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

Saturday, January 31, 2009

No Lobbyists?

Mark Green made a good point on Rachel Maddow yesterday -- when thinking about Obama's no lobbyist policy, including his waivers to it, we should remember not all lobbyists are equal. How about a non-profit lobbyist for some voting rights organization? When you come down to it, "lobby" inherently isn't a bad word, and realistically too many are "tainted" to have some absolute rule. This doesn't justify any waiver -- that would be nihilistic -- but it might suggest Obama's early rule could have bitten off more than it could chew.

Exclusionary Rule Under Attack

A few posts back, I noted that the Supreme Court's ruling in Herring v. U.S., involving the exclusionary rule and computer records, should be of special concern on the anniversary of Roe v. Wade, both a threat to privacy rights. Consider an earlier case, Georgia v. Randolph,* involving the inability of one spouse to consent to entry of a dwelling when the other protests. A ruling that would probably have been a bare 5-4 ruling if Alito was involved. It explained at one point (cites etc. removed) why the opinion went the way it did:
Since we hold to the centuries-old principle of respect for the privacy of the home, it is beyond dispute that the home is entitled to special protection as the center of the private lives of our people.

The legal reporter over at the NYT, Adam Liptak, uses Herring to note the growing move by the current Supreme Court to do away with the exclusionary rule. It also suggested why people like me were against Roberts and Alito, the latter not showing up when Obama/Biden came to the Court, perhaps because they didn't vote for him. The article suggests why they did not:
Justice Samuel A. Alito Jr. joined the Herring decision and has been a reliable vote for narrowing the protections afforded criminal defendants since he joined the court in 2006. In applying for a job in the Reagan Justice Department in 1985, he wrote that his interest in the law had been “motivated in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure,” religious freedom and voting rights.

As I did, with additional evidence, the article also notes how Justice O'Connor would likely have voted differently on this specific matter. A ruling that already has had effects, as a recent lower court ruling showed:
The agent had told the judge that DVDs found during an earlier search contained child pornography.

This was false: other law enforcement officials had reviewed the DVDs and had found no child pornography. The agent, who was leading the investigation, testified that he did not know of that review when he made his statement.

He had not reason to lie, right? Or, fudge the matter. The article, however, does a disservice by not dealing with all the exceptions allowed over time in this area. Thus, we get this bald statement without much (if any) context:
The United States takes a distinctive approach to the exclusionary rule, requiring automatic suppression of physical evidence in some kinds of cases. That means, in theory at least, that relatively minor police misconduct can result in the suppression of conclusive evidence of terrible crimes.

No wonder John Roberts some time back ...
In 1983, a young lawyer in the Reagan White House was hard at work on what he called in a memorandum “the campaign to amend or abolish the exclusionary rule” — the principle that evidence obtained by police misconduct cannot be used against a defendant.

Of course, things aren't that simple. It might be useful to know what "some kinds of cases" means or "relatively minor police conduct" or what happens generally. We are left to reading the (.pdf) file/article provided via link by the losing part in a "no knock" case, which notes things such as:
In his recent comprehensive report on the rise of paramilitary policing in the United States, Radley Balko described seventy-two cases since 1995 in which police officers subjected completely innocent people to terrifying and humiliating paramilitary-style raids only to discover that they had raided the wrong residence. ...

Finally, even if the police do have the right address and the contraband or evidence is present, there is a very good chance that innocent people, such as children or elderly relatives, will be present. Indeed, the Court has long recognized that the police may execute search warrants on premises owned and occupied by people who are not suspected of wrongdoing at all, so long as there is reason to believe that contraband or evidence of crime will be found there.

Again, a fairly conservative former prosecutor in Mapp v. Ohio noted that without the exclusionary rule, the privacy secured by the Fourth Amendment would be "valueless and undeserving of mention" and so forth. Anyway, I appreciate the NYT article, which provides an informative look into the Supreme Court, how things have changed in recent years, and the importance of Obama's nominations.

It is not atypical either -- Liptak often has interesting stuff and does the tradition of Linda Greenhouse, now in academia, proud.


* The ultimate ruling was narrow because police could still get such material in many cases anyway and even at home domestic violence cases might be different, but it remains important for its underlining principles. This includes "widely shared social expectations" that includes the equal roles of each member of the marriage as noted by Stevens' concurrence. If we ignore such things in the promotion of some governmental interest, it might be much easier in any given case to trump privacy rights. IOW, underling assumptions can be key here.

Friday, January 30, 2009

Informing Function v. Executive Immunity

And Also: Dare we hope Dems being Dems? Why not just have a "nonpartisan" solution led by McCain or something?

Earlier this week, the House Judiciary Committee issued a subpoena to Rove, ordering him to testify February 2 about the US Attorney firings, and the prosecution of ex Alabama governor Don Siegelman.

- TPM (continuing coverage on stuff more people should know)

There you go, looking to the past again. Now, one of my things is history, so I might be biased in this respect, but then again, it's also unavoidable. This can be repeated until it sticks. Political theorist Woodrow Wilson (egghead before being President) held that the "informing" function of Congress was perhaps if anything more important than its legislative function. Putting ranking the functions aside, congressional investigations of how our government works is clearly a very important issue. This includes subpoenas in which people promise to tell the truth and all that. Something not deemed important in the Republican Congress, where various witnesses were apparently on the honor system. Not that lying to Congress is legit (or legal) either way, something that some seem to ignore.

This is but one situation where "executive privilege" was used to hinder the process. This was and continues to be b.s. Such CYA moves* are understandable, but it doesn't make it less open to our derision, and bad governance to boot. The challenge here is useful in that it forces the Obama Administration to go on record. This is important as a matter of constitutional principle. The Supremes have determined that executive privilege (somewhat akin to attorney/client, to provide a rough comparison) survives "death" shall we say, that is, yeah, Bush can raise it even now. But, in the very same case, the SC noted that the opinion that it:
must be presumed that the incumbent President is vitally concerned with and in the best position to assess the present and future needs of the Executive Branch, and to support invocation of the privilege accordingly

The case involved protecting presidential records, which is still relevant, given the lack of protection over this area by the last administration. This includes loads of lost emails as well as an excessive interpretation of the exceptions supplied by law and good practice. The ruling involved intra-executive dealings, Nixon opposing an executive agency assigned with the records, setting forth a position opposed by Ford and (then President) Carter. U.S. v. Nixon underlined that executive privilege is important but limited. There the balance was a criminal investigation and the role of the judiciary.

But, Art. I comes before Art. III, and when discussing the subject in the Cheney Energy Task Force case, the Supremes spoke of how the "court’s Article III authority" AND "Congress’ central Article I powers [c]ould be impaired." Thus, U.S. Nixon's words apply here too,** since the investigating function, especially when dealing with corruption of the Justice Department and other possible lawbreaking, with implications for policy and even impeachment invesigations. To wit:
In designing the structure of our Government and dividing and allocating the sovereign power among three co-equal branches, the Framers of the Constitution sought to provide a comprehensive system, but the separate powers were not intended to operate with absolute independence.

While the Constitution diffuses power the better to secure liberty, it also contemplate that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.

This has gone on way too long. We need to make it a fundamental matter that presidential advisors, particularly those with roles in possible wrongdoing, can be free from congressional questioning. This includes not trying to convince us that some secret meeting not under oath or without a record would do the job. Rove seems like some nifty political gotcha, but the same premise was used for Josh Bolten and Harriet Miers. And others. It is a principle that goes beyond any one person. Like waterboarding, even if only a few really bad people had to suffer it, the President is not beyond the law. And, there are three branches of government, not just one.

Thus, with the proper word alterations, the below citation from U.S. v. Nixon applies here too, "compulsory process" including congressional subpoenas here, the judicial process specifically at issue in the matter at hand. And, "the rules of evidence" would include not abusing the subpoena process. Executive privilege has its place, but also its limits:
The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense.

The Administration is due to set forth its position in February, John Conyers agreeing to push back the deposition to accomodate that. Let's see if this will just serve as more delay.


* As my first comment at the link suggests, we should attack the alleged "reasonableness" of such people, not letting them get away with trying to be above the fray, making their opponents the "dirty fucking hippies" of Atrios fame.

** The energy task force matter (see here) underlines the importance of independent groups as well. The Supremes held a civil lawsuit pushing for discovery of documents did not reach the level of judicial or congressional disputes with the executive department. But, the "Fourth Estate" is important too, be it the press or other groups. I use the term to loosely involve all possible First Amendment type movements here.

When the Senate Republicans came back to power in 2002, the Supremes avoided deciding a more troublesome issue -- blocking the GAO, a congressional body, who earlier sued Cheney. Lest we forget, the suit that did reach the SC here is also the matter that led to controversy when Scalia didn't recuse himself, the ultimate 7-2 ruling showing how important his involvement was. Quack quack indeed.

Thursday, January 29, 2009

They All Said "No." Great

And Also: Elections mean more than executive orders ... Justice Ginsburg in effect wins the war in the Ledbetter case. "As in 1991, the Legislature may act to correct this Court’s parsimonious reading of Title VII." Yes.

When the leadership of one party is of this caliber, why should I take them seriously? I'm not a big fan at times of the Democratic leadership (couldn't wait a few weeks for this to happen, huh?), but the other side has just too many creeps for my taste. They all said no on the stimulus in the House; can we have a better bill now?

Or, must we compromise now with Republican senators of the like of weenie boy Arlen? Rhetorical question. Meanwhile, Nicholas D. Kristoff thinks the way to deal with Gitmo, other than transfer it back to Cuba (or use it as a research center):
is to appoint a high-level commission — perhaps a McCain-Scowcroft Commission? — to investigate torture, secret detention and wiretapping during the Bush years, as well as to look ahead and offer recommendations for balancing national security and individual rights in the future ... with its conclusions written by Philip Zelikow,* a former aide to Condoleezza Rice who wrote the best-selling report of the 9/11 commission.

Yes, some Democrats "might begrudge" so many Republicans in top positions, but it would be more likely to be accepted with "nonpartisan" membership. This is underlined by leadership by the recent Republican candidate for President, a member of the administration being investigated, and an old guard friend of Bush41. The net result will that torture will be damned (but the Bush Administration didn't commit torture, according to them, so why is that necessary?) and some better judge of how to "balance" individual rights and national security will be reached.

The latter issue appears to be the concern of "former generals, top intelligence officials and outside experts" who will be involved in the commission. Thus, the Republican (aka nonpartisan) led commission will not really just be for the "investigation into torture and other abuses during the Bush years," but a much broader matter. And, as with the "nonpartisan" leadership, this suggests a certain conservative flavor of who will weigh such things.

The conclusions seem obvious -- we made mistakes, maybe understandable given the times, some watering down is necessary not just as much as supplied, and do not expect actual punishment being on the table. This is the way to "heal the divisions with the rest of the world and help renew America’s reputation." Yes, avoiding the depths of the problem, and entrusting it with those who we should have no expectation will truly deeply investigate the matter to the full extent of the matter (as compared to what will "heal the divisions" ala the apparent need in the eyes of some for bipartisanship in the stimulus plan) at hand.

I guess if we take his assumption that Obama is trying to avoid the issue anyway, his path might give us something. OTOH, the "balancing" might use the legitimacy of the commission to further limit constitutional rights. And, in the process, provide some whitewash and/or limited value in calling the administration et. al. to account. Stacked decks with low expectations tends to do that. So, I don't really see the net value of the whole suggestion.

Except, perhaps to advance "nonpartisan" ends. When this is applied to the person who ran for President under the Republican line with Sarah Palin etc., it really starts to enter the realm of the ridiculous.


* Involved in the 9/11 Commission, which the opinion piece suggests has been given a certain degree of respect. But there, the commission was also balanced with Democrats and Republicans, not just one side allegedly "neutral" on the matter. The neutrality of McCain is unclear given his enabling of Bush, and rejection of Army Field Manual legislation to put real teeth in anti-torture law.

Wednesday, January 28, 2009

Sen. Gillibrand's Oath

And Also: Balkinization has comments once more, if not for all posts. [Update: See here. Seems silly not to even supply a thread there for discussion. The hosts never seriously addressed the issue (e.g., a post to warn, have a debate) and now it's "fine. no candy for you!" As to it being "successful," well, depends on what you want on a blog. Handled badly all around.]

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.

The coverage of Gillibrand's appointment, as shown in large part by Internet discussion, belies the implication of a NYT opinion piece* that the latter is just some sort of "cesspool" of misinformation vis-a-vis newspapers. As I also discuss here, dealing with fiscal matters is not the only or even maybe the primary concern the hard copy press should be concerned about. Not when I read an AP piece on the swearing-in that yet again labels her as a gun supporting Democrat (in the very first sentence) as if that moniker suffices and/or is not just plain misleading standing alone. Media Matters etc. also will have something to say about where the true "cesspool" lies. This was so in Jefferson's honored press too.

[I should note that her status on immigration issues has also been conservative, not just guns and opposition to the bailout in late 2008. All the same, coverage of that issue in the NY Daily News etc. does not note that she is traditionally liberal in a majority of issues, even with her stance on guns and immigration -- opposition to the bailout is not per se really conservative, given flaws with the stance, especially given problems experience has shown. Also, immigration is not what had been noted as "conservative" as compared to guns/bailout by most coverage I have seen before today. Anyway, the matter has been addressed in the NY Daily News and Times today.]

I wanted to watch the brief ceremony where Rep. Gillibrand became Sen. Gillibrand via an oath supplied by President (of the Senate) Biden. As an aside, when taking mandatory oaths or affirmations (I reckon the last line is removed for the latter), is it required that someone give it? IOW, can someone just say the necessary words aloud? Probably not, since the person giving the oath/affirmation serves as an authorized witness to the act.** This is probably an implied requirement to the oaths/affirmations set forth by Art. II (wording supplied) and Art. VI (wording to be provided by the relevant offices).

Anyway, the replay was at eight last night, but the Senate was still in session. So, didn't see the two minute ceremony (C-SPAN website has it being played from 8:00-8:01). C'est la vie. It is notable all the same that an oath was taken. Some found it a bit much to be so concerned that Clinton allegedly broke his oath over some sexual business. Still, oaths mean something. They are special acts that suggest a certain special responsibility. Just look at a marriage oath. Thus, especially back in the days when religious and royal disputes were big deals, oaths meant a lot in the days of the Founding Fathers. A "test oath" that you would honor and obey (and perhaps, always did) the Church of England, deemed by some the work of Satan, meant something.

And, oaths continued to be a controversial matter through American history, including during the Civil War (see, Amendment XIV, sec. 3) and during the Red Scare. Vague open-ended oaths in particular, especially those respecting past conduct ("have you ever been ...") were trouble. Some absolutist types might not even like this one, since the uprightness do not need oaths, and fools/knaves will say them with an empty heart.

But, it helps if one remembers that "support and defend" does not mean denying that current policies can be flawed or open to revision. After all, Sen. Feingold swore that oath, and now wants to amend the Constitution to require popular election of senators after vacancies arise, to avoid the troubles N.Y. and Illinois recently had. "Faith and allegiance" to a spouse also does not mean never criticizing them, or enabling them down a bad road. It does suggest a certain degree of support, akin to a prosecutor who does his/her best to promote one side, even if they might think there is some reason to think they are wrong. The job of a senator is to carry out the office as it is spelled out in the Constitution, not to spend most of the time trying to change its contours. So, if one is that critical of the Constitution, you might not be fit for the office. Still, blind affirmance to the status quo is problematic too.

The revolutionary, even if peaceful/law-abiding, is often not the best legislator. True enough. All the same, nor is the blind patriot, whose patriotism is more misguided in the long run. Putting that aside, the agreement to "well and faithfully discharge the duties of the office" is a big responsibility, one that takes into consideration various matters. And, this is done "so help me God," putting a veneer of the sacred on the whole thing. So, when we expect a lot from our public servants, we do so advisedly. They have responsibilities, even if it goes against partisan or other desires.

Again, let's see how she does, now and at election time in 2010.


* The term "op-ed" is misleading in this context since it implies the editorial board is providing the opinion, when in fact a columnist, here a guest too boot, generally does so. The term "op-ed" is better applied to the editorial page in particular.

** This is the basic function of notaries, who also are qualified to handle oaths and affirmations. President Coolidge was sworn in by his father, a notary, after Harding died. I wonder if any sort of notary is technically qualified for such a job.

Tuesday, January 27, 2009

Who's To Blame at Balkinization?

Balkinization blog turned off the comments recently. Some will blame a resident knee-jerk neo-con type, but the childish antics of those who respond was probably as or more problematic. Free debate will include miscreants; calling them names is not going to help too much. At some point, the ranting of people allegedly sensible is worse. You expect something from them. Also: Frozen River appears to deserve its Oscar attention, even if it sounds damn depressing (if topical). Arlen is such a tool. Here's a creative use of resources.

Monday, January 26, 2009

L Words

And Also: Back to earth, we remember that the Obama Administration will leave something to be desired. See, Israel and Afghanistan. And, dubious exceptions to lobbyist rules. On Afghanistan, I never was in the camp with various other Dems in thinking, "hey, here we can play being tough!" Putting aside the limits of the situation, war making there also is a problem.

Law: Slate's "Today's Papers" cited a WSJ piece on certain areas that appreciate prison labor. As I discuss here, this is really not too atypical, and the cited books are good reads as well. Tidbits that make our day alert: "Edward Floyd Fink, a jailhouse informant."

Lewd: (Ad In Local Paper)"Men: Size Matters on Vday. Send a 8-Feet Tall Teddy Bear and a 6-Feet-Tall Rose. Make Her scream." Yeah. It's like those Vermont Teddy bears, the price of which can be often replaced with a dinner for two at a reasonable restaurant. Or, the movie on last night in which a guy (unsuccessfully in the long run) tried to say he was sorry via a necklace worth thousands of dollars. Hey, honey, here's a month's salary! Isn't prostitution horrible? Much better to spend comparable money for just the hope of sex.

Library: Bit of local business suggests the importance of the government keeping local concerns in mind, especially since it is often how the public most directly experience its power. The value of government was shown in its absence with a local library closed, with little in way of information, because of lack of heat since Thursday. A call to the local council person suggested his office was not even aware of the issue. Overall, the library does well, but who remembers when one's child actually does listen to you?

Local Politics: Kirsten Gillibrand is due to be sworn in tomorrow, so let's get in some more complaints on the selection's dubious coverage (but see comments), which putting aside those who do get it (a primary challenge, perhaps from a gun opponent in fact more conservative than she, is not exactly a bad thing). As at least one comment to this piece notes, dubious coverage, not just his own rocky (with some mitigating factors) accidental governorship, makes lower poll numbers a self-fulfilling prophecy.

This includes suggesting Caroline Kennedy is in no way to blame because she was just (admittedly ill advisedly) wanting to serve the public. By running a vanity campaign that helped to make a mess and embarrass Paterson, who in effect had to deal with the Kennedy Clan and a likely 2010 primary opponent, Andrew Cuomo, and a bunch of also rans. As comments to the above cited bad post suggest, accepting these two as dubious, his options were not grand.

Leaders deal, but we lack a lot of them, so when the usual sorts muddle through okay, we should at least understand they aren't losers. I have gone on about this for two reasons. One, she's to be my senator. Two, when people I respect and major local press (and beyond) provide such shoddy coverage, it is a problem. One that will not be limited to faux latter day Sarah Palins.*

Lunch: I gave a link to Quantum Leap last time ... the website is clearly not quite there yet!


* The hunting and inexperience thing. And, maybe the baby thing. We can ignore, I guess, her law school experience, working in the Andrew Cuomo office in the Clinton years, service in a top law firm, an ability to be moderate and show some real political skills even with national eyes on her, and so forth. Yes, the blond is the smart one here.

Sunday, January 25, 2009

Last Chance Harvey [Spoiler]

And Also: Sorry, temporarily didn't say "spoiler," though not too bad. Also, saw the Hallmark t.v. movie, Loving Leah, about a modern day levirate marriage of convenience that goes in some(what) unexpected directions. Lauren Ambrose leads a well done production that honors religious faith, in all its many forms. It was definitely better than LCH, and much cheaper to boot.

January is usually one of those times when there is a lull of movies, though it doesn't help that some of them out there (even a few with good press or even an Academy Award or so under their belt) are not what I feel like watching. So, in part because the other person wanted to see it, I went to a lesser choice -- Last Chance Harvey. First off, let me say that I didn't think Dustin Hoffman is 71. That is, even if a bit of thought suggests that is about right (The Graduate is around forty years old, and he wasn't twenty back then!). Guy looks pretty good for his age, which is good, since Emma Thompson (love interest) is around fifty. So, even though there is an age difference, it is not as bothersome as it might otherwise be.

As to the movie. Didn't really care for it. Sure, I buy them as a couple, and they providing pretty good performances. Not so good material. First off, the story laid on how pathetic they both are rather thick. And, darn, if we later find out in a major way his situation isn't so pathetic. This was part of the "can't make things too unrosy plot department," aka having one's cake and eating it too. In fact, this is clearly Dustin Hoffman's film, since his story is more predominant, she serving more as a foil and plot tool. He has career, family and even health issues, she is just something of a sad sack with a lovably nutty mum. I also didn't like a late oh so obligatory plot device, one that just made me groan. Sad overall, since I wouldn't have minded these two in a romance with a serious side, since even this film was watchable. Just not that good.

Dustin's character had a rocky relationship with his daughter, so the plot needed something serious for Emma's to share to balance things off. Interestingly, especially for this blog, she let out that she once had an abortion. This fairly in passing reference to abortion is rare enough to be notable. I would add that it was obligatory that it was noted with sadness, his improved relationship with his daughter making her think "what might have been." And, abortion (the 'a' word not used) was deemed something "smart" girls did -- iow, an implication that she had one not because she wasn't really ready to have a child at the point of her life, but because she was led to do so by a stereotypical vision of being liberated. Some might say that this fit the plot etc., but the telling part is that for some reason this is the sort of reference that always seems to fit any given plot. From my vantage point at least.

Anyway, for N.Y.C. dwellers, Quantum Leap is a good vegetarian restaurant with reasonable prices. And, hey, it has fish too for those with issues with such fare.

More Kirsten

See a comment here on how one top choice, Cuomo, was a problem for reasons such as fears of nepotism and removing another key elected state-wide Democrat. Likewise, the need to support an upstate politician, the other option in the House delegation a senior member in her 70s. Or here, supplying some bona fides. Here we see she is unpopular upon the delegation, the article making them sound like some high school clique. Let's see how she does.

Saturday, January 24, 2009

Various Bits

Good pose shown here. I second the idea the Kirsten Scott Thomas deserved an Oscar nod, and the excessive votes for The Reader and Slumdog Millionaire (even shoving aside Bruce Springsteen!) were lame. Rachel McAdams of The Lucky Ones also c(sh)ould have got a nod. Picks were overall probably fair enough. More in February. And, Conan O'Brien had some fun with Obama's "end of childish things" comment in his inaugural. The referenced biblical quote was also addressed in Converting Kate. And, yeah: grow up people!

ACK! Oh wait ...

As Greenwald notes today, along with both Keith and Rachel last night, we are getting scare tactics involving someone released by Bush from Gitmo. Oh no! (1) The nature of Gitmo makes it harder to keep us safe in various ways, including probably serving as yeast for terrorism. (2) You cannot keep all the bad guys away. The alternative is keeping loads of innocent people in or those treated horribly etc. Which is counterproductive too. And, simply unjust.

Friday, January 23, 2009

Sen. Kirsten Gillibrand (D-NY)

And Also: Obama quietly, a day after Roe's anniversary, ended Bush's "Mexico City Policy" of denying federal funds to international groups that perform or provide information about abortions. This is basic to free speech and privacy rights, but really, it is a controversial policy matter that shouldn't even be up to an executive's say-so. Here's something from the new OLC boss on Roe, including the importance of asking the right questions.

[Update below; I discuss one column in particular, but it reflects some others, so is more representative than it might at first seem. The whole thing is so tiresome. So knee-jerk. See here as to how the press handled the fiscal mess, including lack of follow-up stories. This story suggests half-assed doesn't just apply to favorite "MSM" whipping boys.

BTW, the NY Daily News editorial board -- Liebermanesque sorts -- today becries her lack of experience. Fair criticism, but sorry, "names" like Clinton and Kennedy held the seat in the past, and they were largely just that -- names, who were question marks. Lest we forget. In the news section, we have an article on the "conservative gun fan." Oh. shut. up. Sigh.]
Her politics, perhaps reflecting her conservative district, cannot be easily charted along a left-right axis. She earned a high rating from the National Rifle Association and opposed efforts to extend state drivers’ licenses to illegal immigrants. At the same time, she favors abortion rights, voted to begin withdrawing troops from Iraq and to extend middle-class tax cuts, and she has opposed privatizing Social Security. She raises large sums of money from Wall Street, but voted against the first bailout bill last fall; that vote angered some Democratic leaders in Congress.

She was an outspoken supporter of Mrs. Clinton’s presidential campaign and has drawn financial support from prominent women’s groups in Washington, not least Emily’s List.

She has insisted, to the point of annoying Congressional colleagues, on openness in government, posting a “Sunlight Report” on her Congressional Web site listing her meetings with lobbyists as well as the names of individuals seeking government grants known as earmarks.

-- NYT Article

I was no favorite of the top two putative picks to fill Secretary Clinton's seat, Caroline Kennedy not appearing qualified, while Andrew Cuomo probably was, except to the degree he always seemed like a jerk to me whose biggest asset at times was his last name. I have an idea that one reason the (criticized) nomination process was so long, was that the governor wanted to get rid of her (done so messily) and her friends in high places made this difficult. BTW, the governor had other things on his mind, including an economic mess. So, Gov. Patterson can be open to some criticism here, but not quite as much as some supply.

Anyway, I supported him picking someone other than these two, not having a strong preference on what one. Though Rep. Kirsten Gillibrand was basically out of my radar until last night, she seems like a good choice. As an early TPM announcement succinctly noted:
So Paterson gets to a) court women voters,* b) court upstate voters, and c) recruit a candidate who can bring in a lot of money in case of a tough race.

Some don't like her, suggesting she is but a Blue Dog. She does call herself one, it seems largely on fiscal grounds, but relying just on that label does her something of a disservice. See, e.g., her Wikipedia page, providing a picture of an experienced and smart public official with various Democratic bona fides. Such as support from the senior senator from New York, who has a top role in the political side of the party's caucus. And, if she no longer has to defend a conservative leaning district, she vary well might vote more progressive in certain cases. In fact, some think it will be politically necessary. Rep. Gillibrand is no faux Democrat. As a Salon endorsement summarized:
But she has never voted contrary to the Democratic majority [well less than 10% of the time] and is a strong supporter of middle class tax cuts, ending the spying abuses of the Bush administration, ending the war in Iraq, repealing tax cuts to oil companies, reducing the interest rate on student loans, and reforming health care.

And, the NYT article adds she supports same sex marriage. What a loser! She also is pragmatically a good pick, outside the value she supplies to Patterson himself in 2010. Gillibrand showed herself to be a tough campaigner (bringing young blood and enthusiasm, the working mom angle not hurting) in a Republican friendly district, and honestly, it is only fair for the state to have one senator with whom upstate (more conservative) voters can be comfortable. The fact she is strongly gun friendly is unpleasant to some, but with Heller, she does not just have her district on her side. The realistic sort will realize that the best path would be to have a national policy that both sides can trust, and this includes having senators in our party that are friendly to gun owners. Sorry.

[She in fact singled out a strong opponent, whose husband was killed by a nutcase in a gun rampage on the LIRR, by noting her support for a gun support measure to keep guns from criminals and the like. Either way, I'm not going to resist her a pick just because she is a member of the NRA, though her opponent here has a not surprisingly strong distaste for that group.]

Sen. Gillibrand probably will disappoint me sometimes, but it is not like Sen. Clinton did not as well. I think she will do and suggests some smarts from my gov. It is understandable that some progressive sorts are disappointed, but at the moment, I think they are overdoing it a bit.


* On a thinly related basis, here's another one of those charming personal interest entries that Salon provides fairly regularly. Also, cute footnote: Rep. Gillibrand worked until the day she gave birth. A Palin we can believe in?

And Also: Honestly, I'm rather annoyed at the heavy-handed coverage of this pick. Some news commentator on Keith made a crack about her chairing some obscure farm committee in the House. News flash: N.Y. has farms and dairies, she's a junior member, and someone has to chair such things! Another in an earlier local newscast basically knew nothing about her. I found about her in about ten minutes Thursday night. And, I'm not paid to go on the air and talk about politics.

Joe Conason, who is a good guy but has some lulls (and the fact Clintonites were apparently annoyed by the selection process might factor in here), including criticizing her PayGo stance. Uh, Joe ... I recall this being a draw for Dems, how fiscally responsible they are vis-a-vis Republicans. And, it doesn't mean that you never compromise, such as in emergencies like now. Likewise, what the hell is this lack of "independence and intellect" business? Her resume alone suggests intellect, even if her press conference was a bit rough (e.g., President Obama called in the middle of it, but she finished it first, leading the governor to joke "please call back" ... Rachel Maddow covered it).

He's upset at her being "conservative" but she isn't "independent?" And, then he suggests (sneers?) she is "supple" enough to get high ratings from both the ACLU and NRA. Huh? Not only does the ACLU ratings (not alone btw on that side) suggest she is not soooo conservative, it doesn't really clash with the NRA. Many support both, stereotypes aside. I raise my hand here. He also sneers that her support for same sex marriage seems like a jane-come-lately opinion. Shocking how that now she is a state-wide officer, she would tweak her positions as compared to when running for a conservative seat. Anyway, she did support an employment discrimination bill and hate crime legislation in this area. Soooo conservative.

As to clashing with Paterson, I assume this doesn't mean her various loyal Dem votes (usefully ignored by the tedious spin jobs like his). And, uh, tough fiscal choices HAS been a priority of the governor. As would be trying to win in 2010, which would include supporting someone more popular upstate (and who would be on the ticket with him). Others have also noted that politics -- including one person being key to the N.Y. delegation and N.Y. likely to lose a seat in re-districting anyway -- could explain not picking some of the other choices.

Again, the whole thing could have been handled better (though the time it took etc. really didn't matter too much to me) and the choice might have been better (but, on balance, it actually is not really a bad choice at all), but this knee-jerk response, some from people I respect, annoys me. As to Rachel Maddow saying it should be up to a vote, fine, the N.Y. legislature should do that. Have the governor fill the seat temporarily, and we can elect someone in November.

But, we don't have that now. She referenced Illinois too. Well, there, the Senate DOES have the power to judge appointments, and could have delayed things further. IMHO. We have been down that road before, and not just here!

[Update: I should note here that this is in reference to the U.S. Senate and its delay in seating Burris, which was appropriate, as I noted in a few earlier posts.]

Thursday, January 22, 2009

Herring Case Dishonors Privacy Rights

And Also: The Jets' QB wasn't selected on merits to go to the Pro Bowl, though like the All Star Game, that is partially based on celebrity / past glory. So, it is nice really -- especially with his late season problems -- that Kerry Collins will go in his place. Today would be a symbolic day to do it, see below, but Obama should honor Roe's anniversary soon enough.

The corrupt election of 2000 brought many things, but one was the ability of the winner (after re-election that was fruits of the poisoned tree) to nominate two key justices to the U.S. Supreme Court. Consider if Al Gore won and was able to pick a new Chief Justice and a replacement to swing vote O'Connor, instead of someone who assisted in preparation of the wrong side in Bush v. Gore and the one person who decided to not show up for some reason when Obama/Biden visited the Supreme Court. Two people, who will likely be with us for some time, maybe even twenty years or more. Furthermore, the immediate concern is but replacement of "liberal" justices. That is, holding the line. It is on some level a tad bit depressing. So, like the Dixie Chicks say, I'm not ready to make nice. Sorry, Obama, I'm looking to the past too.

The importance of just the O'Connor vote is suggested by how her replacement voted in two areas: the deciding vote in the "partial birth" abortion case and in the continuing abridgment of the exclusionary rule. Justice O'Connor concurred in a predecessor to the recent case on this subject to reaffirm that she agreed with its importance, even in the area of computer databases. It is often a risky bet to decide how she would vote, but one very well might think the 5-4 Herring v. U.S. (thus federalism wasn't particularly at issue) would have gone the other way with her on the Court. Surely, if there were two Gore justices, it probably would have. The school choice case a couple years back also very well might have been different. And so on.*

Herring is yet another ruling that in effect bad mouths the exclusionary rule while admitting it is still around. In the "no-knock" warrant case, Justice Kennedy concurred in part to send a message that Justice Scalia's bad mouthing should not be assumed to mean that it no longer is relevant. All the same, the breadth of such a "message" is unclear, in that Kennedy after all concurred with the majority. Still, it's helpful for lower courts to have such things to hang on to when they decide matters where there is some wiggle room. And, faux or not, Roberts minimalism at the very least provides an opening that Scalia/Thomas often wish to slam shut. Concurring opinions and such are all part of a chess game, not just a chance for judges to hear themselves talk ... though they can be interesting on that level alone.

Anyway, Herring continued the bad mouthing, talking about the "marginal" value of the rule in various cases and how it really isn't constitutionally required, just a remedy for violations. As noted in this essay, we hear of it being a "last resort," a clear wink that one should bend over backwards to ignore this "technicality." And, furthermore, as the headnotes suggest: "The fact that a search or arrest was unreasonable does not necessarily mean that the exclusionary rule applies." So, even if there is an "unreasonable" search or seizure, the resulting evidence might be admitted. The opinion emphasizes how various key rulings involved particularly heinous practices, clearly suggesting some sort of balancing test, not a rule against warrantless searches were involved. This is simply spin that Roberts might have learned from his predecessor, who was known to play precedent this way too. [See, e.g., The Brethren.]

It is left to Ginsburg this time to remind what exactly is at stake here, what exactly is the logic behind a rule that a majority -- to different degrees -- of the Court simply doesn't much like. She was down this road before,** as was Breyer [no knock warrant dissent], Stevens, and many others. Lest we forget Mapp v. Ohio was written by a former Attorney General, one conservative (e.g., dissenter in Miranda) in various respects. Or, how about a predecessor, Robert Jackson [per Stevens, who has a longer quote]:
Courts can protect the innocent against such invasions only indirectly and through the medium of excluding evidence obtained against those who frequently are guilty. . . . So a search against Brinegar's car must be regarded as a search of the car of Everyman.

As Mapp noted, sometimes the guilty is let free, but the law does it. The exclusionary rule was firmly applied to the feds almost a hundred years ago, in part because the judiciary should not be tainted with illegal evidence. Justice Holmes repeatedly made that point, including in his own dissenting opinion in the famous Olmstead ruling. A criminal should not benefit from his/her crime, even if it is the government. Justice Ginsburg reminds us that the exclusionary rule also reflects the deterrent effect of tort law, including when dealing with the acts of underlings. Schools are liable for discriminatory acts of teachers after all. And, as Justice Stevens once noted: "Society, rather than the individual officer, should accept the responsibility for inadequate training or supervision of officers engaged in hazardous police work."

Today is the anniversary of Roe v. Wade, the most infamous recognition of a constitutional right to privacy. Its infamy in some quarters is in part a reflection of the lack of respect or even understanding of the underlining principles at stake. This connects to my recent citation of an article discussing how woefully uneducated we as a society are about scientific matters. The seminal case in this area, of course, is Griswold v. Connecticut. The case was not just new law. See, e.g., the concurring opinions in Roe itself and Doe v. Bolton as well as the dissents in Poe, and Griswold itself. It honored a "right to privacy" based on precedent, including Mapp v. Ohio (whose author joined Douglas' opinion in Griswold), which applied the exclusionary rule to the states. As with Roe, the security of privacy there was no less important because the path to recognizing it is not blazingly obvious.

If the Supreme Court will consider an important security of the privacy specifically honored in the Fourth Amendment as largely of "marginal" importance, privacy overall is in danger. Herring's application of this trend to computer databases, of growing concern as shown by acts of the Bush Administration and its congressional enablers, only makes it oh so more topical. As Obama noted respecting openness of presidential records, just because the law might allow the opposite, we should not ignore that the opposite path should be our default. Restraining violation of our privacy and governmental action that threatens it should not be a "last resort." As with Obama taking the oath a second time because a word was said out of order, better safe than sorry.

The dangers of governmental officials, especially the police, making mistakes (and the Court here didn't even think some negligence was enough) because of bad computer data is well known to "Everyman." But, the majority was fleshed out by justices appointed by an Administration with somewhat different priorities. Elections apparently matter.


* The judgment there was rather unsatisfactory. The case turned on Justice Kennedy's vote, one that rejected the plurality's stronger opposition to race conscious programs. But, he ultimately relied on relatively narrow concerns in striking down the programs at issue, concerns that Justice Breyer answered in dissent ... with no reply from Justice Kennedy. One was thus left with lack of clarity of what exactly would be allowed. I'm sympathetic to Kennedy's concerns, but he did not really answer Justice Breyer's strong dissent ("I must dissent") either.

Justice O'Connor would have probably had a stance around that of Kennedy, probably a bit more liberal, thus the result would have been noticeably different. Anyway, given Kennedy was the swing, he should have wrote the opinion, since his stance is in effect the law of the land anyway. The plurality claimed to have decided things on more narrow grounds, but its rhetoric -- which Kennedy rejected -- made such "minimalism" ring false.

** She dissented there, the same case where O'Connor concurred separately as noted above, specifically to address the Supremes going out of its way to strike down a state ruling, in the process setting forth a national rule of conservative flavor. Stevens has long opposed this path (see citation of Michigan v. Long, another Fourth Amendment case), including when accepting cert. might have led to liberal results (see citation of McCray v. N.Y., racially based peremptory challenges). Some consistency there.

Wednesday, January 21, 2009

Obama Promotes Openness: Online Version

My daily Secrecy News bulletin notes:
Some of the Obama Administration's initial steps towards greater openness seem to reflect more enthusiasm than careful consideration.

For example, the new White House web site now states* that "We will publish all non-emergency legislation to the website for five days, and allow the public to review and comment before the President signs it."

This does not make a lot of sense, since the White House cannot amend legislation that has already been passed by Congress or take any other action in response to public "review and comment" except to veto the measure. Public comments on pending legislation need to be directed to members of Congress, whose specific function is to represent their constituents' interests and concerns.

Congress should have such a resource and/or members thereof. Some might. One should not have to search the Thomas website (and then email one's representative/senator), which is not always a breeze, to get this sort of information. But, what is does is provide a back door measure to providing such a service. In various cases, the summer rush job to amend presidential surveillance powers comes to mind, Congress does not provide enough time before a bill is composed and the vote for its members to honestly be able to say they looked over the provisions. As a liberal congressman told Michael Moore in his 9/11 documentary, this is common practice -- who reads all of this stuff? Told in a chuckling way as in "now boy, get real."

A damning admission. The five day comment period would provide a window for the public, including relevant experts and interest groups, to examine the pending bills. They need not just tell the President of any problems. They could very well petition Congress. Likewise, if the bill is particularly troublesome, the President has the power of the veto (or more likely, its threat) behind him while pointing out certain measures that needs to be changed. The time also gives the executive department itself some time to look at the bill. In either case, there very well might be some technical problem, or "mistake" somehow sneaked in.

The practice also provides the President assistance, in at least a symbolic but also likely in various cases in a concrete way, when deciding whether or not to veto. And, when the President vetoes, he has the ability to explain why. Public comment, especially in touchy situations, can be used as a resource here. Again, this is not just the people at large, but those specifically apt to providing opinion. It might also help with signing statements, as in the right sort, including ceremonial comments and statements of purpose. Finally, it might provide useful information on how the executive might execute the law.

True enough that the ultimate value might be symbolic, particularly of openness. This is no small matter in itself, as suggested in an interesting recent article on the nature of Obama's reading:
In college, as he was getting involved in protests against the apartheid government in South Africa, Barack Obama noticed, he has written, “that people had begun to listen to my opinions.” Words, the young Mr. Obama realized, had the power “to transform”: “with the right words everything could change -— South Africa, the lives of ghetto kids just a few miles away, my own tenuous place in the world.”

Much has been made of Mr. Obama’s eloquence — his ability to use words in his speeches to persuade and uplift and inspire.

Wanted to cite that article somewhere! Anyway, openness in government, referenced in his inaugural, is essential. How can the people rule if they do not know what their governmental representatives are doing? And, participation -- like voting -- occurs in small ways and in big. And, the latter feeds off the former. All the same, the idea is useful on its own. The very idea of having a few days of thought and comment is great.

The principle should be applied writ large; think of it as a sort of "blogger principle." So it seems suitable to end by citing a blog on the matter:
Information will not be withheld just because I say so. It will be withheld because a separate authority believes my request is well grounded in the Constitution. Let me say it as simply as I can, transparency and the rule of law will be the touchstones of this presidency.

-- President Obama

Let your actions give force to your words. Your time is now.


* The relevant blog entry states:
Participation -- President Obama started his career as a community organizer on the South Side of Chicago, where he saw firsthand what people can do when they come together for a common cause. Citizen participation will be a priority for the Administration, and the Internet will play an important role in that. One significant addition to WhiteHouse.gov reflects a campaign promise from the President: we will publish all non-emergency legislation to the website for five days, and allow the public to review and comment before the President signs it.

Query: what is "emergency legislation?" The word has been in effect abused for years now, after all. I think we have a reason to demand more specificity these days.

Tuesday, January 20, 2009

A bit more ...

Watching Keith tonight, I'd add two things. He had Melissa Harris-Lacewell, professor/social commentator, who was recently on Maddow as well. Both times she was dressed to the nines -- she's in town and noted it was "ridiculously cold outside. ... A cold, bright, brand new day." Second, Ken Burns suggested we are starting a new age. Don't know, but darn, we are living history. History is not just in books.

President Barack Hussein Obama

And Also: To toss a bit more, Obama has asked for a suspension of the pending Gitmo hearings and a halt to pending Bush orders to review them. See here for the change to the "war on science," and what it has wrought. Well, "normal is now relative."

As for our common defense, we reject as false the choice between our safety and our ideals. Our Founding Fathers, faced with perils we can scarcely imagine, drafted a charter to assure the rule of law and the rights of man, a charter expanded by the blood of generations. Those ideals still light the world, and we will not give them up for expedience's sake.

-- President Obama (sic) (see also)

The links are to various fans (including at least one conservative leading sort) of his inauguration address, one noting it was "F**ing cold out there!!" and liking this bit:
To those who cling to power through corruption and deceit and the silencing of dissent, know that you are on the wrong side of history; but that we will extend a hand if you are willing to unclench your fist.

Greenwald is right to remind that nice words also require action. But, the people you pick mean a lot here. I have often noted that personnel is an important part of the presidency. This bit of news made me lol:
Lederman's co-blogger, Yale Law School Professor Jack Balkin, reports that Lederman will also be in the OLC, working under Johnsen and Barron, as Deputy Assistant Attorney General in the Office of Legal Counsel -- John Yoo's former position.

It's like Yorktown 1781; the world has truly turned upside, hasn't it? Well, not really, but enough to warrant some excitement, and yes, hope. Some, at times with a tad too much vigor, are worried about the spectacle and cheering for Obama, the man. And, we should be cautious. The selection of Rick Warren -- who did okay, but simply didn't look like he belonged* -- suggests that, as will other more substantial choices. But, just as a bit of spectacle works, there is reason to celebrate.

People aren't as naive as some make them out to be either. These include supporters of Obama, who are wary about criticism applied without perspective, or by certain parties. Well, we now are supposed to note, without it being deemed some strange thing, that Barack Hussein Obama is President. So says the White House website, which even has a blog. Going there, we are told:
Moments ago, in his first official act since taking the oath of office, President Barack Obama issued a proclamation, calling on Americans to serve one another and our common purpose on this National Day of Renewal and Reconciliation. Check it out below, or read it on the WhiteHouse.gov proclamations page.

Fitting. It made sense that Bob Gates was the one kept away, since no other Obama Cabinet members were confirmed at noon. Some have been now. Biden was sworn in, flawlessly, by Justice Stevens. Cheers! Obama/Roberts had a harder time of it. Ah well -- no one is perfect. Anyway, isn't the Constitution whatever the Supreme Court says it is? I guess here, it is up to the Chief Justice. BTW, I like John Quincy Adams' choice to swear on a law book, since that was his true master as President.

As we known, Michael Newdow et. al. did not prevail in their lawsuit. Still, Obama noted in his inauguration address:
For we know that our patchwork heritage is a strength, not a weakness. We are a nation of Christians and Muslims, Jews and Hindus--and non-believers.

Did not the previously (ah) President once wonder if atheists could truly be Americans? Not that I'm a big fan of that wording either. Not to quibble, but there are other religions than those four. Plus, even if you don't believe in God, that doesn't mean you don't believe in anything! Who truly is a "non-believer?" Oh well. Better than some do. Let's end as the IA did:
America, in the face of our common dangers, in this winter of our hardship, let us remember these timeless words; with hope and virtue, let us brave once more the icy currents, and endure what storms may come; let it be said by our children's children that when we were tested we refused to let this journey end, that we did not turn back nor did we falter; and with eyes fixed on the horizon and God's grace upon us, we carried forth that great gift of freedom and delivered it safely to future generations.

Oh, Aretha had some silly headgear and that poem was a bit silly. And, Mr. President, one guy was President in separate terms, so there have been forty three people serving that office (a few others also took the oath on the death of the acting President without being elected to the office, so more than 44 took the oath overall; at least one affirmed). But, hey, we all are human. Some are just a tad bit more powerful ones.

Good luck.


* Rev. Joseph Lowery showed how it should be done, with some humor and avoiding the sectarian touch of using the Lord's Prayer, including an ending that the President on West Wing once noted was particularly sectarian. A West Wing marathon was on, a Hispanic winning the presidency around when a black one was sworn in, the fictional swearing in occurring shortly before noon ... Hawaiian time.

Hours To Go ...

Perhaps understanding them too well, Bush commutes the sentence of two lawless border agents / heroes of the Right (and a certain senator from California). Oh, it's just the poor babies' long sentence. Nah, that won't cut it either. Meanwhile, another blogger is appointed by Obama, and guess who is new to TPM! All sorta connected.

Monday, January 19, 2009

Why We Must Prosecute Torture

We compromised with The Palmer Raids and got McCarthyism, and we compromised with McCarthyism and got Watergate, and we compromised with Watergate and the junior members of the Ford Administration realized how little was ultimately at risk, and grew up to be Paul Wolfowitz and Donald Rumsfeld and Dick Cheney.

-- Keith Olbermann (more at link)

Sunday, January 18, 2009

What's Up With That?

Update: With a bit of help from the refs, Arizona (dominant, weak, strong when needed; bad kicking by Philly) and Pittsburgh (stupid penalty helped them late) won. Quirky fact: 23 points scored three times in playoffs. Go Cards! (aka the underdogs)

Saturday, January 17, 2009

Life and Death

And Also: iCarly for some reason brought out Nevel again for the new episode today -- kid is getting old. Plot was a bit silly and not to be looked at too closely. The cupcake contest was cute though.

He [John Mortimer] also appeared on behalf of the London edition of Oz magazine, which had produced a “school kids” edition written and illustrated by student readers. Among other items that offended the censors, the magazine depicted the head of the children’s character Rupert Bear grafted atop a body drawn by Robert Crumb, showing Rupert in a state of sexual excitement.

“Doing these cases,” he wrote, “I began to find myself in a dangerous situation as an advocate. I came to believe in the truth of what I was saying. I was no longer entirely what my professional duties demanded, the old taxi on the rank waiting for the client to open the door and give his instruction, prepared to drive off in any direction, with the disbelief suspended.”

Mortimer, who did not just deal with law on a fictional basis (aka the Rumpole books), has died. The actor that played Rumpole already died a few years back. Mortimer's involvement in the referenced case is also discussed in The Trial: Four Thousand Years of Courtroom Drama by Sadakat Kadri.

Meanwhile, circle and life and all that, Michelle Obama is forty-five today. Book TV aired a 2006 appearance today of some guy named Barack Obama promoting his book. Strange name. Wonder what ever happened to that guy. Joked about running for President; but, he's young and black. Come on!

"Miracles" Need Help

Was the remarkable plane landing a miracle? It is true that luck and such factored in, including the nice weather and the particularly skilled pilot. Still, as Rachel Maddow noted in a great introduction last night, so was infrastructure and preparedness. Also, I read in my paper today that a flight attendant noted that other planes might not have had the rafts needed to deal with the icy waters. Certain things are, in some fashion, "acts of God." But, humans have a lot to do with things all the same. Lest we forget.

Let's Eat Chinese and Watch Football!

It's f-ing cold outside, but inside, it is totally cozy. I think this is how it feels to be in a sort of ivory tower, away from it all, not quite realizing how it is in the "real world." OTOH, if I open my bathroom window even a bit, the frigid air outside seeps in. This too is a useful metaphor, most likely. I'm not someone who complains too much about the cold really, since it is not like I'm going be out in it for too long. Short bursts traveling to subways or stores is not really a problem, and walking in snow (we had a bit a few times by now) is nice too. My apologies to those who suffer through this weather, but it is winter, so for the normal sorts, buck up.

[Update: In fact, the weather is exaggerated. Now, sure, it has been pretty cold at times, particularly late at night and such. But, I actually went out for breakfast mid-morning and it was rather nice. This even though it says it is in the teens on my AOL temperature gauge. Not that I would want to stand outside for an hour, or anything, but still.]

Staying inside in January is also normal on the weekend given the football playoffs. [I see the new MLB Network is on the air, but along with the Yanks, Dish Network does not have it. Do have NFL Network.] Problem is that so far the games were mega lame, top teams playing lousy, a few mismatches not helping. Falcons/Arizona and Chargers/Colts were actually pretty well played, though in the former case the Falcons fell off in the Second Half, and blew a great chance to have one last chance to win at the end. And, the Chargers had a bit of a fluke, many things going there way, though they made enough mistakes to keep the Colts in it.

It is unclear to me btw why the Eagles are favored this weekend, even with how good Arizona has been playing, and how they do well at home. The Eagles played good, but not great, in the playoffs. And, the Thanksgiving game was something of a fluke -- the Cards had to travel on a short week and the QB had something to prove. Besides, look at how the Cards did in their re-match with Carolina! I can see the Eagles winning, doing something like what the WC Giants did last year (btw, one Giants victim, Tampa Bay, lost a head coach, hiring a new baby coach now that Gruden is actually starting to get gray hairs), but favored? Meanwhile, I think the Steelers outmatch the Ravens, who were handed a gift last week, and not just by the officials on that no call on that delay of game moment late. Miami was outmatched too. Still, might be an upset.

Personally, though it would be nice to see the underdog Cardinals get there, I am not too gung ho about any of the teams. Not a big fan of the Steelers, but the Ravens' win annoyed me. No, it is not lingering problems with them being the Giants the last time Kerry Collins was deep in the postseason. It would be interesting to see Kurt Warner in the Super Bowl again. I was back and forth with the guy. Happy when he won the first time, glad the upstart Pats beat him the second, and now on his side again. Besides, like Collins, Warner had a Giants connection. Yes, his starting job didn't last long, but with the natural dislike of N.Y. fans of anything Philly (like Boston, that city is getting too full of themselves), the favorite on Sunday is a given.

A few more words on Serve The People: A Stir-Fried Journey Through China by Jen Lin-Liu. Lin-Liu is a child of first generation Chinese parents and obtained a fellowship allowing her to return to China. While there, she decide to try getting a cooking degree. Her adventures there is the concern of the first part of the book, along with her growing friendship with the "chairman" (more of an administrative position) there, a sixty-ish woman who survived the Cultural Revolution. Next, she interns at a noodle shop and an upscale restaurant, ending things with word of her moving in with her American ex-pat boyfriend and plans to open a cooking school of her own. Lin-Liu provides some local color and later on allows us a bit more of a personal window into her own experiences, her own life and feelings not quite discussed earlier on.

The title of the book is a pun of sorts, since "serve the people" was the motto of Communist China, a theme of the book being the changing nature of the country as it enters the 21st Century. [I still cannot quite get a handle on the fact we on in the "21st Century," which not too long ago implied space travel ala the Jetsons. See also, the charming B-movie that was on last night, Cherry 2000, involving a guy hiring a tracker -- played by Melanie Griffith!* -- to find parts for his busted robot girlfriend. Honestly, it was a fun movie. Took place about a decade from now, which probably will not quite be like that.] It also has many recipes, which is nice, though I cannot cook. Leave Chinese to take-out and restaurants, including the yearly movie/dinner deal a few members of the family do on Christmas.

I'm also somewhat like her fiance, not quite thrilled with expensive restaurants, though am a fan of dining out overall, and ambiance does count. Recently, I went to a decent enough Thai place, in the Bronx to boot. But, the $5 fried bananas was a bit much, ditto the receipts helpfully supplying 18 and 20% tip amounts. Movie theaters these days make much of their money on snacks, including items like soda and popcorn that costs them pennies. Drinks and desserts also provide a prime source of profit at restaurants, slices costing the price of whole pies, mixed drinks costing what a cheap lunch at a takeout place might cost. Or, am I sounding too cheap?

Is Bush really leaving office in less than 80 hours?!


* She had something of a disappointing career, after some promising work as a young actress, and good work in Working Girl and Stormy Monday, which came shortly after Cherry 2000. This was followed by some lame efforts, though Sidney Lumet directed her in Stranger Among Us.

Friday, January 16, 2009

Newdow Loses (and has a point) Again

And Also: I have in various cases seen our local bird population in action, not limited to the "flying rat" pigeon variety. But, it also has kamikaze sentiments, if the suggested cause of yesterday's forced (and remarkably successful) water landing is accurate. See also, that scene in the third Indiana Jones movie.

In this case, you claim to be standing up for religious freedom. What you are actually standing up for is a brief prayer recited in a pro forma manner as part of day-long celebration to mark the instillation of a secular ruler of an officially secular nation. You are standing up for the coupling of religion and state in a highly symbolic and ritualized manner. Is this a real prayer with a real religious message or just a by-rote exercise that is included because everyone expects it to be?

-- Rev. Barry W. Lynn

Michael Newdow has failed in his attempt at stopping CJ Roberts from adding "so help me God" to the "oath of office"* next Tuesday as well as the inclusion of clergy in the inauguration at the invitation of a governmental body. As a recent NY Post opinion piece noted, one need not be a "frightened atheist" to support Newdow, at least as a policy matter. The sectarian mixture of church and policy is shown only most blatantly in the Rev. Warren issue, one not saved somehow by use of a gay minister in a less important event earlier on.

Though judges will avoid it like the plague, he is also right as a constitutional one, at least on principle. Since constitutional law is also a matter of pragmatism and practice, this is not the end of things. Engel v. Vitale and other cases noted in passing that they did not deal "with the fact that there are many manifestations in our public life of belief in God." The cases generally involved schoolchildren or public sponsored religiously themed holiday displays.

One involved use of clergy at a state legislative body. More to point, but as Newdow notes here, not quite the same thing. A body's own proceedings is not akin to a national inauguration; the matter of children alone suggests a core difference. Also, not only did "so help me God" very well might not have a similar deep historical backing as such clergy, "[n]ot until January 20, 1937, was a prayer offered as an official part of the American ceremony of inauguration." Citations to "tradition" is overall a dubious enterprise, it a complex and ever developing thing. Something those who claim to honor it sometimes ignore.

Newdow here notes the "extraordinary" fact that three justices of the Supreme Court, including the then Chief Justice, expressly argued that the First Amendment can be limited to the "God of monotheism." Justice Kennedy separated himself from this part of the dissent, including it's [offensive] allusion to 9/11. On this matter, at least, the text of the Constitution as such didn't matter. The text is of interest to the current litigation, in part, the "oath or affirmation" set forth in Art. II.

Obama can say "so help me God," if he likes, but the Chief Justice cannot add to the constitutional instituted words. The specific words added are sectarian, and leads to both establishment and free exercise problems, while also being statutory problematic under the Religious Freedom Restoration Act. Relatedly, it violates due process (liberty/equality) and public policy. Finally, the invitation of clergy is a governmentally sponsored (e.g., set up by a Presidential Inaugural Committee authorized by Congress) religious exercise ("the use of clergy to espouse the glory of God").

The mixture of church and state here is relatively minor though it is of the inch deep, mile-wide variety -- it is a rather important minor event. All the same, as shown in the Rev. Warren case, it is not free from problems. We take for granted something millions find not only ridiculous but downright offensive, including some who fully believe in the deity being honored. An event allegedly for us all, not a personal event for one V.I.P., should not do this. As the Supreme Court majority noted in the previously cited case:
We are centuries away from the St. Bartholomew’s Day massacre and the treatment of heretics in early Massachusetts, but the divisiveness of religion in current public life is inescapable. This is no time to deny the prudence of understanding the Establishment Clause to require the Government to stay neutral on religious belief, which is reserved for the conscience of the individual.

Adding a reference to God (especially when "swear" by itself implies God) and selective invitation of clergy is not really neutral. We can keep a certain perspective and still think that.


* Lest we forget:
Meanwhile, about Mr. Obama: while it’s probably in his short-term political interests to forgive and forget, next week he’s going to swear to “preserve, protect, and defend the Constitution of the United States.” That’s not a conditional oath to be honored only when it’s convenient.

Well, in theory ...

Thursday, January 15, 2009

Chinese Food ... Books

I don't just eat the stuff; I read about it! The Fortune Cookie Chronicles by Jennifer 8. Lee was a bit less enjoyable (the fortune cookie and world's best Chinese stuff bored me after awhile) than Serve the People: A Stir-Fried Journey through China by Jen Lin-Liu (see reviews here). But, both were good reads. Still, like when you get take-out, all books about food are not created equal. Like only one place around here makes good (vegetarian) dumplings!

Wednesday, January 14, 2009

Could Others Sneer At Bail Requirements?

Sure, many want Madoff in jail now because they basically assume he's guilty. This doesn't cut it. But, the guy broke the rules while on bail. So, why is he still free? Well, it's not like we have equal justice.

First, Fourth and Sixth Amendment Bits

Though not perfect (it is the NY Post), this opinion piece is on point on the problems with the use of clergy at the Obama inauguration -- no, not Rick Warren as such. Another in a line of "Apprendi" cases has an interesting split, Roberts and Alito divided, and Souter alone among the four dissenters. And, the dangers to privacy arising from computer databases was raised by the Supremes back in the 1970s. But, five justices were less concerned today. In fact, it might be even worse. Souter right in both cases.

Tuesday, January 13, 2009

Bonnie Hunt

Look up "nice" in the dictionary and you might find a picture of Bonnie Hunt, previously, a fairly regular guest on David Letterman. By chance, I found out she has a daytime talk show. She has that "Ellen" (straight though) vibe that makes her a good fit for such a role. Nice mix of funny and sweet. Good luck!

Basic Things Are Key

And Also: The Times of Harvey Milk is a 1980s Academy Award winning documentary that actually provides some less detail overall than the current movie. It does have some aftermath material, including extras on the DVD. For instance, a panel discussion on Dan White, noting it wasn't a "Twinkie Defense," but a matter of depression and in the heat of the moment. Also, the doc has an interesting tidbit about Milk's support of a certain voting machine that is a help to Asian immigrants. Things change, things stay the same. Sean Penn's performance matches up well, especially the voice, with the original.

It is bothersome that so many football teams played poorly in recent weeks, including those that previously played rather well. Such is life, but as with a certain bad call, we do as fans have the reasonable assumption that the alternative might occur. These people are making a lot of money; we are spending a lot of time and effort that in some fashion justifies it. Thus, when they fail miserably, we have the right to be peeved. Comparably, when certain other people use bad judgment, be they politicians or media or whatever, we should be annoyed. They get paid to care, to use good judgment. The acceptance of the opposite is at best ill advised.

People, especially in the age of blogs, do what these professionals do all over the place, just without the pay grade. If you are going to get so much money for doing it, you might at least do it with some degree of competence. This is especially the case at key moments of a game or on key points, such as not advancing the stupid meme that just because someone is "legally" a governor, s/he apparently can pick anyone s/he wants, in any way, since hey, s/he is just carrying forth his/her legally authorized duties. What if said person does this via bribery? A perfectly simple difference of focus, but one repeatedly ignored. Likewise, when officials blow a call at a key moment of the game, it rankles. Officials cannot always be right -- they are zebras, not gods -- but can try to be particularly careful at certain moments. Not all are.

This is also true, to an extent, in more run of the mill cases. You want a few simple things when you order food over the phone or at some public establishment. This does not always happen, and you have a right to be peeved when it does not. Rudeness, bad service, getting the wrong order, and so forth should not be TOO hard to avoid. And, it is all so tedious (or worse) when it is not, especially if you come home tired and want to simply order some food, or go out and pay a decent amount of money and/or don't want aggravation when you order a few things outside.

Health care is hard. Getting the right coffee and non-stale coffee cake without some degree of rudeness should not be. Not that I necessarily speak from personal experience ... Seriously, and this works on many levels, you can get pretty far following a few simple rules. The inability or lack of will to do so being so prevalent notwithstanding. I guess the two can be connected. Big solutions can be broken down and are necessarily tied to work down below. Good basic care, for instance, is essential for good health care. This involves rather boring matters, but ones that on an everyday basis is of special importance. Respect when calling to enquire about your son's cold or competence on fixing a local road helps one's faith the bigger jobs will be done too.

Anyways, Keith Olberman and Rachel Maddow had good shows yesterday, both putting special focus on President Bush's last press conference. The extended speak/response quality of the shows was particularly useful, since it provided a good point/counterpoint effect. OTOH, they were both a bit too amazed at the nature of the press conference. It was no surprise, though the event put it in better display than many other things, that Bush spun things his way, and in effect created a little personal universe that didn't match with what many (most?) others saw. How else does a person survive, after all, especially when something like 75% often deem him a lousy President

BTW, RM in particular can call "bs" on the response to Katrina. Guest hosting for Al Franken that week, she was in the middle of the storm, so to speak, when it happened. Her basic competence and passion, without some of the baggage others brought -- though still having her own personal style, even if mixed with policy dork -- shined through. It is through such efforts that she actually earns her paycheck. I sometimes have problems with her; though sometimes it is really a result of the structure of the shows and stations she works for, but as a whole respect her job performance. And, it helps that I think she honestly would be concerned if I felt otherwise.

Consistence competence, even without bells and whistles, is kind of hard. We do deserve it all the same, but also should keep in mind how much respect it deserves.

Monday, January 12, 2009

"But It's So Hard!"

And Also: Some sneered about how much the Burris sideshow is concerning people as compared to other more important things. Suddenly, political gossip and the like, after thousands of years, is supposed to not be popular? Oh shut up. Anyways, the sworn testimony matters, and they pointed themselves in a corner. Still, Burris comes off as a boob, more concerned with himself than the good of the state/party. Charming replacement for Obama. BTW, the discretion to not seat the guy includes choosing to seat him. And, sorry, I still think they could have (rightly) delayed it until a new governor was in power. Bet Burris might have been re-appointed too. But, they hung everything on a triviality, and Burris is a crafty schmuck.

To expand my last remarks ...
I think most of us knew the "campaign rhetoric" would be the high point of the administration. It always is. The greatest accomplishment, in my opinion, is the fact that the campaign rhetoric actually won the election! That is real change. That means the American people actually want these changes, even if Obama can't deliver (which we should have known he couldn't to begin with). It is time to stop the worship and deification of Obama. The Rock Star Tour is over. He is a transitional and symbolic figure in progressive politics, but anyone with any understanding knows he only represents a small step in the right direction. He isn't big enough, experienced enough, or rich enough to fight the standing forces in our corrupted government. Don't get me wrong. I love him. He is our greatest achievement. But this is no shocker.

If we are serious about change, we have to begin a new generation of activism for a new set of circumstances, and just keep pushing.

-- JamesTX

This basic truth should not be lost. It too often is or appears to be as some try to argue Obama is basically just like the "old boss," or when he does something wrong, it is trivial, and how dare we criticize someone -- at least he's not Bush, or he's competent, or he will do x, y, and z. Tired as some of the top seeds looked last weekend. Obama et. al. are a serious change, they are seriously better than various alternatives, and we should be quite happy in various ways about the fact. But, we cannot ignore his limitations, personal or structural. Understanding why someone does something of a dubious nature is not the same thing as accepting it. And, the breadth of what is yet to be done, now that we have a better shot at doing it, is key as well.

Obama opens up a possibility that is not here yet. It will require a lot of pushing, especially as Digby notes, "consensus" is the fruit the snake that tempts many who count (those proverbial "villagers," use required to join the kewl progressive blogger clique), including Mr. Consensus himself, our new President next week. (Seriously.) Thus, the goal posts are moved, and compromising basic values are not only deemed unfortunately necessary, but probably the right path to go. We can provide Obama examples, of course, such as civil unions. He does not simply see them as compromises, but provides personal support for them. More to point (NYT article):
A new president doesn’t want to look vengeful,” said a former Bush White House lawyer, Bradford A. Berenson, who was a Harvard law classmate of Mr. Obama and has represented administration figures as a private lawyer, “and the last thing a new administration wants to do is spend its time and energy rehashing the perceived sins of the old one. ...

Mark Lowenthal, who was the assistant director for analysis and production at the C.I.A. from 2002 to 2005, said if agents were criminally investigated for doing something that top Bush administration officials asked them to do and that they were assured was legal, intelligence officers would be less willing to take risks to protect the country.

Ah. This might confuse some, since some might think Obama was elected (along with growing Democratic majorities in the Congress) to "change" the mind-set of the Bush Administration. IOW, why should the fact the people who lost oppose the path, think it "vengeful," f-ing matter? Oh wait, I'm being disagreeable. Note also the "I'm just following orders" defense.* The "if you prosecute it will threaten the country" line. This is the SAME BS we have been dealing with for years here. The rule of law is an extravagance we can simple not afford. Likewise, we will have to deal with people trying to make us feel stupid. This too is getting old:
It is more difficult than I think a lot of people realize,” Mr. Obama said, “and we are going to get it done. But part of the challenge that you have is that you have a bunch of folks that have been detained, many of whom who may be very dangerous, who have not been put on trial or have not gone through some adjudication.”

So, when Obama promised to close Gitmo within one hundred days or filibuster a FISA amendment with immunity against prosecution, he was talking out of turn. He didn't study the matter enough. Now, many who support closing Gitmo right away (personally, my concern is the rule of law -- the locale was not really the issue; some isolated location that followed the law made sense) or thought that immunity would block perhaps the only serious path to learning what happened and provide some justice just don't understand. They include well educated and practiced, in many cases more so than Obama (no offense implied, mind you), individuals. But, you just don't realize. It is really hard. Yeah, I know. Being President is hard. Just ask Bush.

The fact that Obama brings a lot to compensate for such b.s. helps. Thus, opponents of his equivocation [for the moment, if "somebody has blatantly broken the law," they should be prosecuted; but, this applies to many who simply won't be ... so how seriously can we take it?] need not just latch on to things that the honest person would admit is sort of lame. Hey! He didn't completely say the matter was taken off the table or anything! Sure, he passed the buck to Eric Holder (who serves at the pleasure of the President, where the buck stops), etc. But ... Anyway, the opponents can not only point to various nice looking picks, but some (like for OLC head) who appear to be on record wanting more than Obama implies is his chosen path.

But, we only fool ourselves if we do not admit to the limitations of the Obama/Pelosi/Reid way. We can resign ourselves to the idea that it is the best we can do -- though I disagree, even given the resources available to us. We can hope that, really given we have more power now, our side will act much much better. Just wait and see! [So, Obama will do a 180 from the clear implications of his rhetoric? I guess, if he can do this on FISA, that might be possible. Not quite holding my breath, though.] Just like they did on their one sided support for Israel, only worsening the situation in the small way they could.

We will be sure to be admonished how "hard" it really is, how we don't have sixty votes, or how nasty Blue Dogs or filibustering Republicans must be taken into account. Don't eat the apple! Such things wasn't why assumed safe lib Senator Boxer genuflected in front of Lieberman in 2006, saying how great everyone thinks he is, and wondered why people were so upset about it. Or, how she, when over twenty minority House members asked ONE senator to join with them to challenge the 2000 election, at least providing a message that there was serious concerns not just about hanging chads but how black voters were treated, along with every other senator, ignored them. Did 2/3 of the Senate, including about half of the Democrats, have to toss Bush the keys to the car in 2002? Did Blue Dogs force their hand, or is that the actual sentiment that prevails?

Time and public pressure forced their hands somewhat. Boxer put forth a token effort in 2004, supporting an electoral challenge that had much less support. Congress' hand was forced, up to a point, on the war and other issues. Pressure groups are all over; it is up to our leaders to determine who counts. Bush insiders or supporters? Obama's dubious answer on investigations was raised because it was a popular question on his website. Our input is useful, if of limited importance. There are various paths to take, a true "middle way" might be not as strong as I would like, but possible, if we seriously tried. As the NYT piece on this matter notes:
There was no immediate reaction from Capitol Hill, where there has been a growing sense that Mr. Obama was not inclined to pursue these matters. In resisting pressure for a wider inquiry, he risks the ire of influential Democratic lawmakers on Congressional judiciary and intelligence committees and core constituencies who hoped his election would cast a spotlight on President Bush’s antiterrorism efforts.

We aren't just talking Mike Gravel here. Of course, if the POTUS suggests a certain path, the equation can very well change. The goal posts are moved. Cause/effect can be elusive. Obama sends a message, certain key groups/individuals hear it, and then Obama can point to their response. Hey, it's not me, it's them. My hands are tied! Two masters influence the pragmatic idealist. S/he will move in a certain path in part because of pressure from the relevant groups. This includes the people at large, his/her political base, relevant ideological and professional voices, and so forth. It is a continual practice, never-ending, and the battle will continue beyond any one person or term. And, it is one where perspective and principle is key.

Some are cynical about the immediate issue -- civil liberties and the like are not as important than economic well-being. But, not only is that too cynical for someone who truly claims to support the Obama side, the sentiment being attacked flows into that area too. Compromise here, and why not compromise on your benefits, health care, and rights as a worker. Or, is some bare minimum well being concern at issue here, a joyless fascist sentiment that should appall us. And, we cannot say "but he is not here yet." He will be here in matter of days, and it is rather naive to think he will turn on a dime, the rules suddenly changing after he takes his oath.

An oath not truly honored by some of the things he implies are the right path. We do ourselves no favors to ignore the fact just because he is as a whole the best choice, one we can be proud to call Mr. President. In this country, we try to fix the things worth fixing. Not just leave them be, since they aren't complete junk. If they are actually worth something, all the more.


* As Digby notes, looking the other way is a trap. As a CYA method, the dirty business will come out, so when you really try to clean up, your hands can be tied. You look like a total hypocrite.

This matter will also pop up in the international arena, as noted in the link provided in my last quickie entry. Do a half-hearted job, and you might leave yourself open to international investigation. Or, when you try to stop (even in a limited, Samantha Power soft power way) war crimes beyond your borders, some justified cynicism will arise. "But, this is different" will, sadly, not wash for some people. And, to the degree the borders of legitimacy can be hazy, you will not be given that additional benefit of the doubt the non-criminal might.