reasonable conservative leaning sort with Fourth Amendment credentials. At Volokh Conspiracy, he repeatedly notes that the executive's NSA arguments are "weak," but just cannot firmly admit they are breaking the law. VC overall is a mixed bag with some good analysis, but at times has a taint of wanting to leave their options open, as if they hope for a federal judgeship or something.]

This crowd must have love the McCarthy Era ... they would have been with the "Impeach Warren" brigade. Posner believes it is unfortunate that things are not more efficiently run by "experts," though as a comment to the linked post notes, it is not like the President et. al. is one. Does he mean like the legal "experts" that have criticized Judge Taylor's ruling? Those who leave a lot to be desired, even if many think they should be relied upon. Why trust a long term sitting judge, right?

[Professional courtesy and so forth leads GG to go somewhat easy on Kerr, but Kerr's latest really comes off as rather lame, while comments at various points offer a much better understanding of rules of evidence and so forth. For instance, Kerr had to be clued in respecting the fact that the government really didn't offer a good defense, leading the judge not to have any obligation to basically assume it did and do their work for them. (Anyway, he admits that he really hasn't spent too much time on the case -- this doesn't stop criticism, which is a law professor's job, admittedly.)

Is this really so hard to imagine? Thus, in Roe v. Wade, the fact abortion prohibition might be defended on morals grounds is put aside basically because it was not raised by the government. Many other examples can be noted in which judges only cover ground raised by advocates. Elsewhere, Laurence Tribe wonders why the judge focuses on First Amendment issues. The plaintiffs clearly raised them as suggested by the group bringing the suit: academics, members of the press, rights lawyers, and so forth. I again am amazed at how slanted the coverage is on this case. So very biased, shoddily so.]

What does she know that some whiny legal "experts" don't know better? Other outdated "18th Century" institutions we can do away with: the jury, voters, and perhaps Posner. Isn't Toryism outdated by now?

---

Meanwhile, NY September primaries are coming up. Tasini on Clinton's understandable failure to debate him can be found here. Some mechanism should be available to put some pressure on incumbents to debate serious primary challengers. My local state senator has this stupid campaign slogan that suggests he "works harder" on campaign banners. There are many real working sorts in my district that might find fault with that. My local assemblywoman -- who got the job last election mostly by nepotism (she's a member of a local pol family) -- has did a bit to get some local events to the community.

Signs of my local congressman is much less evident, though I did see his face a couple times in the news during the last few years.

Do the Red Sox WANT to Lose?

The Yanks radio announcers repeatedly gave the Red Sox's path to victory. Schilling goes seven. Red Sox have lead because Mussina is iffy these days. Papelbon, rested, goes two. Red Sox hope chubby wins Monday afternoon, giving them a 3-2 split. Game finished under four hours. Meanwhile, the Yanks are growing mustaches like their new back-up catcher, Sal Fasano. More "Sal's pals," I guess.

Though a rain delay made it another long night, the road to victory was there. 5-3 lead in the seventh. Honestly, you expected a bit more from Schilling, but it would do. So, what do they do? Do they bring in Papelbon in to close the game? Well ... sorta. First, they let their tired/underwhelming relief arms load the bases with no one out. Then, they bring him in. He is remarkable. Gives up a sacrifice fly though.

[When asked, the manager said he wanted to save Papelbon for the ninth, so that he could pitch on Monday. Yeah, that worked out well. The team lost three games in a row; Papelbon was rested. The Yanks scored repeatedly off the bullpen, including a seven run seventh. The term "no brainer" is in place just for these sorts of situations. There was no save situation on Monday ... though a run was given up by wild pitch, it was in the eighth with the Yanks ahead 1-0, so Papelbon would not have been pitching anyway. Surely not given the decision on Sunday.]

Still, it's 5-4. Looks like the baseball gods let it go. This is so even when the Yanks get a double with a passed ball to make it a man on third with no one out. Two strikeouts. The promise land! But, they are harsh taskmasters, who don't like stupidity. So, Jeter hits a single. 5-5.*

But, wait! Rivera gives up a double via a bad hop! No ... he catches them at third to foil a bunt attempt. But, wait! Passed ball puts the guy on third anyway. Still, he is Mo. What you can do, I can do better. Loads bases. Two strike outs. Tenth inning. Triple AAA Boston relief time.

[Toss in an important, if less impressive, easy bottom of the eighth, these were nailbiting innings that underline the best of grand match-ups. And, showed the mettle of both closers, Papelbon especially impressive given this is his rookie year as the closer. Earlier in the day, El Duque had a no one out, second/third situation, nursing a 1-0 lead against an ace. Glavine might be out for an unknown period, and the Cards/Phillies are up next. So, it was good to win the game. And, he came through. He even got on base twice, once via an error, and stole third. But, there was more impressive times to come.]

The end was quick. Two home runs. 8-5. Still ... Ortiz is up with man on first. If he could get on ... Not to be. Well, many left Fenway to catch the last train home. So they didn't have to see a loss [sports.espn.go.com] even worse than the massacres of the last few days.

Many probably imagined it though. It was that sort of weekend.

[On a passed ball, the Yanks won 2-1 today, sweeping the five game series. The Yanks basically played their B team, Wells the hard luck loser when an inherited run scored. Final: NY was 10 of 10 this weekend. (Yanks 5, Mets 3, Giants/Jets won).]

---

* In the bottom of the ninth, A-rod (the DH) went to third base, so Mariano became a hitter -- the ESPN box score had Abreu playing at third at the start of the inning, before a pitch was thrown. But, I saw that part of the game on ESPN, and no mention was made of this. Ditto the local box score. The local paper had it right: Bernie pinch hit and took the ninth slot, replacing Abreu in outfield. Mariano took Abreu's slot in the line-up.

So, a little error. Since I make a decent many of them, I'm not here to judge, but to nitpick.

Too Much Lieberman?

And Also: Life is not always fair. The death of Cliff Floyd's sister, a mom about twenty one with two kids, of cancer suggests the point. Meanwhile, the team just picked up Piazza's former nemesis, Guillermo Mota and cash for a player to be named. So he's cheap, but one wonders how much he has to offer. The Red Sox closer had a high stakes bases loaded with no one out moment and came out with the lead. And, with no one out and a man on third ... not quite.

During a rain delay, the radio station had some news, including some of the latest Sen. Lieberman soundbites. The whole thing aggravated me, since it basically was sanctimonious b.s. I don't like the former, and the latter underlines how JL is a hypocrite. For instance, his talking point is basically that we cannot cut and run, even goshdarnit if it is the popular thing to do. If you try to oppose him, including in primaries, you are setting up an ill-advised single issue litmus test, one bad for the country to boot. Lieberman promotes himself as a national public servant, above single issue politics and divisions. And, a supporter of morality in public service.

The opposition is not on that one issue. [Litmus test: not serving as a Republican stooge ... staying loyal to the caucus overall ... being a Democrat.] And, he is twisting the true opposite sentiment. It is not just to take everyone home tomorrow. This is lying, breaking one of the ten commandments. It is not "moral," which he claims to be. Furthermore, and it has been noted that he used the same path to get his seat in the first place, Lieberman is for Lieberman. This includes dirty campaigning and smearing the opposition. Again, this is not very moral. Thus, the hypocrisy. Hypocrisy in the promotion of a good cause is problematic; hypocrisy in promotion of a bad one is even more so. Thus, it is a good thing to be against it.

How much? The fear is that Lieberman will be seen as the white whale, something that will blind people to the true battle -- winning Congress. Better him as an "independent Democrat" than a Republican Congress. It would be interesting if the Senate was tied -- since Lieberman would have won mainly from Republican votes, who would he vote with? The assumption is the Democrats. The situation really doesn't make this a slam dunk by any means. Anyway, how would Lieberman win? By basically stridently campaigning against the basic Democratic doctrine ... a strong opposition to Republicans (partisanship?), opposition to the Lieberman path on the war and certain other issues (mixture of church and state, weak on regulation of banking/insurance), and support of actual Democratic candidates. Finally, he divides party unity, which especially will be a problem in picking up key seats in Connecticut itself.

Lieberman serves as a national, FOX friendly, chain around the Democrats' neck. Simply put, it is not an either/or situation ... you can win the majority by opposing Lieberman, the oppose Lieberman and lose a chance for the majority in the process. The path to victory is a strong campaign that strikes at weaknesses of the Republican incumbents, more than one also a Lieberman problem. This is why national Republicans are supporting Lieberman -- they see his value. A core way to win also often will be respect for the people themselves, including their interests and concerns. "The people" especially here includes the Democratic Party. If the national party supports Lieberman, it is a big "FU" to the rank and file. This is what is wrong with the Republicans in many cases -- power and concern for the base over public well being. Want to join them?

Surely, he is but one candidate. The national nature of his campaign plus the fact he causes problems locally (and perhaps further, given some of his peeps in the party will campaign for him, dividing things further) suggests the Lieberman race is not just one of many. But, sure, there are a lot of other things to worry about. Unlike the proverbial stupid bimbo, we can chew gum and walk at the same time. Likewise, whining about overindulgence here is a bit misguided, especially when other fish can be fried. For instance, what about all those safe seats (like Clinton or the opponent of that joke candidate, Katherine Harris) with huge campaign chests -- wouldn't it be better to spend such money and resources elsewhere? And, are we really spending too much time on Lieberman?

I don't think so. Firedoglake is basically a pro-Lamont blog, sort of the unofficial Lamont blog. But, others concerned with politics focus on many candidates, especially those like Daily Kos. And, the Lamont race fits into the general themes: popular effort, fighting anti-progressive voices especially those iffy on core values that also sell well, and so forth. Anyway, Lieberman is a symbol for me of what is wrong with the party, what poisons it, and helps prevent it from doing what I want it to do. And, as a resident of New York, there is something of a local angle to boot.

Thus, I support Atrios over the Talking Points Memo member on this issue. See here for more on the problem with Lieberman, especially since overall it is an impressive blog.

Testing the Outer Limits

And Also: Sigh. Now, there are concerns about Glavine's shoulder or whatever. Unclear what exactly is wrong or how bad -- could be short term, or not. BTW, what is with those Nike icons on catcher's chest protectors? I'm tired of various commercials -- "enhancements," debt relief, love connections, and a few less annoying products but still irritating ads. Well, ads on catchers -- as if they are members of NASCAR or something -- is not any better. Meanwhile, I wonder if this will effect me ...

In the photograph, the model is shown rising out of a bubble bath, suds dripping from her body. Her tight panties and skimpy top are soaked and revealing. She gazes at the viewer, her face showing a wisp of a smile that seems to have been coaxed from off-camera.

-- Using Nearly Nude Pictures, Child Sex Sites Test Laws

The civil libertarian usefully examines the outer limits of respectability to help set forth his/her principles, which often are challenged in particularly tricky and troubling situations. Thus, they will not simply admit to saying that it is acceptable when the government goes after "lascivious exhibition" of minors, to quote one key ruling on this subject.

One that clearly will rise a good level of disgust, for just reason. The NYT article cited links up to one of the less upsetting tease websites, one that seems to favor glossy pictures of jailbait (mid-teens, who if they are over eighteen, don't look it) in sexy outfits. A Google search of the website led to mention of another, a more cheaply done affair that favors younger fare. The rather sad example of web design claims to be one for "child models," the usual dodge.

It is just plain tricky to target such things criminally. We can step back and see the various perils of the enterprise. First, generally speaking, there are still abuses when targeting adult materials. This is especially the case since really it should not be illegal for adults to view such materials, even if there is some chance (which can be regulated) minors might get a look. Surely, it should be deemed a constitutional right -- Lawrence v. Texas mixed with Stanley v. Georgia would do the trick -- to download to your computer. This is so even though computers allow the always possible harassment (or worse) of minors by pedophiles etc. to find new homes. Few things are costfree ... computer resources and online community possibilities have benefits that are worth the risks.

But, we are dealing with images of children here, even if the puritanism of the former effort makes people suspicious overall. This also is not even the issue of so-called "virtual" porn or clearly protected written works that involve sexual themes involving minors -- including some more explicit material one might find online, including in fantasy chat rooms. [This does raise difficulties, since minors sometimes enter such rooms, though many who claim to be are not ... some are governmental officials, many truly on official business.] Line drawing is still an issue. Thus, some teen novels have mature themes, including sex and drug use. And, there are honest attempts at photography that might be deemed risque.

Legit modeling, though problematic on various levels (as are junior miss beauty contests), is also acceptable. Clearly, some might find some sort of twisted sexual excitement from such works. But, targeting the mind is the path to thought control. And, we should be wary about targeting possession, at least if clearly not meant for commercial use (or bought) or pandered to others. "Pandering" is a questionable way to justify targeting adult material, but it is more legitimately used here. Still, anything tarred as "evil" can lead to problematic overreaching. Privacy has been threatened in the past for "legit" reasons such as sedition, treason, fighting drugs, and so on. All, in some fashion, are legitimate: for instance, there are limits to anti-governmental organizing -- those British sedition trials were in the day when there was real threats to the crown.

Line drawing is a tricky business all the same. Let's take the site linked by the NYT, which some readers might find criminal. It contains various glossy jailbait sorts of pictures that are not any worse than numerous ones in clothing advertisements or even magazines covering teen celebrities. The intent is key, but it always hard to target intent. This sort of "variable" illegality might work when dealing with clearly explicit materials such as those used to address molestation and the like (involving sexual acts etc.), but much more tricky here. How about the site I referenced that highlights girls closer to junior high? A similar problem, since the picture per se are not illegal. The quote from the NYT is probably something else -- a parent might legitimately have such a photograph, but a commercial website promoting them is something else.

[Such things also arise respecting federal pornography prosecutions. The national nature of the internet and child porn industry rightly leads to such federal efforts, much more than spending money to fight adult porn. Still, though recent Supreme Court rulings tempered the tendency, there have been a few rulings that struck down mere possession prosecutions. And, the power of the feds in various cases raises additional concerns.]

Thus, the multi-part test that includes the "lascivious exhibition" of minors requirement approaches the line we can draw. The fact that fully clothed teenagers might meet that test shows that any simple catch phrase will not do. "I know it when I see it" also will not pass fair procedure muster, but it will clearly be a judgment call. We also must be on guard against overreaching, such as one ruling that basically encourages private businesses to closely monitor all employee computer use. Individual suspicion and personal privacy matters, even when fighting clearly legitimate battles.*

And, especially given the broad nature of the term, sexuality simply cannot be criminalized when minors are involved -- though visual use of younger minors clearly can be limited in various ways. It was a troubling article, worth reading. But, the fact that much of the material covered is still legal suggests the complex issues involved. Something for both sides of the fence to keep in mind.

---

* Off topic, here is a very good discussion of some remarks by a general involving how he enjoys fighting, perhaps intemperate remarks that led to some controversy. Simply put, the military is a necessary part of our society, and their efforts should be honored. Wishing there was less need for its use, and better leadership involving such choices, notwithstanding.

This does not mean there has not been overreaching and abuse. In fact, those who were living through and remembered the war fought to declare our independence wrote in the founding documents that the civil was to be supreme to the military power. They knew the dangers, even if they grew out of necessary, and yes, honorable institutions.

Sports Update

And Also: One more thing on the NSA case. Put things in perspective. District court judges have tons of cases, many requiring fairly extensive opinions. Let's not even put the criticized district judge opinion next to other district court opinions -- the only way to truly fairly judge it. Put it next to many Supreme Court rulings. One would probably find it compares favorably. Since the Supremes have to write about six majority/plurality opinions each a year, are generally not too liberal, or nominated by Jimmy Carter (and generally not black or a woman), what is their problem?

The Mets are having a twenty year anniversary of the 1986 Championship today with many of the originals coming for the ceremony -- Keith H. and Ron Darling are on hand already since they provide game commentary. The team is comfortably ahead after a great road trip in early June combined with Braves/Phillies collapses, and a sweep of the Braves serving as the final nail in the coffin. Thus, they can bear various injuries, including a season ending one to their eighth inning guy (taxi accident) as well as more time off for Pedro and Cliff Floyd. The latest is Valentin, the comeback kid who settled in nicely at second base.

The Sanchez season ending injury lead to the loss of Xavier Nady, a likeable decent outfielder that suddenly is so popular now that he is gone, and the return of Roberto Hernadez. RH is getting up in age, but had a good year last season. The Mets would have taken him back, but the Pirates offered him more time. It is unclear how much he has left, but before the injury, many noted it would be nice to get him back as an additional arm in the pen. Some even suggested the Yanks could have used him. Suddenly, some are so upset at the trade, perhaps because the Yanks got Abreu and Lidle from the Phillies for nearly nothing ... except for that major salary dump. People sort of ignore that part.

The over ten game lead allowed the Mets to accept only winning one out of four vs. the Phillies, which amounts to but two games off a fifteen game lead (back up to fourteen after last night's win). The Yanks, though their recent acquisitions and steady play helped a lot, had less breathing room. Coming into the Boston series -- a five game affair with a double header mixed in -- they only had a game and a half lead. This is fairly predictable in recent years -- the Red Sox is close on the heels of the Yanks etc., a some big series is a deciding factor. Last year, it really went down to the wire.

Who knows about this year, but the last three games were all so predictable. The Yanks won all three, in decisive fashion, the seven run seventh last night (longest ninth inning game in MLB history -- nearly five hours ... breaking the AL record, which the Yanks made vs. the Orioles a few years back) basically clinching it. The team was down 10-7 at the time vs. a tough reliever. Not last night. And, today, Josh Beckett did not quite look like the ace that did the Yanks in during the 2003 World Series. Still, come to think of it, Andy Pettitte is having a tough time of it in Houston these days too. Thus, with two games left in the much hyped series, the Yanks lead now by four and a half games.

With Kansas City making things tough (swept Oakland yesterday, gave the Red Sox fits), the Red Sox will have a tough time regaining those games -- easy wins are harder to find in the AL these days. And, the Sox pitching is questionable, especially when one of their top three (if three are consistently good) play like they did today. The pen is a bit of a mess, the extended use this weekend plus the lack of off days not helping either. Finally, they did not pick up a vital leftie during the trading heyday of the last few weeks, not really doing anything of note even as lesser teams at least made a show of improving themselves.

It simply is hard to respect this team ... the dog that had its day in 2004. It just has "second place" written all over itself, and with the tough AL Central this year, that might just not be enough this year. Anyway, so there was two long games yesterday. How about the double header vs. the Tigers in the late 1990s (yeah, makes me sound old when I go into these nostalgia moments) with the first game going seventeen innings? The Yanks lost, but Irabu (remember him?) pitched a clean second game for the split.

The Red Sox, after losing 12-4 seemed to be on the path to do something similar, but when your starter tosses about 100 pitches to get eleven outs, things don't bode well. Get some sleep guys ... the next game isn't to tomorrow night. Oh, try to give up less than double digit walks. That sort of hurts your chances.

Update: Toss in two pre-season football games, NY/NJ is seven for seven [three Yanks, two Mets, Jets/Giants] so far this weekend. The second Mets game was started by a Pedro fill-in, who pitched pretty well until leg cramps in the sixth. RH came in and gave up his two inherited runners plus one of his own, making it 4-0. He did manage to get his one out and finish the inning. After finally getting a hit off the Rockies' starter, the Mets went wild in their half of the sixth with help from misplays and walks.

But, per a rule I never heard of before, the "pitcher of record" when the Mets went ahead did so badly that they gave the win to Heilman for pitching the seventh and eighth. I heard of something similar when determining who gets the win after a starter doesn't go five (though if he pitches well, perhaps because he really is a reliever who only could go three or four innnings, why not give him the win over some reliever who pitched an inning or two ... I guess technically a starter might get the win in such a situation). Still, I never saw it applied in this way.

Fair though.