Giles and the Nuances of Scalia

And Also: Good article in the NYT, one of several on the general subject, noting that "The United States and the European Union are nearing completion of an agreement allowing law enforcement and security agencies to obtain private information ... about people on the other side of the Atlantic Ocean." Seems some on that side wants some right to litigate violations, and not just "trust us." Wonder why.

We consider whether a defendant forfeits his Sixth Amendment right to confront a witness against him when a judge determines that a wrongful act by the defendant made the witness unavailable to testify at trial.

-- GILES v. CALIFORNIA

Heller wasn't the only ruling that Scalia wrote and used to focus on original understanding and old time English precedents. The other concerned statements admitted into a murder trial involving past comments of the person killed. This was held as inadmissible hearsay as such because (uh) she could not be cross-examined. Stevens and Breyer (with Kennedy this time) dissented here too. Souter wrote a concurrence,* which I wish he did in Heller, noting original understanding is only of limited relevance and clarity, but overall, the majority was right.

[It does bear noting that the majority here followed originalist history with precedent supporting it -- more completely than in Heller, surely.]

Some discussion of the latter point is being made at some interesting discussions over at Balkinization, where I felt compelled to submit my .02 in most cases. A respectful look at history and original understanding generally warrants such a perspective, one sadly ignored too often by simplistic reasoning on both sides. And, as compared to some at Volokh Conspiracy, I'm not as enthusiastic when both sides use history badly. The fact something looks "scholarly" only takes you so far.

The majority here noted that the sad situation here aside, "abridging the constitutional rights of criminal defendants is not in the State’s arsenal." Calling Justice Brennan. The majority, as noted by Souter, also had an interesting bit that channeled Scalia's pal Justice Ginsburg:

The domestic-violence context is, however, relevant for a separate reason. Acts of domestic violence often are intended to dissuade a victim from resorting to outside help, and include conduct designed to prevent testimony to police officers or cooperation in criminal prosecutions. Where such an abusive relationship culminates in murder, the evidence may support a finding that the crime expressed the intent to isolate the victim and to stop her from reporting abuse to the authorities or cooperating with a criminal prosecution—rendering her prior statements admissible under the forfeiture doctrine. Earlier abuse, or threats of abuse, intended to dissuade the victim from resorting to outside help would be highly relevant to this inquiry, as would evidence of ongoing criminal proceedings at which the victim would have been expected to testify.

It's good when such perspectives show up in court rulings. It also underlines that Scalia often is not as "clean" as some conservatives think. He sets forth a clear line here, but opens up a chance to make it more complicated. In Heller, he protects the right to gun ownership, but (reading like an advisory opinion) assures us a ton of regulation is allowed (and not only the ones he listed). And, he opposes the Court's punitive damage case law, but in the Exxon case served as the key vote (along with Thomas) to strike down the award because of some maritime exception Stevens and company noted was far from compelling.

Another term ends. Looking forward to my recent tradition of reading the Cato Supreme Court review around October.

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* He noted in part:

The contrast between the Court’s and Justice Breyer’s careful examinations of the historical record tells me that the early cases on the exception were not calibrated finely enough to answer the narrow question here.

The gun case was broader in scope, but the same thing, in a fashion, could have been said there.

Week Round-Up

Legal Round-Up: I ("Joe") provide some thoughts on the gun ruling here and here. BTC News etc. notes Obama supports giving states the power to execute rapists (and others). Glenn Greenwald notes the 8th Amendment isn't the only thing "unfailing Goodness" is iffy about, even if he is the best choice available. And, choice case title of the week: US v. 14.02 Acres of Land More or Less in Fresno County (see also, US v. 87.98 Acres of Land More or Less in the County of Merced) (eminent domain).

Baseball: The Mets are a tease this year -- sometimes they show signs of improvement, then they can't beat bad teams -- in fact, do horrible. The Padres are not that good without their aces, but the Mets get swept. But, the low point was two sad outings versus the dogs of baseball -- the Seattle Mariners.

There one win wasn't really anything to write home about ... they scored eight runs in under three, then proceeded to do absolutely nothing for the rest of the game. We survived without sweeping ... let's get out of here, and play the Yanks for four (one a split-stadium doubleheader). [After whipping them in Yankee stadium, they were whipped at Shea.] Still, there was a ray of sunshine -- the manager and Beltran responded when showed up by an umpire -- their power at times goes to their heads -- both being tossed.

Both were fined [a total of $900 ... seriously], but remarkably, the umpire himself was suspended a game for bumping into the Mets' manager. Apparently, his apology wasn't enough. Good job MLB.

Books: You Know Where To Find Me by Rachel Cohn is superior teen fare, concerning a rebel with lots of issues, the latest the suicide of one of her lifelines, her troubled (if on the outside, allegedly in better shape) cousin. We view things through the survivor's eyes, including her abuse of prescription drugs (apropos of a recent NYT article, they can be more dangerous than the illegal kind) and realization that she can rely on certain people more than she thought. And, what political buff can not like someone who cares deeply about D.C. statehood?! Choice bit -- when she is informed that her cousin didn't just peacefully leave this earth -- she choked on her own vomit, fairly typical in such suicides.

Congress: Addington and Yoo testified (we do things under affirmation/oath these days) today -- I caught some of it on WBAI. Addington came off as an asshole, Yoo as a loser playing dumb (though on his own, he loves to defend his p.o.v.), and congressional Dems (including Chairman Conyers) showed their distaste for both. Subchair Nadler, from a Manhattan district, also didn't take Yoo's exaggerated claims of privilege on face value, particularly demanding Yoo himself defend them, not just cite his former bosses.

Toss in Addington's pre-existing conditions, this is more of the same -- congressional oversight artificially limited by extreme executive claims and a weak response. Meanwhile, the few Republicans that showed up served the role of apologists. Addington sanctimonious started off saying that we should remember that everyone clearly is patriotic and cares about America. But, he took the scared straight path all the same: "No American should think that we're free, or that the war is over. Because that's wrong."

Actually, some of us still think we're free, and basic limits on executive discretion still exist.

Child Rape and the Supreme Court

Various interesting opinions today, but Kennedy's majority opinion against execution of those who rape a child is up there. This includes an extended discussion of the heinous nature of the crime, the (dubious) argument that Coker doesn't decide the question, the focus on the moral/mental well being of the child and the generally anti-death penalty flavor of the whole thing. An extended discussion by me (and a bit on the dissent) can be found here.

They broke the law -- let's enable them some more

Justice Department officials illegally used “political or ideological” factors in elite recruiting programs in recent years.

Oh? Will Barack support a bill legalizing their actions here too?

George Carlin (and Pacifica)

And Also: After a nice road trip, except for the former manager and coaches, the Mets come back to face the lowly Mariners. They lose 5-2 ... one earned run, four unearned. David Wright (he had a day off today, and the team did too ... losing 11-0) makes an error and then Santana gives up a grand slam to the opposing pitcher. Booby prize: said pitcher hurt his ankle after a wild pitch; forced exit after only 4.2 = no win.

I have to figure out which ones you couldn't and ever and it came down to seven but the list is open to amendment, and in fact, has been changed, uh, by now, ha, a lot of people pointed things out to me, and I noticed some myself. The original seven words were, shit, piss, fuck, cunt, cocksucker, mother-fucker, and tits. Those are the ones that will curve your spine, grow hair on your hands and (laughter) maybe, even bring us, God help us, peace without honor (laughter) um, and a bourbon. (laughter)

- George Carlin's Seven Dirty Words routine, qtd. by FCC v. PACIFICA FOUNDATION

Carlin recently died at the age of seventy-one, after surviving various health problems, and drug issues some time back as well. I think he probably would agree that it wasn't that bad of a time to go, though as an atheist, he would bring up God into it only in a joking fashion. Of course, I might think differently when I'm closer to that age. Get back to me.

Anyways, George Carlin was obviously a great name in comedy, a Lenny Bruce not forced to an early grave by the government and other demons. He was the first host of SNL. Had HBO specials from before most would think there was an HBO (the 1970s). He even popped up in a short-lived Fox series (I remember it -- not that good, but had some charm) and the Bill and Ted movies. But, stand-up was his thing. I never saw him in person and didn't quite take to his routines as a whole. The whole "stuff" thing, for instance.

Still, hearing some clips, there were clearly some gems. And, overall, I'm copacetic to his philosophy. A clear example of how humor is a prime tool in social commentary. I'm sure he nodding knowingly, with something of a wry expression, when finding out that the Supremes upheld the sanction of WBAI* for playing his routine in the day time hours. This includes the fact that the complaint came from a father listening with his teenage son -- the stand-in for token pain in the ass complaints everywhere.

The fact the opinion (by Justice Stevens, showing his flag burning dissent side) noted that the transcript "indicates frequent laughter from the audience." Or, that it denied the routine "satirized contemporary attitudes." And, its assurance that adults could obtain the routine elsewhere might be of dubious constitutional merit (free radio provides special benefits), but it did benefit his pay t.v. and stand-up gigs.**

Let him live on in wickedly funny truth tellers ... needed more now than ever.

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* My radio source for Amy Goodman/Democracy Now! and other programs. DN honored him today, playing an (edited) clip of the routine as well as other bits. [The transcript allows you to get a flavor of his style.]

** Justice Stewart dissented on statutory grounds. Brennan/Marshall had the substantive dissent, including (1) even in private, one chooses to listen to the radio and (2) some parents want their kids to experience this sort of thing. Anyways, it isn't sooo bad that the government can keep adults from listening to it because of fear of children being traumatized.

Powell/Blackmun concurred separately, not supporting Stevens' placing the routine (as compared to some weak-assed form of it) on a lower plane of protected speech. Stevens argued:

If there were any reason to believe that the Commission's characterization of the Carlin monologue as offensive could be traced to its political content - or even to the fact that it satirized contemporary attitudes about four-letter words - First Amendment protection might be required. But that is simply not this case. These words offend for the same reasons that obscenity offends. Their place in the hierarchy of First Amendment values was aptly sketched by Mr. Justice Murphy when he said: "[S]uch utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."

Such slight value, huh? That section only got the support of three justices. The focus on "the [dirty] words" instead of the overall context underlines the misguided nature of the ruling, and the point of Carlin's bit.

Army Wives and Get Smart

And Also: Glenn Greenwald's analysis yesterday on Obama's role in the FISA "compromise" included a cite of a great comment that reflects my sentiment too. Various comments on political events sound like they are by children, here split into two camps -- little boys who think mommy/daddy can do no wrong and teenagers who think they are total boobs, sometimes totally evil to boot. We all are like that sometimes, but hopefully, manage to think like adults too. Aren't we supposed to sneer at those without nuance?

The source book for the Lifetime series Army Wives is a good read in its own right, while being different from the series in various ways. The show's characters in some fashion are represented by real part counterparts in the book. As a member of a military family, both as daughter and eventually wife, the author clearly had a special perspective beyond her skills as a reporter. This surely helped some of the individuals involved to let her provide a quite intimate look at their lives. The real life events and characters, sometimes in striking ways (e.g., who was killed) of the book and show, however, are different. To be expected, but weird to see/read at times.

There was a few digs at real life people in Get Smart, including the something of a boob President reading to children, but the differences here involves the fictional source material. I was a fan of the television show, available to me in reruns, it being an enjoyably silly exercise. Something like this can be best portrayed in small increments, but there are enough movies (Naked Gun) that successfully follow the formula too to not limit ourselves to the short form. Still, it generally has been hard to translate television to good movies, though not out of some inability to do so.

At least, I don't think so. It is more out of laziness and bad decisions. For instance, The Fugitive generally was treated as a pretty good movie, but I did not really like it. The reason is really based on the television show, the source material not just another way to get material, but something you think about while watching. And, the point of the television series here was not a fixed mystery of who killed his wife, but the ongoing struggle of a man on the run, who place to place has little dramas while seeking the truth. This was not the point of the movie and the fact Tommy Lee Jones' character by the force of the actor became a story himself also was troubling.

The Brady Bunch Movie, on the other hand, was a loyal reflection of the show, even if it was translated in a tongue in cheek sort of way. Compare this to Mission Impossible -- the WHOLE point of the series was that a group of agents, admittedly one or two clearly the "star" of the show, worked together on a mission. The movies were about Tom Cruise. Yes, a movie can be judged on its merits as much as its loyalty to its source, but this rankles. Besides, the whole one man against a conspiracy or whatever (the original movie) bores me. A movie really about the team would be for me more interesting. After all, the Ocean's Eleven movies suggest some possibility of success here.

Anyways, what about Get Smart? Mixed loyalty to source material and mixed value of entertainment. I think the two to two and half (out of four, basically) type of ratings that were typical in my area tends to explain how I feel about the movie. The leads are generally well chosen (Alan Arkin is a great choice as the Chief) and making Maxwell Smart an expert analyst who dreams of being a field agent works okay. Still, the movie is not really funny enough (a few bits, including the dance scene, do work), including making Siegfried (the evil Russian) too serious. And, MS is expert in the field basically off the bat (strategy? fine ... weaponry? not so much), even vis-a-vis 99 at times.*

The reviews I read are on the money here -- the movie is not terrible, has some good points, but a bit strangely, works more as an action movie at times than as a comedy. In fact, the movie if anything is saved by a largely action packed final third (with some light moments too -- it's the best part of the movie by far), which might be somewhat telling. The movie probaby misses by more than "that much" (the movie could have used more of the original show's touches) and not only because I wanted it more like the show. It was like the show in various ways, but as a whole, not quite enjoyable entertainment.

And, just stretching a half hour show to three times that length (the good finale alone handles around 1/3 of that) is not an excuse.** IOW, something of a miss, though enough there to make it not a complete one. [The person I went with, however, enjoyed it as a whole, so clearly it has some fans, See also, various IMDB comments.]

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* On the show, 86 and 99 finally got together after about five seasons, give or take. This time, it took less than eighty six minutes, though explaining why Anne Hathaway looked so young by noting the older agent had plastic surgery was a nice touch. To the degree, this was standard plot fare, fine (though not a great judge of her professionalism for her to keep falling for partners), but, there was literally -- Roger Ebert probably nodded since the cliche is in the glossary of his movie guide (Tarzan lead Jane) -- moments where the two were running and Max led 99 -- how stupid is that?

** Movies as a whole do at times have only enough real good material for about an hour, often resulting in tedious filler. The best thing to do here is to make necessary plot material as painless as possible. Perhaps, this makes the old 1930s sort of sixty eight minute (in the days of double features and extended previews, like cartoons) a better sort of affair.

Who wants to spend $12 for that, though? Anyways, after a pleasant enough start, the film is hurt by a middle portion that is pretty lame. Laziness factors in here, probably -- a bit of effort and style makes even the pretty routine film wortwhile.

Don't "Compromise" Away Basic Fundamentals

Baseball: Not a great few days for the NL Central, including a sweep of the Cards by the Royals (they did give the Yanks a run for their money, a late game swoon stopping a possible three of four, but not a good team). Lou did not have a good return to Tampa Bay (having some first half), being swept. Neat trick -- blowing a lead in the third game by giving up four runs without getting an out ... two walks, two hit by pitches and a grand slam by the "relief." The starter was fine. Well, the Mets know a bit about that. Anyways, Cubs won today versus the other first place team in the city.

[Pelosi quote material added; again in lieu of consistent links, the usual suspects (see cites below) have discussed the matter and have good coverage and further links/info]

Given the grave threats that we face, our national security agencies must have the capability to gather intelligence and track down terrorists before they strike, while respecting the rule of law and the privacy and civil liberties of the American people. . .

After months of negotiation, the House today passed a compromise that, while far from perfect, is a marked improvement over last year's Protect America Act. . . It does, however, grant retroactive immunity, and I will work in the Senate to remove this provision so that we can seek full accountability for past offenses.

It is not all that I would want. But given the legitimate threats we face, providing effective intelligence collection tools with appropriate safeguards is too important to delay. So I support the compromise.

-- Sen. Obama (see, e.g., Glenn Greenwald/Salon)

As with taping a spot in support of a conservative Democrat (who waited to Obama won to endorse him) in the midst of a primary campaign against a liberal grassroots sort (shades of Lieberman vs. Lamont), this underlines the limitations of an Obama candidacy. We need not follow the path of some whiners and suggest that this means that everyone is the same, "I can't vote for him," and "prepare for a President McCain." Adults realize that candidates are flawed and races are about the overall comparison with their opponents.

Still, this does suggest why I didn't support him earlier. Obama has something of a radical message, but we cannot ignore that at the heart, he is a moderate. He plays it safe sometimes and wants to work within in the system. When the system is corrupt, this is a problem. Consider the very word "compromise." What exactly are we "compromising?" This is a piece with the habeas ruling -- the rule of law, civil liberties, the importance of a judicial check (including for discovery), executive overreaching and that some vague "whatever keeps us safe" standard isn't what our constitutional system is about.

What part of this should be "compromised" away? Glenn Greenwald, who is a good place to start, is right as well on the "bipartisan" point. What does that mean under our current system? A blanket Republican caucus (dissidents countable on one hand) plus enough Democratic enablers, not limited to "Blue Dogs." How fictional. The same thing really applies to the Blue Dogs. We are supposed to accept -- as if leadership is compelled by some simple majoritarian system to bring everything on to the floor -- that we must accept this sort of thing because the balance of power lies with Blue Dogs:

House Speaker Nancy Pelosi (D-CA), gave the bill a lukewarm endorsement, saying the bill many supported was "not an option."

She said the real decision was between this "compromise" bill and the one the Senate has passed, which offered even broader surveillance powers and more protection for telecom companies. "That is the comparison, the contrast, that we have to make today."

Are you kidding me? The people forcing this down the leadership's throats (Durbin, Reid, Pelosi [so she says] are ALL against it; admittedly, the majority leader in the House -- by his actions, not some of his words -- appears to want it) do belong to the Democratic Party, right? Party membership does mean something. Why should the tail wag the dog here? Oh well, I guess this too is "off the table." Not "as bad," but the first comment here does get to the flavor of my sentiments too. We have a long road ahead of us.

Al Franken (he won his primary for Senate) argued on Air America in '06 that control of Congress would be valuable because of subpoena power. And, the "truth commissions" on such matters as torture,* Plame, and so forth do matter. This is so even if we rely on Lieberman and other Bush Dogs to control Congress. It does rankle, however, that repeated instances of lawlessness leads to but strong words. Now, lawlessness will lead to immunity. Let us not get caught up with legalisms. This legitimizes it.

It's nice that Obama "will work" against the measure. My sarcasm suggests only up to a point.** And, blocks discovery of what exactly went on. Yes, Congress can (should) investigate too, but time has shown that litigation can often better serve this investigatory function. Ah, but Obama said he will investigate as well when he is President, and will offer serious oversight. This is fine and proper. Still, pardon me for being suspicious of executive power, whomever is in power. And, the ongoing litigation serves that role now. Finally, it reaffirms important basic principles that should not be compromised, surely not for imperfect promises of future action.

Obama's furtherance of the scare tactic meme that we live in dangerous times, so must compromise our liberties and trust the executive above and beyond what the law (FISA) and Constitution holds is also offensive in the extreme. It is fine that he qualifies it with nice words, but on some level they are just window dressing. He is willing -- showing little leadership in the process (he is wishing to be the titular head of the party) but stays quiet at the key moment -- to "compromise" basic principles. To promote the fiction that this is necessary for our safety -- is Russ Feingold and the over hundred members of the House against it not concerned for it?

More of a piece with him saying he didn't want to deprive the men in the field resources ... surely this is what is meant by not allowing Bush to have a blank check in Iraq, rather, extending his line of credit. [The guy he endorsed talked about not "cutting and running."] The two steps forward, one step back of this depresses me. Even more that this at times seems too optimistic.

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* See, Slate (one article noting the "patent illegality" of the treatment), Balkinization and other locales for the value of the current hearings. We might see Yoo testify. On that point, consider this appeal to authority in Scalia's (joined by the Chief Justice of the United States) habeas dissent:

Memorandum from Patrick F. Philbin and John C. Yoo, Deputy Assistant Attorneys General, Office of Legal Counsel, to William J. Haynes II, General Counsel, Dept. of Defense.

** In the real world, as with his late to the party opposition to the Iraq Occupation funding bill, this will be mostly token. As there, he was MIA at a key time, while the bill was being put together and the House Dems coming together to vote for it. As there, Obama claimed he needed time to read and examine it. Please. Don't insult my intelligence. Anyways, if he needed time, he used it unwisely. I'll take Sen. Feingold etc. over him as to the problems with the non-immunity aspects of the bill.

"Dignity" Writ Large vs. Scalia's Point of Dignity

And Also: The Mets are flawed enough (the number of bench players starting of late underlines the point) that fixing any one problem will not solve things. The buck must at least partially stop at the manager, so firing Randolph was defensible. Forcing him to fly cross-country to play (and win) a game and doing it at midnight, not so much. In fact, some closer problems aside (bullpen issues did add to some losses), the team actually played pretty well of late. Let's see what happens. Meanwhile, Randolph can feel a bit better knowing he in effect is getting a few million doing nothing for the next year plus.

When he feels that the Constitution guarantees it, Justice Scalia can be quite eloquent about upholding liberties, no matter how unpopular the litigants. This includes flag burners, alleged child molesters who want to confront their accusers, American citizens (as compared to alien) held as enemy combatants without redress to the courts and those whom "a state court found mentally competent to stand trial if represented by counsel but not mentally competent to conduct that trial himself" who wish all the same to go it alone.*

Seven justices allowed a state judge to disallow self-representation in such cases, but Scalia/Thomas argued otherwise. In part, this was a matter of individual dignity [citations removed]:

Rather, the dignity at issue is the supreme human dignity of being master of one’s fate rather than a ward of the State—the dignity of individual choice. The Sixth Amendment’s counsel clause should not be invoked to impair the exercise of [the defendant’s] free choice to dispense with the right for whatever else may be said of those who wrote the Bill of Rights, surely there can be no doubt that they understood the inestimable worth of free choice. Nine years later, when we wrote that the self-representation right served the dignity and autonomy of the accused, we explained in no uncertain terms that this meant according every defendant the right to his say in court. In particular, we said that individual dignity and autonomy barred standby counsel from participating in a manner that would to destroy the jury’s perception that the defendant is representing himself, and meant that the pro se defendant is entitled to preserve actual control over the case he chooses to present to the jury.

At one point, Scalia suggested that what was at issue here was a due process right. The Bill of Rights secures a right to counsel, but no express right to defend yourself. Thus, it was more of a matter of due process, fairness as understood by our traditions and experience. The Supremes, with his assent, earlier held that you do not have a right to defend yourself without a lawyer in appeals from your trial verdict. Again, there is no express mention of the point in the Constitution -- history and reason is used to determine that appeals are different. Scalia fears open-ended provisions that rely on the (arbitrary) judgement of judges, but even he sometimes must know it is a matter of degree.

Or, as Justice Harlan once noted: "having regard to what history teaches" is a core measure in determining the breadth of our constitutional rights. It is not only a matter of looking at specific liberties ("a series of isolated points"), but the overall nature of the system for which they are but that -- points of a whole. Such is necessary especially when due process, the Ninth Amendment and so forth suggest broad open-ended liberties and restraints on government. Respect for the text and history of the Constitution, his assumed guide, demands no less.

Thus, though Scalia references a certain specific liberty, his discussion has applications that go beyond this specific situation and serves as a general basis of fundamental liberties. And, his discussion of "the supreme human dignity of being master of one’s fate rather than a ward of the State" has shown up in just this fashion, though Scalia would be loathe to lend many of the cases much support. Thus, Scalia rejected recognition of an early (1923) case in which the Supremes held parents had a broad liberty to raise children as they feel proper, children not being "the mere creature of the State" akin to the authoritarian child-rearing practices counselled by ancient philosophers (and some current ones) like Plato.

Likewise, Scalia does not support a broad constitutional right to privacy and autonomy ("privacy" in this sense not being just seclusion) that recognizes, per former Reagan man Charles Fried:

What a person is, what he wants, the determination of his life plan, of his concept of the good, are the most intimate expressions of self-determination, and, by asserting a person's responsibility for the results of this self-determination, we give substance to the concept of liberty.

Scalia would respond all well and good, but the Constitution does not support an anti-democratic upholding of the broad contours of this sentiment via court action and limitations on the discretion of the legislatures. He ignores the lessons of history and over a century of precedent in the process. Scalia argues (ala Black) that the Breyer led majority here tries to get at the "spirit" of the text by ignoring its necessary implications. And, misses the right spirit in the process as well (see his debate over "dignity"). Thus, the courts attempt to seize more power than they have, while at times not adequately doing the job clearly demanded of it.

But, the majority has a good point -- the underlining waiver requires a degree of competence that very well might not exist in cases such as these. The majority is not trying -- though at times I think Breyer does do that [as shown by cites in this very opinion/dissent, he made some noises on the very issue of allowing competent individuals to refuse a lawyer] -- to supersede written limits in promotion of some felt golden mean. And, when it broadly respects dignity in ways Scalia opposes (even sneers at), ditto.

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* The case provides a citation of an old case respecting under what terms one can legitimately waive the right to an attorney. Of particular interest, per a recent blog post calling into question that competency of a single judge presiding over certain types of cases, was the dissents. They didn't think a legitimate waiver was in place and also questioned if a defendant could waive the right to jury in federal trials. The most liberal, Justice Murphy, noted:

The Constitution provides: 'The Trial of all Crimes, ... shall be by Jury; ....' (Article III, 2), and: 'In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, ...' (Amendment VI). Because of these provisions, the fundamental nature of jury trial, and its beneficial effects as a means of leavening justice with the spirit of the times, I do not concede that the right to a jury trial can be waived in criminal proceedings in the federal courts. Whatever may be the logic of the matter, there is a considerable practical difference between trial by eleven jurors, the situation in Patton v. United States, and trial to the court, and practicality is a sturdy guide to the preservation of Constitutional guaranties.

He did not carry the day, but I still think he has a point.

Weekend TV etc.

Not having HBO, I waited until the miniseries on John Adams (based on the book) was on DVD, though saw a few "extras" beforehand (some previews and such part of the freebies provided by one of the cable services). The miniseries is about nine hours, seven parts, and three DVDs. A coupon led to a reduced charged, but it would have made sense if an offer was made to supply the discount for all who rented all three together. And, time-wise, Blockbuster has a thing where you can hold items a week past the "due" date.

The rental was $12, still a lot cheaper than the $60 list price for the set. Good atmosphere, mostly lead performances (e.g., interesting head in clouds Jefferson), but probably bit off more than it could chew -- at some points, it was more like snapshots (if pretty good ones) of history. First few parts came off the best. On another front, Army Wives is somewhat based on real life* and the episode on Sunday was pretty good. But, we have another "can't have an abortion!" subplot, even having a bait and switch of sorts where you think she was about to have one. I am not abortion hungry, but it is a procedure millions have done, and it is simply misleading (with cultural/policy implications) to never show it.

Golf was also during the weekend, spilling over to today because of the need for a playoff. In fact, there was a further need for a sudden death round. Tiger Woods is still not over his injury, but managed to make the shots when he had to, including when he was down by a stroke after seventeen (I periodically checked the scores) today. The journeyman who played his latest patsy clearly couldn't quite step up to the plate, even when he only had to beat the guy in the eighteenth. Like an ace closer, TW did the job, which is impressive. It simply is not satisfying.

The guy does lose now and again, to prove his isn't a robot, but mainly just wins. This underlines his superior abilities, but for me personally I rather things be spread around.

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* The book by the same name (originally under a different one) concerns for women who look in various respects like the main characters, though the "army husband" is no show thus far. Differences are in place, not only of the more children variety. For instance, on the show, the surrogacy was secret. In real life, the woman did not just do it for the money -- she also felt a calling and was open about what she was doing.

But there is a commander's wife, soft-spoken wife whose son was abusive, and so forth in the book so far, just like on the show. A third the way through, it also is a good read -- in a fashion, like a novel.

Habeas Rulings: Happy Flag Day!

Security depends upon a sophisticated intelligence apparatus and the ability of our Armed Forces to act and interdict. There are further considerations, however. Security subsists, too, in fidelity to freedom's first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to separation of powers. ...

Our basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. Even when the United States acts outside its borders, its powers are not absolute and unlimited but are subject to such restrictions as are expressed in the Constitution. Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another.

-- BOUMEDIENE et. al. v. Bush et. al.

It is fitting that I write this post on Flag Day and in the midst of a time when many are graduating from schools that attempt to teach a bit of history and instill the values of citizenship. This is so because the Supreme Court, if only barely in one case, attempted to uphold what that flag stands for, adding some history and an example of (for good and ill) the institutions (imperfect they might be) it put in place. Much can be said, and others have said some of it. I will try to touch upon briefly some of the basic points involved.

A non-lawyers summary of the ruling, one honored by the resident lawyer can be found here. The link itself also directly deals with an interpretation to what the five justices, led by a former Republican lobbyist (yes, Kennedy is just that), did. The argument is that they were not compelled by the law as such, but by the facts. They had to deal with a "band of jokers" in some ways compared to the racism enablers faced by the Warren Court. To wit:

Let’s be honest — the Court today was basically saying “enough already.” The detention has dragged on for years (with years apparently to go), and it’s clear that another remand would add more unnecessary years to an already grotesquely long, embarrassing, and interminable process.

Let us note who exactly this "band of jokers" truly involves. It surely is not just limited by the Bush Administration or some lower court enablers. No no. The "et. al" is all too relevant here. As usual, Glenn Greenwald tends to cover the ground as good as any -- the Congress, including all too many Democrats (but not ultimately Obama, though no filibuster he), helped. This includes those like Sen. Specter, who declared the measure struck down as unconstitutional, but voted for it anyway. The act of a coward. A disgrace to those who declare to uphold the Constitution as much as the President of the United States.

A leader of the effort was Sen. McCain who now declares the ruling "one of the worst decisions in the history of this country" while simply lying. Yes, it is up there with Dred Scott and the Japanese Internment Cases! This is someone we are supposed to honor as a reasonable different sort, who unlike Obama has experience in leading this great nation? In what fashion? In enabling the suspension of a writ (snark) even older than him? The horror! After all this time, as Souter (again showing in a fashion, he honors the Brennan seat) notes his concurrence, all this proof of the need for a real check on executive power. This ranks as "one of the worst" decisions.

Yes, for those who support tyranny. Justice Kennedy is diminished, at times for cause, as a conservative enabler. Bush v. Gore will do that. Other times he is denounced as a blowhard. But, he suggests the dividing line among conservatives and statists. He might not want to carry out the true extent of the principles he declares, but Kennedy does declare them. The person who spoke of liberty and privacy in Lawrence and separation of powers in Clinton v. New York (and the gun case, Lopez) does believe in such things. So, he is the one to write such an opinion this month as well.

[At issue is as much a limitation of power, executive and congressional vs. judicial, as an immediate security of the rights of aliens. One summary of the point, among many posts worthy of reading on the rulings, can be found here.*]

The "band of jokers" writer, Publius, spoke of a Court that acted in a pragmatic way, which he clearly felt a bit uncomfortable supporting. Yes, it was compelled in this case, but on the law, CJ Roberts had a better argument in various respects. In comments, Katherine rejects this latter sentiment, also suggesting P. didn't quite do his homework. For instance, Roberts speaks of the grand rights offered to detainees (too much implicit assumption of guilt is some discussions btw), which the facts belie. More here.

Anyway, realization that true security of constitutional and legal commands might require addressing how they actually are being (or not being) enforced is part of the deal. It is mere empty formalism to robotically ignore such things. Likewise, the ruling (citing Brown v. Bd. of Education) suggests the limits of history, as much as originalists claim it binds us to follow a (usually) conservative path. The habeas precedents directly addressing a matter like this are a mixed bag with various ellipses. And, our situation is just not directly comparable to them in various ways. So, the lessons of history and the broad purposes of habeas must be used.* An honest and just path.

Meanwhile, our CJ, that of the United States, also joined Scalia's scare tactic dissent, declaring the majority risks our lives by honoring our institutions and the rights of many clearly innocent and mistreated to boot. Ditto Alito. Roberts did write the unanimous "companion" ruling of sorts, one that received much less press, but is still relatively important. The Court unanimously held that American citizens held in military custody in Iraq have habeas rights, though in the matter at hand, a foreign authority has the right to try them for acts committed on their soil. All the same:

By refusing the Bush Administration’s plea to block any habeas claims against U.S. military jailers in Iraq, the Court has dropped a hint that, in the new global village, habeas will follow the American flag overseas — possibly, everywhere except an active battlefield.

A core concern here, one the Court (three justices, again led by Souter, voiced some more clear authority for the courts when proof was more apparent ... though some argue it was here) held was largely a matter of the political branches (who assure us all is well here ... see rendition, huh?) was torture. We need not belittle the importance of that to honor the basic rule of law upheld here. After all, an opening in a more specific case is probably still open, the justices (again) using their discretion to underline certain limits on the political branches.

The rulings in effect suggest the Constitution, at least when dealing with minimum safeguards and limits of abuse of power, follows the flag. What better way to honor Flag Day than that?

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* In the words of the post:

"Consider three principles Justice Kennedy identifies out of the past:

1) habeas corpus rests on a theory of power, not a theory of liberty [p10],
2) it was “an adaptable remedy” [p50],
3) by which “liberty and security can be reconciled.” [p70]

Various Thoughts On The Week That Was

Tim Russert: I don't really watch t.v. news, so cannot judge him completely, but some have voiced concerns. If we wish to say nice things about him, as deserved, fine. But, when we analyze his career and effects on political coverage, the flaws should be noted. It is a bit strange to have some critics [see the comments too] not do so. Yes, even now. Remember how they viewed him during the Plame affair, with Cheney's liking the program and his "presumed off the record" policy? Honor the man by providing a full analysis of his career. It is not in bad taste to do so.

I shall discuss the habeas rulings but first will deal with a few other things.

Judge Kozinski: A Bronx native (probably the reason my local tabloid has extended coverage, including this update), oh we are proud surely, is up for prosecution on a federal obscenity charge. The absurdity of such a measure aside, and the desire to focus resources in this fashion is but one of the lesser problems of the current administration, a wrinkle arose because of the trial judge (once) presiding. Judge Kozinski, an appellate judge now presiding over the whole ninth circuit (IIRC), turns out (via the work of a disgruntled litigant) to have a not quite private family website that has some sexually explicit materials.

Why this should be relevant is unclear. There is the claim that the materials include bestiality, but that is overblown b.s.. The previous link (and others related) suggests the libertarian judge in question is computer savvy and quite concerned with his privacy. The situation underlines the limitations of both, but legally having sexual materials in a largely private area is the core issue at hand. Should someone who is overly Puritan be barred from presiding in such a case? It is mere hypocrisy to argue otherwise, if one wants to be consistent.

Zombies: On a less sensitive literary front, The Zombie Survival Guide by Max Brooks was a quite creative and well written book. It is listed as "humor," which is a misnomer, since it is quite serious. True, the best humor often is facially serious, but it is surely better listed as science fiction as its companion account of a zombie war. Brooks provides a rather well rounded analysis of the situation, including an extended "history" of zombie outbreaks.

Baseball: As to the local front, we have the NY Mets. [The Yanks struggle along, showing enough life to think a wild card berth is quite possible. Joba pitched a nice game vs. the Astros, even taking a couple turns at bat.] After a possible respite, the manager's job is again in jeopardy because of repeated (quite literally, almost a straight week) of blown games ... the proximate cause being the bullpen (an extra inning win was required to prevent a sweep by the Diamondbacks, when the Mets should have done the biting -- a sweep the other way was quite possible). But, we need not, should not, limit our focus.

Pelfrey (showing signs of hope, even if the team repeatedly don't honor him with wins when he does pitch gems) and Santana (though he again threw too many pitches, meaning he didn't pitch an essential another inning) shined, but there were problems there. Maine has struggled. Reyes again is caught stealing. Runs are not added or gotten when possible. The manager is part of the problem. You can't have it both ways there. If they were doing well, would he not be deemed part of the success. I think so. But, firing him without more is no answer.

And, it seems a tad bit outrageous to fire him in significant part because Wagner choked back to back to back. Still, say all you want about the team's flaws. They are surely there. Shouldn't be this bad. Nope. At some point, you start to have some gallows humor. Like, I overheard during the last game versus Arizona comments suggesting they were winning. They were 4-0. My quip: oh, Wagner didn't blow the save again? Ha ha. He later did, and they lost 5-4. Still, Pelfrey did finally get a hit. There's always that.

Dangerous Drugs: Finally, interesting report on a study that determined that prescription drug abuse can be more dangerous overall than illegal drugs. The lesson seems to be that we need better policies to target those, including by illicit means, that abuse said substances. It also might be that dangerous "drugs" are not just things pot or cocaine, and very well (particularly the former) might not be them at all. IOW, a realistic analysis might determine the true danger. Perhaps, that is what needs to be done to truly address the problem.

Changing well accepted "truths" can be much harder though.

Film/TV Round-Up

The guy behind Pieces of April, a good addition to the food/holiday as means to deal with family/personal drama genre, had a much bigger budget to play with for his next film -- Dan in Real Life. Alison Pill (a twenty-something making a name for herself in plays) also played a teenage daughter in this one, and it also was a family drama. "Dan" (Steve Carrell of The Office) is a single dad who winds up falling for his brother's girlfriend during a family gathering. This makes for some sad-sack goings on and the family seems a bit too good to be true, but I thought it had some charm. Low key drama (with a comic touch or not) is sometimes hard to find.

[Good commentary track. Another good rental, Teeth, has a less wordy one. Great movie though.]

Another good little film is Vacancy, you know, if you are in the mood for a snuff film. Seriously, the extras on the DVD includes out-takes from the snuff films of other residents targeted for death. The film itself is not of the Hostel variety -- the couple here spends most of the film trying to escape. The short running time (80 minutes) makes it nice and compact thriller ... some movies can very well be longer, but others really have a good amount of filler. The leads have a tendency to be stuck in supporting roles or somewhat lame (at best) sort of films, but this was a good choice for them.

For those who can find it, Take Out was also a good film, a low budget indie about an illegal Chinese immigrant who needs to get $800 by the end of the day to pay his smuggler payment. That is, just to stay in place, many more payments to come. A few too many scenes of him delivering food, but that is sort of the point -- it comes off as basically almost a documentary of a day in the life of a Chinese restaurant (we get a flavor of the other workers too).*

[spoiler]

Finally, Army Wives is back for its second season. The cliffhanger was a deranged husband going into the regular's bar strapped with explosives. This seemed a bit repetitive, since we already had a lethal hostage situation. Anyway, the second season started after the explosion, and the aftermath was lethal enough -- most importantly, the college age daughter of a lead was killed, though we only learn it near the end (her presence turned out to be either a dream or a near death experience).

Good episode, including the concerns of a new wife dealing with her husband going overseas for the first time. The radio monologue was too preachy (and a big tease, since we know someone died, but we are not told who until late), but good try. Promising start to one of the few remaining shows that I actually watch these days. It's getting harder to watch baseball btw, the Mets being swept by the substandard Padres in a four game series (the Mets hit Sunday, but couldn't pitch).

Still, I get WGN, so can watch a lot of Chicago baseball. Meanwhile, the Chicago based My Boys (lead is a sportwriter covering the Cubs) will be back later this week. [My dish doesn't get the Yankee station.]

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* I felt compelled to get some take-out, but unfortunately didn't go to a usual locale, so they partially messed up the order. This is proof positive that just because fast food places (be them stands, pizzeria, Chinese take out, or whatever) seem to be all of a piece, they simply are not. I have found the food and service are notably different depending on the place. The same for other service outlets actually.

HC Concedes -- Big Woop

Baseball: The road to fan hell is watching (even in part) the Mets lose three straight (let's go for the sweep!) against a bad team (the Yanks got around two, yes, two, four run deficits vs. another one) ... all 2-1. This is ridiculous -- win at least ONE of those type games.

LAT has a story on commuter hell, part of a series. I was curious of residents would read it while commuting, though the stereotype is that everyone drives out there. Maybe, on their blackberries while driving?

Congrats as well on those who chose the long shot ... a 38-1 shot. Great for betting and underdog supporters everywhere. My paper also has odds for presidential candidates. Of late, HC was a much bigger underdog than that. She too started out as a favorite. She too wonders, with apologies to Scott McClellan, "what happened?!"

I'm not a big believer in the wondrous nature of a single speech. From time to time, people raved about Bush's speeches, as if he wrote them or something. I look at the wider story. JFK was a mixed bag as president, but if he just from time to time had a good speech, the speeches themselves wouldn't be as special as they are considered now. Ditto his brothers.

Today's Papers [see Slate, a slightly different form of this originally a fray post] references the feminist/woman angle of the story as well. I think that comes off as a bit sad in this case. HC is promoted and seen by many as a great triumph for women, but her life story is a bit more tragic in various respects. The campaign is also tragic in this sense.

What message is sent in respect to women and feminism by such a screw-up of a campaign in too many ways? What message is sent by someone who wanted a job so much, but crossed the line a bit too much to try to get it, while in general (with hubby's help at time) making too many mistakes in part reflected by some sense of entitlement and too much assumptions/optimism of what surely will happen? And, the resulting anger and disappointments, and clearly some rancor.

Honestly, it sends a something of a bad message overall. We can, and yeah should, focus on the good things. How far a woman (but, little voice says, first lady) went etc. OTOH, we can focus on many women who actually succeeded, including the Speaker of the House. Stories that personally leave less of a bad taste. As her campaign did for me and many others, including some who were inclined at first to be on her side.

[One person noted she failed just like many men before her. Sure. Equal failure is a rough sort of accomplishment (still not very cheery), but sometimes it is an extravangence. Anyway, wouldn't admire this sort of failure if a man did it either.]

This is a necessary dance and we need to move on. Fine enough. Let's just not give it more credit than it deserves. Or, is praising her part of the mix? Whatever. Still don't want to vote for her. Again, TPM gives a taste, as does Lawyers Drugs and Money (with links to a more negative Matt Y.) and others.

Simply Really, Even If It's Not (2008 Elections)

And Also: My laundry asked me to return the cheap plastic hangers used to for my shirts. Since they are rather flimsy and I don't have any real use for them, this is not a problem really, but seems a bit much -- are things that bad now? Meanwhile, again a found penny meant having the right change. Some pick up, others toss away because they do not have them for those .06 like charges. Circle of life?

It didn't matter. Not only did Blanco refuse to sign, she gave Bush a two-page letter detailing everything the state needed to cope with the disaster -- troops, buses, supplies, money, and more. It would not be until several days later, when Blanco's aides released the letter to the press and got frantic phone calls from Rove's aide Maggie Grant, that it became clear that Bush had taken the letter Blanco had personally handed to him -- and lost it.

-- How Karl Rove Played Politics With Katrina

Vincent Bugliosi has a book out arguing that George Bush can/should eventually be prosecuted for murder for his handling of the Iraq War.* [The crime here is clear and broad enough that all that is left is to determine the degree of homicide.] Chris Hedges has an article out that explains how the occupation now is simply murder. And, on the domestic front, see this excerpt of the largely political handling of New Orleans, mixed in with a good deal of incompetence. This is just a taste of the things Bush and his enablers did that led to clear loss of life. Anyone who supports this guy should be scorned. McCain does. And, not just a little bit.

I'm a Democrat and have views that make voting for someone of McCain's ideology nary impossible in most situations, and him facing a total loser is unlikely. Dems might had some weak candidates over the years, but except in 1988, I don't see me having any inkling to think about voting for the opponents. I guess, not that I was thinking about politics at the time, 1976 would be something of a toss-up, but given Nixon and Ford not exactly having a great couple years (overall, he probably did okay, especially given the situation) ... don't think so. Various local races might be different, but such are the facts.

But, we are talking total loser now. Let's be blunt about it. Problem is, it is not deemed correct to be so. For instance, lots of verbiage is spent on talking about the deficiencies of Obama ... fact is, Clinton lost the election fair and square. She must have thought she was a Republican -- presumptive candidate, entitled for her years of service and ignoring chunks of the country as unimportant. Oh, toss in some negative campaigning. Lacked that evil genius political staff, perhaps. Anyway, we hear all about the problems of Obama, and various "oh well, get ready for President McCain" whines on the blogs.

Oh please. We live in a two party system. What is the alternative? McCain has a nice facade, surely, but it works better in the Senate where he can be one of many. Up close, we see how faux it all is. Media Matters and others will suggest that the media will help prevent this, which is a valid fear, but this just requires some more effort from the right parties. Anyway, the guy is so problematic that even the media has taken notice. See, e.g., Talking Points Memo coverage on Fox finding his speech in response to Obama's victory statement rather lame and other matters. The front page of the NYT apes Glenn Greenwald on his flip flop on executive power His relationships with lobbyists gets covered, not just via a single NYT article that can be tarred. etc.

Putting that aside, the simple fact is that it is pure negligence for a citizen to allow those primarily involved in the last eight years, the problems are myriad, to continue to be in power. This includes making Lieberman the swing vote in the Senate. But, prime and foremost, it means the presidency. We KNOW Bush has f-ed up things. Let's f-ing take it seriously!!!! I referenced his administration's fraudulent selling of a war. In 2003, I raised questions -- with the suitable cites to The Federalist Papers -- about if this had impeachment implications. Fine. We have to stick it out.

I find this appalling, but so it goes.* It surely means the people involved do not deserve to keep on doing such things. It means that those who aided and abetted them deserve to be scorned, not given more. McCain is a member of this group. He supports the President and his crummy criminal war/occupation. Clinton's involvement was much lesser, but enough (Kerry had some of this too) to be a deciding factor. Idiots suggest Clinton and Obama were basically the same, the only difference the message/style. You know, other than the war. Oh well, yeah that. The blood of hundreds of thousands treated mostly as an aside. BTW, Dean was right too. But, Kerry was the safe choice, you know.

I'm for nuance as much as the next guy. Life is complicated. Serious sorts have to realize this, and not simply treat things as black and white. People wary of or even against legalized abortion for various reasons are not just fascist losers who hate women. And, the most accurate and beneficial path requires looking at certain weaknesses and wrong minded thinking of those on your side overall. Still, you have to stay true to the bottom line. Push comes to shove, you have to declare that "but, come on now, the other side surely is still not the answer; you don't seriously think so, do you?" McCain might not be a total loser, which might look great in comparison, but he supports the problem.

The fact he has a slew of problematic conservative positions, to be "partisan" for a moment, only adds to all of this. But, the fact he loses even some bare minimum requirement for office test is evident all the same. This includes, it must be added since b.s. is a major problem these days, his openness to the weasel. Thus, even on issues like torture, he repeatedly gave the President an opening ... putting to shame McCain's legislation directly targeting the practice. It is also a reflection of his faux maverick persona, harder to consistently apply while running for President. It requires more "there" than his regular image.

And, not just is a Nader sort of way that suggests that all sides are part of the problem because they compromise in promotion of electoral ends. A stomach growl is not necessarily a sign of starvation. It is worthy of concern, but perspective matters. Grown-ups have it. Let's get real. The guy who supports the person who "lost it" deserves to lose. Any hope of real change and salvaging our political system over the next few years will require electing certain sorts of candidates, starting with a President who did not support the war on our republican institutions. This is so even if he talks a good game (though apparently, not in various speeches) and is not a total loser.

The fact this will be something of a hard sell is pretty sad.

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* The first comment to the linked piece is strikingly accurate:

I can only imagine how the author feels. He prosecuted Charles Manson who orchestrated the deaths of 5 people. In Manson’s delusional mind, he believed those 5 individuals had to die. He rightfully was imprisoned for life. Bush orchestrated the deaths of 4,000 American soldiers and over 100,000 Iraqis. He knew, based on CIA intelligence, that they did NOT have to die, but he lied to make it happen all the same. Then millions of Americans voted for him for a second presidential term.

This is where the impeachment issue comes in as well. One can understand the various reasons why it wasn't chosen, but this does not exactly justify letting someone commit a myriad of crimes against the state and polity overall. It just explains it. As Glenn Greenwald notes today, the result is also that such things suddenly become mere "policy differences," that "grown-up" sorts realize must be compromised over. Or, worse, perfectly acceptable as policy overall.

The fact the opponents of this view are flawed and at times go over the top doesn't erase the simple fact they are -- overall -- the sane ones.

Manga Career Advice (and an aside on Tom Paine)

And Also: The Blue Jays get to the Yanks ace ("ace" of late), hang on with help of a great catch and tack on a run. But, their highly paid closer chokes. This is why they are (again) playing for third place. Meanwhile, Pelfrey pitched very well, but the Mets again lost (to be fair, once they did win in such a situation, giving MP a no decision). This time via hit by pitch. The Cubs winning streak ended at nine because they left former Yank Ted Lilly in a bit too long. Hard luck loser. Cubs won again the next day.

There are some positive reviews of Adam Sandler's new movie that suggests "light" fare can have serious overtones. As a professor once noted, graffiti and such that made remarks about the king's sexual problems was a powerful example of where things were going in the age of the French Revolution. Sitcoms and even lame movies can promote certain themes and lessons, the former sometimes rather well. One shouldn't give such things too much credit, surely, but they often deserve more than they get. They show the potential and intriguing/enjoyable breadth that freedom of speech wrought.

Marjane Satrapi and others underline the value of the graphic novel in promotion of serious ends. See also, The Adventures of Johnny Bunko: The Last Career Guide You'll Ever Need, a manga approach that is creative, fun and (as Advertising Age noted) rather on point too. A young accounting wage slave learns a few lessons from an alluring mysterious woman who comes by each time he breaks a set of magical chopsticks. Diana's (Daniel H. Pink's) lessons, applicable (as the book notes) in some fashion to life in general:

1. There is no plan.
2. Think strengths, not weaknesses
3. It's not about you.
4. Persistence trumps talent.
5. Make excellent mistakes.
6. Leave an imprint.

The book covers this ground in a bit more detail, but let's take #5. The idea here is particularly that seeking rewards involves risks, a lesson that is recognized all over the place. Jesus had a parable about not keeping your gifts under a bushel ... do something with them, even if it involves some risk; a free press requires some room for error; friends and families are given some room for error, etc. See also, a recent Dan Savage column (e.g., in the Village Voice) discussing the value of break-ups ... you learn from the experience, even through the hurt. You get over it (well most do), and hopefully grow a little.

This doesn't mean acting stupid. Note the "excellent." Life includes both excellent and not so excellent mistakes, both coming with the territory. I would add that it doesn't only include personal mistakes. I am not of the "everything happens for a reason" crowd. True enough in the sense that each effect has a cause. [I won't go into God here, though I did recently skim some Paine writings, and he makes a few leaps in that department.*] But, I don't think little children suffer for the purpose of us learning how to care or whatever.

All the same, we can still get something out of bitter experiences. You know the deal with lemons and lemonade. Hopefully, overall, we come out ahead. Not always the case, but that's the hope. Anyway, you might need another career guide, if you need guides at all that is, but the book is a nice find. Serendipity in action.

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* The argument of first cause has for some time seemed rather lame to me, something your average five year old questions, but for some reason growing up includes putting aside such questions. This doesn't mean all of them are wrong. Paine also promotes the natural rights idea. Again, there very well are rights that grow out of our natures. But, "rights" imply some sort of enforcement mechanism. They also -- admittedly there is a deistic issue involved here -- are artificial. They are man-made. How exactly does let's say the right to practice religion occur in a vacuum, without society establishing it?

[Christopher Hitchens' mixed bag book on Paine covers the ups and downs of his writings.]

Paine has some good ideas, including arguing each person born into this world should be considered to have a birthright based on their share of the benefits of nature (many use them for profit, but like those who benefit from the sweat of workers and those who purchase their products, they rely on something for their success). He was an early opponent of slavery, and though spent much talking about the stupidity of kings, made a strong case (to his detriment) that King Louis XVI should not be executed. And, his wicked tongue is fun.

Still, along with some tediousness, the assumptions -- some widely held -- are a bit troubling.

SENATE COMMITTEE ISSUES REPORTS ON PRE-WAR IRAQ INTEL

Secrecy News: "A summary of the report's conclusions, which would have been most useful about four years ago, is presented here, with links to the newly released reports." Sen. Rockefeller noted: "In making the case for war, the Administration repeatedly presented intelligence as fact when in reality it was unsubstantiated, contradicted, or even non-existent." See also, Talking Points Memo. This is mostly old news as TPM says as is the fact it is fundamentally what impeachment is all about. But, this is a no go. We don't do things that way. We are weak-willed losers.

Baseball Interlude

And Also: HC might not quite believe it [see TPM -- publicly, she does now], but look who's the Democratic nominee for President?! Yes, there are surprises in politics. Same sex marriage and a black (biracial) presidential candidate with a good chance of winning? Tell me that a few years back ...

Joba Chamberlain started some games in the minors, but has primarily pitched in relief, including in his short career in the majors. His "stretching out" to prepare for a transition to the starting rotation amounted to some extra pitches off the mound. His past appearances was shorter than his 2.1 innings pitched last night. IOW, it is no surprise really that JC didn't do that well in his first appearance, albeit against the light hitting Blue Jays (their ace was on the mound, but didn't have his best stuff).

OTOH, the guy called up to serve as long relief got the loss because the run he gave up in 3.2 came at a bad time (when the Yanks weren't losing ... a six run seventh sealed the deal). Basically, the guy who pitched the best of the bunch (the pitching line looked like a spring training game, the usual no names getting their inning or two) lost the game. Such are the breaks. It looked like one of the few good outings by Pelfrey would again go to the wayside recently before an eighth inning comeback gave him a no decision. Good thing, since the Mets will use him as a fifth starter, Claudio Vargas going into relief (served well after Perez lasted a batter on Monday).

[Mussina followed up with a win -- it will not always be pretty, but he clearly has something left, and is starting to be quite dependable. Surely he will have down points, but this was one extended contract that pay great dividends.]

Last night, after Joba started, Pedro Martinez came back from his injury (early exit in his sole outing this year). This went well, since he not only pitched pretty well in six innings (two runs given up in the sixth came after it wasn't a game any more) but joined the hit parade (two hits, most since the '90s ... though he was an AL pitcher or injured most of the time since the last time). The Mets needed the game, since they are playing the Giants and Padres, and already didn't take advantage of the other lapdog of that division ... the Rockies.

[BTW, one reliever that was converted midseason into a starter was Santana, helping the Twins get to the postseason.]

The Mets won 9-6 (six run fifth ... turn off the game, it's 1-1 in the fourth ... a three run homer meant a save in the ninth, a two pitch double play; nice work, if you can get it). Joba? We will see how he does as a starter. Hopefully, for Yankee fans, better than the other two youngsters (both injured now). This is surely the case since without him pitching in the eighth, late game leads/winnable margins are in jeopardy. Anyway, would seem like he could have been eased into it a bit better. [I started this before it happened, but the Mets did win today's game, and thus another series.]

Likewise, another bad outing by Barry Zito suggests if Scott Kazmir's victories continue to be a thorn in Mets fans' side for an ill advised trade that led him away, it's good news that Zito -- making Santana like money in a similar long contract -- decided not to come here. And, nine in a row? Look at thoses Cubs.

In The News

Slate's daily news round-up linked an interesting article in the Los Angeles Times discussing gender roles in Islamic countries, in particular, media and entertainment expression of them, including their answer to Carrie Bradshaw. This brought to mind another article some time back discussing how Saudi Arabian women get around taboos on intersexual gatherings by using text messaging. Likewise, other books and stuff that I personally read/watched. Also, Bush talking about responsibility? No lie.