Franken In ...

Finally (Sotomayor connection). As to Star Trek, thought increases negatives. For instance, early on we are shown Kirk cheating a test in place to teach dealing with a "no win" scenario, which fans will recognize from elsewhere. This includes the fear that brings. But, the film never has him in a command role dealing with that. Spock in this respect comes off as a more complex character. Cf. Star Trek II.

Ricci Ruling

And Also: Some have criticized Star Trek in various respects, including the special effects. I complained about the loss of life. The changes of factual details set forth by the original series is open to personal taste, though the speed Kirk becomes a captain is harder to defend. On the show, he became captain of the Enterprise after years of service. The movie has a sort of "role playing" game quality. The movie is best not scrutinized too deeply.

The Supreme Court overruled the lower court in a 5-4 ruling.

It did without acting on minimalist grounds, for instance, as suggested by the Obama Administration (and argued for by some here), remanding it because summary judgment was unfounded. In fact, it basically argued the other way ... "There is no genuine dispute that the examinations were job-related and consistent with business necessity." Except to the degree four justices et. al. so disputed. See, Ginsburg's dissent. Kennedy, as is his wont, does not directly answer the dissent's points. [See also, Lawrence v. Texas.] More talking past each other on a race issue. This is the value of narrow opinions here.

In fact, some argue it was rather narrow. Other than "race was used wrongly here," various unanswered questions even for the firefighters themselves remain. Some argue the ruling is quite activist and that the Congress needs to act again to make things right. Or, at least, they should have remanded the case. Also, some suggest that the Court made it difficult for both governments and private businesses given its (arguably) more restrictive disparate impact approach. On balance, I think local governments should have discretion in employment cases of this sort if the results are reasonable, and Ginsburg appears to make the case that they are here. See also, my somewhat wary comments here. GG too has good stuff, including on "activism."

[Update: To toss in another analysis, this is a useful one that touches open the appellate court "error" issue. TalkLeft also recommends the analysis of the ruling here. Overall, the whole thing is instructive of judging, politically hot button topics, and confirmation fodder. Useful, but a bit tedious all the same.]

The value of this ruling as some sort of "gotcha" to Sotomayor is questionable, even if some will use it that way. She is replacing someone who joined the dissent. And, the Supreme Court had the power to move the law of "disparate impact" analysis in ways a lower court could not. Tom Goldstein of Scotusblog has more on the nomination point. This includes the majority's care in noting that "the issue was unsettled" and that four justices (at least in part) was on the panel's side. Overall, I never found this case that interesting; even if wrong, the city or 2CA panel were not patently unreasonable or anything.

The concurring opinion by Alito (joined by Scalia/Thomas*) is particularly striking. As Ginsburg early on notes, before her more extended analysis:

Never mind the flawed tests New Haven used and the better selection methods used elsewhere, JUSTICE ALITO’s concurring opinion urges. Overriding all else, racial politics, fired up by a strident African-American pastor, were at work in New Haven. See ante, at 4–9. Even a detached and disinterested observer, however, would have every reason to ask: Why did such racially skewed results occur in New Haven, when better tests likely would have produced less disproportionate results?

Alito's concurrence goes out of its way to discuss the of questionable relevance place of "Reverend Boise Kimber, to whom the District Court referred, is a politically powerful New Haven pastor and a self-professed 'kingmaker'" in all of this. He argues that there is clear evidence that dealing with this Jeremiah Wright sort was the real reason for the city's actions here. Cf. Ginsburg's discussion. Alito's concurrence also add a "cry me a river" component:

“Vargas devoted countless hours to study . . . , missed two of his children’s birthdays and over two weeks of vacation time,”and “incurred significant financial expense” during the three-month study period.

We are reminded as well that he is a Hispanic (but Hispanics as a whole basically sat this battle out), and his wife had to take a part-time job to care for the kids as he studied. But, he emphasizes, "sympathy" is not the touchstone, the law is. Sure. Just wondering, though. Is the implication that the black test takers did not study? Did they instead go to birthday parties and babysit so their wives' can not have to work? Scalia's "what if" concurrence is something of an extended aside, but this one (which happily Roberts did not join) was basically offensive.

And, goodbye and good luck Justice Souter ... and thanks for the service.

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* Scalia/Thomas have split in various cases this term, including this very day where they are on opposite sides (on some issues) of a 5-4 ruling, and both the voting rights and strip search cases. A third case, involving an anti-Clinton movie, was held over for reargument ... for September. Souter has retired, so will not take part. Thus, the path (4-4 possible?) is a bit strange. There is a chance Sotomayor will be confirmed, but she would not likely take part in the case even if she did.

Star Trek (SPOILER)

Overall, Star Trek -- even though it is not loyal to the show's timeline -- was pretty enjoyable. I particularly liked young Bones. It had problems, but two basic things hurt: the basic lack of women (Uhura excepted), and the number of deaths (destruction of TWO heavily populated planets) used to further what ultimately is supposed to be a fun blockbuster. On some level, this simply shouldn't be acceptable. The actresses playing Kirk and Spock's (rather good) moms very well might be missed if you don't look closely.

CRS Report on Sotomayor

And Also: Alex and Me is a charming account (an earlier book was more scientific minded; this one in effect a biography of sorts) about a scientist's language work with a parrot named Alex. The work demonstrated both bird intelligence and personality, adding to the realization that non-human animals well deserve to be deemed "persons." YouTube provides a chance for you to see Alex in action. Meanwhile, the "Blueprint for Accountability" series fuses "live theater and journalism" in a power way.

I earlier cited the ACLU report on Judge Sotomayor, noting some might question the source. Another report on her rulings has been written, this time from a more neutral source, the Congressional Research Service, which writes reports on a myriad of topics:

CRS is committed to supporting an informed national legislature — by developing creative approaches to policy analysis, anticipating legislative needs and responding to specific requests from legislators in a timely manner. With a rigorous adherence to our key values, CRS provides analysis that is authoritative, confidential, objective and nonpartisan.

The report suggests a by now expected line:

“Perhaps the most consistent characteristic of Judge Sotomayor’s approach as an appellate judge has been an adherence to the doctrine of stare decisis, i.e., the upholding of past judicial precedents,” the report states in its opening summary. “Other characteristics appear to include what many would describe as a careful application of particular facts at issue in a case and a dislike for situations in which the court might be seen as overstepping its judicial role.”

There is some suggestions of leanings:

She has authored several opinions in the criminal law area, and joined others, in which the Second Circuit ruled in favor of the police or government. On the other hand, she has authored opinions on behalf of the court that reach the opposite outcome. In addition, in cases in which Judge Sotomayor has split with her panel colleagues to write a dissenting opinion, her arguments have generally favored defendants. More than any other unifying characteristic, her appellate opinions in the criminal justice area, as in many other areas, demonstrate her strong adherence to precedent.

More evidence that she is an overall safe choice (fwiw), some comments on both sides that exaggerate notwithstanding. For instance, I find Jonathan Turley's comments at times downright unfair, as I noted in comments here. See also, his linked piece on her, where he sets up this "she is not thought provoking enough" test that other justices now on the bench (including Souter, probably) would have failed too.

Court Watch

And Also: Good discussion on why "trusting women" includes trusting them to make some bad choices. Farrah and Michael dies ... the celebrity deaths are starting to get closer to my age cohort.

Disclosed in the data retrieved from the transmitting unit, nearly instantaneously with the press of a button on the highly portable receiving unit, will be trips the indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on.

-- People v. Weaver

This essay is an interesting analysis of the NY Court of Appeals ruling that "held that before attaching a GPS device to a suspect's car and continuously monitoring the car's whereabouts for 65 days, the police should have obtained a search warrant." This ruling (joining a few others elsewhere with mixed results) provides a useful guidepost for addressing such modern surveillance techniques and has some clear parallels in respect to other types of high tech monitoring.

Meanwhile, the Supreme Court expanded its recent clear line rule in confrontation cases to disallow "certificates of state laboratory analysts stating that material seized by police and connected to petitioner was cocaine of a certain quantity" to be admitted without an opportunity of cross examination. Justice Scalia wrote the opinion, Breyer joining Kennedy's dissent for a different sort of 5-4 ruling. As TalkLeft notes, this right can be particularly useful in various cases, and its usefulness one might add helps defendants in other ways.

I have discussed the strip search case elsewhere (and birthday girl Sotomayor's own views*). So, I will not directly repost the information again. Overall, the opinion (by Souter) is fairly well written (if less protective as some coverage will suggest), straightforward enough for a non-lawyer school official (or student) to understand. Also, the girl (now woman) comes off as not some angel, but a normal teenager. Finally, there is some value for the Supreme Court to set some limits in the school context, even if Thomas disagrees.

[As an aside, empathy is not necessary to decide the matter, perhaps, but it surely helps. See my discussion here with emphasis on animals.]

Finally, the most divisive ruling -- Breyer read his dissent from the bench -- is one that will get less attention. In fact, fwiw, I myself was not aware of it until now. It involved "whether the Arizona school district has taken 'appropriate action' to overcome learning barriers for English Language Learner students" per a federal law. Breyer appeared to be most upset that the majority did not give more discretion to the lower courts. The case was previewed here.

A few cases are left, including two of the more controversial ones. It would not surprise me if Souter writes a dissent in at least one of them.

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* A Congressional Research Service report of Sotomayor's rulings brought to light one where she joined an opinion upholding a Vermont students' right to wear this t-shirt:

The T-shirt, through an amalgam of images and text, criticizes the President as a chicken-hawk president and accuses him of being a former alcohol and cocaine abuser. To make its point, the shirt displays images of drugs and alcohol.

H/t Secrecy News, which highlights this portion:

Perhaps the most consistent characteristic of Judge Sotomayor's approach as an appellate judge has been an adherence to the doctrine of stare decisis, i.e., the upholding of past judicial precedents.

But, don't worry -- some will continue to call her "activist."

Some Books

And Also: My own governor resigned after sending out for a hooker. The hooker was not really the problem -- the recklessness, especially by a sanctimonious asshole who sold himself as more ethical than others did him in. Republicans these days have the hypocritical thing going; the SC governor took it one step forward, being reckless with his office. This is why we should care -- the adultery is just gravy for those who love that stuff.

Sandra Day O'Connor was on David Letterman last night* (she already was on The Daily Show to promote her new civics website) to hawk her new children's book. Justices have been on more serious talk shows and 60 Minutes, but I am not aware of any on this sort of show. She was good -- O'Connor has a down to earth, no nonsense style that works well. The whole independent cowgirl thing also works with a touch of feminist, even if she might be loathe to use that word.

The book itself is about her getting a pet dog as a child. The book discusses how various other animals were unsuccessfully tried out first, including a coyote. Shreve Stockton might disagree on that front. She after all did raise a coyote in Wyoming, and did not even grow up on a ranch. The Daily Coyote (also a blog) tells the story, added considerably by her photography skills (which also helped on the monetary front). Then again, she did go cross-country on a scooter already. And, it was not easy, though she (and her cat) got along well in the end. Just check this out (more on her blog):



The book is a powerful look at the complexity of animal/human relationships (and life in the middle of nowhere), including those animals (or humans) that often are seen as the enemy. It also is a reminder of the complexity of concern for animal welfare. Obviously, you can not raise all the coyotes in this fashion. Also, it is striking that she got the coyote pup in the first place because her boyfriend -- who kills coyotes as an animal control officer -- saved it for her. He also hunts and helps hunters. His annoyance at how hunters disrespect animals underlines that there is not always a black/white approach to be taken here.

I'll talk about another animal book in a few days, but first read a short and overall well written one by Lynn Curry entitled: The Deshaney Case: Child Abuse, Family Rights, and the Dilemma of State Intervention. It is part of the "landmark cases" series that I have repeatedly found very good, including those that provide a historical background to the issues involved. The case thus serves as a window into a much deeper set of issues and events. For instance, here, the history of child welfare, particularly the role of women and experts (of varying social influences, from sociology to medicine) involved.**

One footnote: the child welfare officer denied telling the mother that she just knew one day Joshua Deshaney would be dead. The book takes a basically neutral approach, but that official (Ann Kemmeter) does come off as overly naive -- more concerned with protecting the integrity of the family as a whole and helping the caregivers than truly being aware about the danger of the child. The book notes that even liberal columnist Ellen Goodman agreed with the Supreme Court that this was not federal case material. But, Justice Blackmun's dissent still holds power:

the facts here involve not mere passivity, but active state intervention in the life of Joshua DeShaney -- intervention that triggered a fundamental duty to aid the boy once the State learned of the severe danger to which he was exposed.

Joshua fell between the cracks. The government doesn't want to claim liability for fear of too many more claims, which is understandable, but it should take responsibility all the same when things like this occur. The lawyers took it to federal court because the state remedy amounted to chickenfeed (fifty thousand dollars) given the cost of Joshua's care alone. And, the dissent has power: the state took responsibility via it's child welfare system, but when it very well arguably slipped up, it claimed none ... blaming the private actors.

One of whom served about two years in jail ... meanwhile, Joshua is about thirty, and living in an institution somewhere. "Poor Joshua!" indeed.

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* The latest non-Tiger Woods golf person in the news did the Top Ten. Very good ... great dry style.

** It's discussion of the "progressive" era underlines there is a difference between that term and "liberal." The first term suggests a scientific approach to government, one where experts have an important role to play. The "agency" system that has a lot of independence from direct democratic control fits in here. The opening for abuse and lack of adequate safeguards (just "trust us experts") is present. "Liberal" can have some or all of that, but can be more questioning and so forth.

Flies Drop Slower Than These Guys

Already without their starting shortstop, first baseman, setup man and two starters, the Mets must now try to stay in contention without Beltran, their All-Star center fielder.

The craziness continues as my June hiatus does as well.

Supreme Court Watch

And Also: I continue my June hiatus from watching Mets games; flicking the channels and seeing the team down yet again (extended rain delay -- we are getting more days of rain than your general rain forest -- meant it was on later than I thought) underlines the point. But, the Phillies are actually doing worse, so the Mets' lousy record did not stop them from gaining a game ... still two back. Just adequate to give hope, i.e., same old, same old.

The big news at the Supreme Court is that there is none [all the drama aside, this really does not surprise me here] -- they found a way around a potentially major change in voting rights law (though still sending a warning to Congress, without concurrences to temper things) 8-1. With Justice Thomas alone dissenting, in effect arguing that the current race based voting discrimination is not broad enough to warrant the preclearance scheme that requires federal approval when the covered areas wish to change their voting procedures. It once was, but times are much better now. [Update: Not quite.]

There are lots of problems, some racial, but Thomas might have a point -- the country-wide solution however is probably too radical, so the Congress went with a safe law that earned its place in history. The perfect is generally the enemy of the good. Anyways, the majority, via CJ Roberts, avoided the question, allowing the utility district to opt out. A result many voting rights experts deemed an unlikely interpretation of the state, except for just this reason. Judicial minimalism shows its face again with particularly sensitive cases and well accepted laws particularly likely to be treated special.* At times, this works.

[Update: But, overall, as noted in the footnote, the Court sent a warning to Congress and in effect an invite to lower courts to be wary of the preclearance rule. And, dicta or not, this brings with it eight votes. The glove of minimalism barely hiding the fist of activism? See also, the last abortion ruling -- narrow rule, open-ended chance for lower courts to strictly apply abortion challenges, which in practice provides an undue burden.]

[See also here, providing another connection of recently decided cases to Sotomayor. It also suggests the somewhat over the top tone of opinions.]

At the end of the day, if I were to be so presumptuous as to suggest a friendly amendment to Judge Sotomayor’s Berkeley statement quoted above, I would do so along the following lines: "I would expect that a wise Latina woman with the richness of her experiences would quite often reach a different initial conclusion than a white male who hasn't lived that life, and having both perspectives in any discussion is better than having either one in isolation."

Professor Amar uses a general discussion of the upcoming Sotomayor hearings to provide an extended discussion of this speech, for some reason not supplying a link to the actual speech. He uses jury and affirmative action cases to underline that her point as to perspective is correct. But, Amar fails to consider Sotomayor's other argument that there is some evidence that members of a discriminated class are at times more likely to recognize and act upon discrimination. This was the immediate context of the "better" (also might have been some reference to herself, thus the "I hope" in the original fits as a type of humility), including the references to first lead advocates in the race and gender cases.

NYT, continuing its extended and generally interesting coverage, has an article today about Sotomayors mentors, including those who now are her colleagues. Some have noted that Judge Diane Wood had a close but sparring relationship with her conservative brethren on the Seventh Circuit. It is less noted that Judge Sotomayor has some of that on the Second Circuit, which might suggest that she too has some intellectual chops to challenge the likes of Scalia. The article also references the Ricci case, including the dispute between Sotomayor's side and one of her mentors (and a dissent critics of the ruling point to), a mentor the article portrays as more conservative and even more "activist" than she. Interesting context.

Oh, and the dissenting judge is on record as a big supporter of her nomination.

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* This Breyeresque interpretation of statutory text in this particular case was joined by Scalia without comment:

Were the scope of §4(a) considered in isolation from the rest of the statute and our prior cases, the District Court’s approach might well be correct. But here specific precedent, the structure of the Voting Rights Act, and underlying constitutional concerns compel a broader reading of the bailout provision.

The law is messy, though at times the Scalia approach (with a sneer) tries to cloud the issue. Scotusblog and others have more extended analysis of this ruling, including the fact it is in effect a warning to Congress that it dodged a bullet, but others will come. A good interpretation of the law recognizes the complexity of things do not only pop up in cases like this.

Happy Father's Day!

Summer begins with a day for dad -- a nod to all, particularly those I know personally. A special memory for one in particular.

Judge Sotomayor In Action: Property Rights

And Also: Dahlia Lithwick at Slate talked about the Letterman controversy and I responded as you can see at the base of the article. My post received LOADS of hits and replies, mostly off base. The discussion overall raised one of my truisms -- certain things are so stupid that you miss many aspects of it. For instance, her tell tale wink and how a pro-life pro-family politician had her own daughter right under her get pregnant factored in.

Conservative critics of Sotomayor have repeatedly focused on a handful of cases as examples of how bad she truly is, including the Ricci case, a case that was supported by conservatives in the 7th Cir. that failed to incorporate the 2nd Amendment ahead of Supreme Court instruction to do so (the NY case involved nunchunks), and a property rights case known as Didden v. Village of Port Chester. The NYT, in a slanted piece, focused on that case a few days ago.

“[Kelo] touches some very sensitive nerves,” Judge Alito said. “Taking their home away and giving them money in return, even if they get fair market value for the home, is still an enormous loss for people.”

Putting aside that Sotomayor's panel (she joined a unanimous opinion) had to follow Kelo, like it or not, Didden was not about taking someone's home away. It involved a lot that he planned to use commercially all along. The local government decided to -- per Kelo quite legitimately -- redevelop the area via a private party. Didden claimed a failed negotiation over his property amounted to "extortion," but two levels of federal courts quite reasonably* didn't buy it. To cite the court on the most emotionally laden allegation raised:

Threats to enforce a party's legal rights are not actionable. DiRose v. PK Mgmt. Corp., 691 F.2d 628, 633 (2d Cir. 1982). Thus, even if Defendants did request payment in exchange for relinquishing the legal right to request condemnation, Plaintiffs have no recourse. ...

That Port Chester, G&S, and Wasser did meet with Plaintiffs and conveyed a proposal that Plaintiffs found unacceptable does not give Plaintiffs any substantive claims. Plaintiffs pursued their CVS site plan application and the CVS lease knowing that the Private Developers, under the LADA, might attempt to buy or condemn the disputed properties. [this factored into a holding that Didden did not meet the statute of limitations]

Meanwhile, in a (for some reason) less talked about case covering the same overall project, the Sotomayor joined a ruling that reaffirmed the due process rights of property owners, this time regarding the proper notice required. This ruling was quite significant:

Having determined that Brody was entitled to notice as a matter of law, the Court of Appeals sent the case back to the District Court to determine whether Brody had actually received the notice to which he was legally entitled, and whether Brody was entitled to an award of damages. Judge Baer** found that Brody had not received the actual notice due him, but held that the violation of his due process rights did not cause Brody any actual injury, and thus awarded Brody only $2.00 in nominal damages. According to the Institute for Justice, the settlement announced yesterday includes payment not only of the $2.00 but also of “an additional sum for the loss of [Brody’s] due process rights and a portion of the attorneys’ fees in the case.” A local paper reports that the total settlement amount is $475,002.

Maybe if the conservatives in the Senate can delay her hearings, they could find better material.

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* This discussion suggests Sotomayor's panel could have more carefully covered the case ... it agrees that the holding was correct, but thought a more detailed ruling might deal with problems in other cases. Quite telling -- critics appear to want judges selectively to be "activist" in support of their specific hobbyhorses. Some analysis of on Ricci make this point very well: predictions that Sotomayor's panel will be overturned in effect via a new application of the law.

** I remember him!

DNA Ruling and Souter's Constitutional Vision

And Also: A few days ago, Movable Feasts was referenced; it focuses on how food traveled over the centuries. For instance, a chapter discussed how olive oil was shipped in Roman times. One further comment emphasizing complexity of solutions: it suggested that given the quantities carried in ships and planes, in some cases, items shipped long distances can arguably be better for the environment than shipping small quantities of local foods short distances.

[As an aside, the Supreme Court today also overturned of a bankruptcy related ruling Sotomayor joined but did not write; "We reverse the judgment of the Court of Appeals and remand for further proceedings consistent with this opinion." It emphasizes the opinion is "narrow," and appears to focus on only part of what the lower court did. Meanwhile, CJ Roberts joined the 'liberals' to support a double jeopardy claim arising out of the Enron prosecutions.]

To my great disappointment, recent news reports indicate that the Obama Justice Department has decided not to reverse the Bush administration's decision to weigh in on Alaska's side in the case, District Attorney's Office for the Third Judicial District v. Osborne. As has been said many times, the Justice Department's mission is to do justice. It is not to seek a conviction—or to uphold one—at all costs.

What interest does Alaska have in denying Osborne access to this evidence, thus obscuring the truth? He has offered to pay for the testing, so the state will incur no financial cost. In any case, federal money is available to help pay for testing for those who cannot afford it. Osborne did not willfully bypass advanced DNA testing when he was tried 14 years ago; the sophisticated testing he requests did not exist then.

-- William S. Sessions, now a partner at the law firm Holland and Knight, directed the FBI from 1987 to 1993. Previously, he served as a federal judge and U.S. attorney in Texas.

The current DA of Manhattan agreed in an op-ed -- allow the DNA test, what do you have to worry about, especially since we assured the person is guilty. The Obama Administration, as is its wont (see update/video), supported such testing (in some form) as a policy choice. See also, its recent brief in support of DOMA, which it assures us it opposes, which goes that extra mile to not only defend the law (e.g., try to get rid of the case on standing grounds) but emphasize how damn sensible the whole thing is. Suffice to say, this was not somehow compelled by executive duty.

We are a country of good policy, not men. The Supreme Court today agreed [note Alito/Kennedy's opinion potential scope] on the DNA issue in a 5-4 vote. Justice Souter had a separate dissenting opinion,* providing a model for his successor to follow -- a careful respect for the law:

I would not decide Osborne’s broad claim that the Fourteenth Amendment’s guarantee of due process requires our recognition at this time of a substantive right of access to biological evidence for DNA analysis and comparison. I would reserve judgment on the issue simply because there is no need to reach it; at a general level Alaska does not deny a right to postconviction testing to prove innocence, and in any event, Osborne’s claim can be resolved by resort to the procedural due process requirement of an effective way to vindicate a liberty interest already recognized in state law

Souter also continued to provide a constitutional vision that helps add to his legacy. One that ideally provides a careful eye to determine if constitutional rights are being violated:

But taken as a whole the record convinces me that, while Alaska has created an entitlement of access to DNA evidence under conditions that are facially reasonable, the State has demonstrated a combination of inattentiveness and intransigence in applying those conditions that add up to procedural unfairness that violates the Due Process Clause.

Souter also got a bit philosophical:

Changes in societal understanding of the fundamental reasonableness of government actions work out in much the same way that individuals reconsider issues of fundamental belief. We can change our own inherited views just so fast, and a person is not labeled a stick-in-the-mud for refusing to endorse a new moral claim without having some time to work through it intellectually and emotionally. Just as attachment to the familiar and the limits of experience affect the capacity of an individual to see the potential legitimacy of a moral position, the broader society needs the chance to take part in the dialectic of public and political back and forth about a new liberty claim before it makes sense to declare unsympathetic state or national laws arbitrary to the point of being unconstitutional. The time required is a matter for judgment depending on the issue involved, but the need for some time to pass before a court entertains a substantive due process claim on the subject is not merely the requirement of judicial restraint as a general approach, but a doctrinal demand to be satisfied before an allegedly lagging legal regime can be held to lie beyond the discretion of reasonable political judgment.

He suggests, though does not feel the issue needs to be addressed here (given what the state already protects), that DNA testing has reached the point where courts can legitimately require it on due process grounds as a freestanding issue. This would be a result of his favored common law case by case approach, one that provides an continual evolution of basic constitutional principles (which stay the same, only their specific applications change). This is particular the case when applying "due process," but has wider implications.

[As for the implications of this specific case, see here; also coverage here. Courts are in place to help deal with those who fall in between the cracks, so the fact that many get protection all the same is of limited value. Ditto the fact this specific litigant was dubious on certain grounds -- the rule does not just apply to him. A means to prove innocence via DNA testing should also not rise or fall on questionable defense tactics at trial. And, the basic principle of the opinion goes beyond this specific issue of DNA testing, as Souter's dissent underlines.]

Souter has said he was guided by the vision of his predecessor, Justice William Brennan. Not a bad idea this time around.

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* Justice Stevens went a step further [also calling out Alito's concurrence for badly going out of its way to defend Alaska's side in ways that the state itself did not] and more strongly supported a right of DNA testing that Souter deemed unnecessary to address yet given the nature of the case, highlighting in the process his long stated belief that our basic rights are not a creation of the Constitution, but just recognized by that document:

The liberty protected by the Due Process Clause is not a creation of the Bill of Rights. Indeed, our Nation has long recognized that the liberty safeguarded by the Constitution has far deeper roots. See Declaration of Independence¶2 (holding it self-evident that “all men are. . . endowed by their Creator with certain unalienable Rights,” among which are “Life, Liberty, and the pursuit of Happiness”); see also Meachum v. Fano, [1976] (Stevens, J., dissenting).

A Justice Sotomayor is more likely to take the Souter approach, for good or ill, but I'm all for a strong libertarian voice on the Court ... it just is not reasonable to think Obama would select one. OTOH, her opinions suggest a tendency to carefully look at the facts of a case in such a way that she could very well call other justices on it when they spin them to their liking.

The Face On Your Plate: The Truth about Food

And Also: A good analysis of why Obama went too far in defending DOMA, especially since the claim very well could have fell on technical grounds.

Chiesa's answer is that the exemptions of and within these industries (whether such exemptions are officially designated as "exceptions" to anti-cruelty laws or as falling outside the coverage of such laws altogether) reflects the view (a view with which Chiesa himself takes issue) that some acts of cruelty are "justified" by the benefits to human beings from the consumption of animal flesh and products, from the process of hunting, and from the information that is gained from the use of animals in research. Despite these benefits, however, anti-cruelty laws recognize and acknowledge that the brutal treatment by people of animals is a wrong suffered as victims by the animals, even in cases in which the cost/benefit analysis permits such treatment to continue.

-- Sherry Colb

Some time ago, though as an adult, I became a vegetarian. My basic reason was consistency -- respecting those who hurt, taste alone does not justify the harm that goes into eating an omnivorous diet. The fact that, as discussed by Jeffrey Masson in The Food On Your Plate, it also has environmental and health implications (though health is not my primary concern) only underlines the point. Never was a supporter of hunting or fur.

Like those who are not perfect, this does not mean I at strictly vegan. This is largely a result of convenience, particularly when eating desserts. Vegan desserts are perfectly fine vis-a-vis others, but are not readily available. All the same, I do not eat eggs or dairy products generally, including pizza, cheese, or milk. Again, this does not mean every food I eat does not have them. And, though I repeatedly try to avoid it, at times my footwear had some portion of leather. All the same, I have obtained dress shoes and belts that are not.*

I can relate to those who view religion as a mode of life, every day acts a way to honor their God. My decision not to eat animal products (followed akin to people follow their faiths, imperfectly) is a moral choice in action. It provides a way for me to live my values and beliefs. It is not that difficult overall, even interesting, and provides me satisfaction. When you can do this, like giving blood every other month, it is an easy call. Living a good and satisfying life is far from easy, so you should take the easier stuff when you can.

There are many books on the subject of animal welfare and rights, particularly as it applies to the diet. Jeffrey Mason's The Face On Your Plate: The Truth about Food is a good a place as any. He provides a summary of the life of animals on factory farms, the environmental problems (including seafood), a reminder about how much animals are persons (with intelligence, culture, self-awareness, emotions, and so forth), a discussion of our denial of such facts, and a summary of vegan eating. Consider the five freedoms set forth by an UK committee:

Freedom from thirst and hunger
Freedom from discomfort
Freedom from pain, injury and disease
Freedom to express normal behavior
Freedom from fear and distress

Only a selective (and unprincipled) respect for animals warrants only caring about the well being of cute ones or ones you might have as pets/companion animals. The fact cows might be tasty does not deny that they are farmed and processed in ways that are not just environmentally harsh, but very painful for the animal. An article about harm to a pussy cat horrifies us. Millions of animals suffering for our palate does not. When this selective morality means the harm to humans in Iraq or whatnot, many (tellingly, only some) are uncomfortable.

Animals also deserve some degree of equal respect. Even if we like how they taste or look on our backs. We may laugh when Italians ban the use of fishbowls for goldfish. I never was too excited personally for either the taste (tuna fish a bit of an exception) of fish or joy of them as pets. But, since many actually enjoy them or comparably "lower" forms of life like snakes or whatnot, needless harm to creatures that do feel pain might seem wrong. Surely, if you are opposed to cruelty to horses or dogs, why not other mammals?

Or, even life as a whole? Rachel Carson is honored today for good reason. But, a journey begins with a first step. Care for animals, including by not eating them given what it takes to get to our plate, is a good one.

[Update: Checking out the reviews of the book over at Amazon, I might add that Masson's book is surely not the best analysis of the issue at hand. It is more of a personal beginner's approach (though his scientific background and wife being a doctor adds some weight). But, still, I think it is a decent approach that addresses the key issues.]

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* Factory farming points to the core of the problem, so that even those who are not strictly vegans have took a very large step. Modern seafood manufacture has many problems, including harm to animals more likely to feel than shrimp and the like (fish do clearly feel). The book does not reference animal experimentation, but suffice to say, there is a lot of unnecessary harm there, even if we allow a certain core.

Some support small farm raised alternatives, but as the Masson notes, it is unlikely animals could be raised for food without being harmed in the process. As with hunting over factory farming, yes, there might be less harm. But, it is unnecessary, not akin to some culture where they need to hunt or fish for food. And those who do tend to have more respect for animals and the environment than we do.

Masson himself is not a totally consistent vegan, eating the stray pastry with eggs or dairy, and imperfection does not mean the effort is pointless. This is not how humans operate. Finally, some raise the specter of plants having emotions or whatever. Putting aside the care for the environment as a whole is important, it is rather unlikely, and even if, animals are clearly more harmed by our consumption. As are we in the process.

NY Senate Update: Glass Half Full?

The latest is that one of the turncoats went back to the Dems, leaving a 31-31 tie. The Republicans are opposing a sane power sharing proposal (my own state senator involved in the deliberations). Overall, though the motives of the two turncoats are dubious (especially the lead one), some good just might come of all of this. Time will tell. BTW, why should this guy still control how his work is adapted decades later, especially when clearly new material results?

Obama's D of DOMA

Some, including Rachel Maddow (Monday), are upset at the Obama Administration's brief in support of DOMA in federal court. As they should: Obama had no obligation to defend it, especially since it is blatantly unconstitutional. At the very least, not as far as they did; for instance, some standing avoidance path, maybe, if weak. The full faith prong -- less ideal; the federal marriage rights stuff and red meat incest language? Uh no. Pissing people off here ... again.

Judge Sotomayor In Action: Child Porn

And Also: I am reading a very good short analysis (about 100 pages without notes) in defense of a developing understanding of general constitutional principles that points in a progressive direction. Keeping Faith With the Constitution can be downloaded for free though I had it printed out and bound at Staples for a reasonable price. [Update: General stuff at beginning better than somewhat summary examples toward the end, but overall, good reading. A "democratic test of time" approach becomes major theme.]

Emily Bazelon discussed a tricky sex offender case that short-lister Judge Diane Wood was involved in where she supported the rights of a convicted sexual predator. A recent article entitled "Sotomayor's Ruling in Child Porn Case Defies Liberal, Conservative Labels" suggests another sex offender case might be useful in judging Sotomayor's record. From the article:

Her decision, lengthy and detailed, at once shows an ex-prosecutor's understanding of law enforcement needs, an appellate judge's deference to Supreme Court precedent, and a liberal's empathy for a defendant ensnared by government primarily because his e-mail address was found in the wrong place.

It concerned a search warrant involving a child pornography investigation, particularly someone who allegedly accessed a website where one can download child porn. This access was used a FBI special agent to obtain a search warrant with the further fact that the person previously pled guilty to the offense of Endangering the Welfare of a Child used to show probable cause, which the federal district court judge granted. Judge Sotomayor wrote the opinion on appeal, deciding:

We are not insensitive to the need for law enforcement to have a certain amount of latitude in conducting criminal investigations. But, requiring the government to gather evidence particularized to the target of the search before the warrant application is made will simply focus law enforcement efforts on those who can reasonably be suspected of possessing child pornography. If this proves to be a hindrance, it is one the Fourth Amendment demands. ... [W]e find no substantial basis for probable cause and reverse the district court's conclusion in this regard.

[Various citations removed] Though the law officers found child pornography during the search, they did not have probable cause to search in the first place. The former crime was not only old, but not directly connected to the specific sex crime charged here. Access to a website, even if that could be proven, is not evidence of actually downloading anything. Overall, "Although Falso might hoard images of child pornography if he viewed and downloaded them, there is no allegation in the affidavit that he was in a position, or was otherwise inclined, to do so."

But ... the officers followed in good faith a search warrant. Per precedent, precedent I think surely dubious but which she was obligated to follow, Falso still is out of luck:

In short, said Miller & Chevalier partner Timothy O'Toole, "it looks pretty mainstream to me." O'Toole, a Fourth Amendment expert and board member of the National Association of Criminal Defense Lawyers, said that for Sotomayor to bow to the Leon good-faith exception is "what you would expect from a former prosecutor and a law-and-order judge, but really any judge would do that. She had to follow Leon." Once on the Supreme Court, Sotomayor might feel less bound to precedent, but it's hard to predict which way she would turn. "Opinions like this show you why the Supreme Court is so important," O'Toole said.

The limits of precedent is an important matter, since there is a tendency to dislike certain results that in the scheme of things are not controversial at all. This does not make Sotomayor's ruling correct, nor does it suggest there was no wiggle room here, but seems like a good example of her moderation:

Both parts of Sotomayor's opinion drew criticism from fellow panel members. Chief Judge Dennis Jacobs agreed with Sotomayor that the FBI agent's affidavit did not give probable cause for the warrant. But unlike Sotomayor, Jacobs said the FBI's misleading affidavit should have deprived it of any "good-faith exception." Judge Debra Livingston disagreed with Sotomayor on the sufficiency of the search warrant, but agreed with her that the FBI was entitled to a good-faith exception.

The 'misleading' argument appears reasonable, but far from slam-dunk. Some will suggest this is an example of her giving the police the benefit of the doubt. A reader of the majority opinion might disagree. Still, this case shows a recognition that the government can overreach, even when the ultimate end promoted is popular, and the person involved is clearly guilty. The defendant loses out here, but the analysis provides a guide to a future district court judge that very well might cause that one to win. This guide for future adjudication is particular important on the Supreme Court level, even if the needs of the specific litigants still must be respected.

Overall, the opinion is an interesting window into her jurisprudence.*

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* A contributor at TalkLeft, a blog on the whole often wary of Obama and includes defense attorneys on its team, provided an interesting comment as part of its analysis of Sotomayor:

It's encouraging to read that a legal aid lawyer who often gave Sotomayor "a plate of pasta or pot roast and a glass of scotch" after work offers this assessment:

"A lot of district attorneys thought they were doing God's work. But she saw it as a civic responsibility," [Dawn] Cardi said. "She was also concerned that if there wasn't enough evidence, someone shouldn't be prosecuted."

Scotch? She has also disclosed that she won some money gambling in Florida. I also didn't know scotch went good with pasta or pot roast, but clearly she likes to have some fun.

Letterman Again

And Also: After a new low yesterday, I think it would be useful if I took a break from watching the local NL team. Watching games so they could blow it late, hearing about the latest on the disabled list, or hearing excited calls [references to the skills of the other side] by the announcers of said team as the team falls apart yet again (must be hard to keep from boredom -- ho hum, they messed up ... again) is harmful to my health. Embarrassment.

A recent ruling by the New York Court of Appeals (highest court) held that a local nighttime curfew law "violated the substantive due process rights of minors to enjoy freedom of movement and of parents to control the upbringing of their children." An example of state courts having an important role in interpreting the law, lest we forget in the midst of the Sotomayor talk and references to the powers of the federal courts, particularly the Supremes.

But, why not just stay in and watch late night television? On that note, a bit more about David Letterman's Palin jokes. Keith is gleefully spending days on the matter, his usual habit of beating dead horses, but Salon and others have called David out while still noting that Palins are going overboard. As I noted earlier, Keith did the former too, but in effect thinks the Palins continue pushback is over the top. This would include comments like "It would be wise to keep Willow away from David Letterman."

Salon noted that:

"Slutty flight attendant" is not just a sexual put-down; it's a socioeconomic one.

I will say a bit more about this below, but this is a selective quote, the joke being about "buying makeup at Bloomingdale's to update her slutty flight attendant look." Another article, which links the one with that line, has a 'pox on both your houses' sentiment. Jokes like that and "Sarah Palin went to a Yankees Game yesterday … during the seventh inning stretch, her daughter was knocked up by Alex Rodriguez" are bad, but so was her response:

She's absolutely right that jokes like that contribute to an oppressive culture for women and young girls. But on this rare occasion when she's absolutely right about a couple of things, she can't just stop there. She has to blow straight past reasonable outrage and into disingenuous, over-the-top accusations.

That is, that Letterman really meant Willow, etc. The article is right to note that the apology was somewhat half-hearted, with the audience laughing, but he did apologize, and his tone was in part a result of that fact he thought it stupid that it was assumed Willow was the brunt of the joke. Or, that he was joking about the sexual abuse of 14 year olds. Two comments to the article are on the money. One spoke about the difference of the people involved:

The difference between the two to me, the difference between the two is their roles. Letterman is a comedian. Not one I particularly like, and I didn't find his recent Palin jokes funny, but a comedian. He made a joke. When it wasn't received well, he clarified and apologized.

Palin, however, is an elected public official and former vice-presidential candidate. She implied Letterman is a child molester, and when given the opportunity to clarify or apologize, she didn't. This is different from making a bad attempt at topical humour, this is an active attempt at defamation. Isn't she open to a defamation or libel suit for this? If absolutely nothing else, she more than overreacted to a bad joke.

The other focused on one of the jokes. Likewise, other comments suggested the jokes about Bristol (sic) were more about A-Rod and Spitzer, about their loose sexual ways, than about Ms. Palin. Not so sure this is totally true, since Bristol's pregnancy and so forth adds juice to the joke, but it's at least half-true. The discussion of the Palin joke hits home though, the criticisms really setting up a double standard:

Letterman didn't call Sarah Palin a slut. What he did say was perfectly accurate: that McCain/Palin/RNC spent a fortune to sexualize Palin during the campaign. This mischaracterization of Letterman's joke is as bad as Palin's.

What about the suggestion that there was a "socioeconomic" edge to the joke? It is not like he said a "stewardess" ... "slutty" was added, suggesting that stewardesses alone are not always slutty. To be honest, that image does fit the clearly intentional sexualization here. This includes the skirt uniforms traditionally seen among stewardesses and their use of glossy makeup. It seems a bit of a stretch to make this about class. A lone use of "slut" would be rather harsh, less funny, so they needed to water it down somehow. What should the writers have used here?

The audience's reaction during his apology (half-hearted or not, he spent the time to address the matter) appears justified. There is less here that meets the eye, especially when he admits to taking the path of least resistance in many cases to get a laugh. Clinton appealed to the MTV generation and had to deal with it when people did not give him the respect someone who was less low brow in various ways might deserve. Palin used her sexuality, and made her children into public figures (exploiting them in the process, particularly making Bristol/Levi into some nice couple, which bit her in the ass as events progressed), and people make jokes. And, she gets more air time.

Are some in poor taste? Sure. Is she full of herself? Definitely.

Orange Candy Slices and Other Secret Tales

And Also: These stories of lone nuts killing people are important, especially when the person murdered are one of a few providing an essential service. Still, let's have some perspective, and cover other broader issues (like health care) that leads to the end of lives of many many more.

I squeezed by the class, turned the corner and found myself facing an entire aisle filled with colorful religious candles. Feeling nostalgic, I picked out one with the Lady of Guadalupe. While I’m Protestant, not Catholic, these candles always remind me of a few years spent in Corpus Christi, Texas and, as writer Viola Canales says, of the “richness of its [Hispanic culture’s] traditions and rituals.”

-- El Rey Market

Pamela Karlan was a long shot, particularly because she is too much of an outspoken liberal without judicial experience, to fill Souter's seat. Her life partner is Viola Canales, who did a little of everything over the years. This led me to suggest she might make a good federal judge, if not justice of the Supreme Court. Not likely, but a diverse background like that, instead of another cookie cutter nominee (Sotomayor not quite that, though it is the prosecutor and judge side that is highlighted).

This includes a collection of short stories and a full length book, both honoring Hispanic culture among those living on the Mexican border via the perspective of someone who seems like a younger version of herself. Both at times having an adult perspective of events, including one story about a girl having her first period, and feeling angry about how unfair it is that boys did not have to deal with it ... not helped by a mother who was taught to feel embarrassed about the whole thing. We get the story through her eyes and then learn ten years later she found out why her mother was so uncomfortable talking to her about it. And, even through the children's eyes, we get perspectives of adults too.*

This is a nice approach, providing a window into a culture of which many have little knowledge, including its richness even when some might deem it low class and primitive. For instance, the practice of honoring saints and the power of food; there is also an important emphasis on family, particularly the wisdom of older members. The collection of stories supplying quick snapshots, making it a good resource of schools or those who like tasty morsels, not bigger feasts. She might have included a glossary of all those Spanish terms though!

But, that is what Babelfish is for, right?

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* Her full length book read as a thinly disguised autobiography (it was first person and the girl grew up to be a civil rights attorney), but the collection of stories had various point of view, including boys, girls, and senior citizens.

TV Stuff

And Also: While the NY Senate continues to look like a circus, some serious electoral business is going on in Iran. Limited discretion they might have, but this is more proof that Iran's complex public life warrants a lot more respect than some give. The new Pelham movie looks like an overdone re-tread, but this answers my old question of why the 6 train is going to South Ferry in the original.

She's bubbly and beaming, high-volume, with a flip of dark hair and a face like a lollipop. She irks as she endears, bemuses as she bewitches. She's a bundle of energetic contradictions, bursting here, retracting there. Her expressions blink and change like a neon sign. Her eyes are popping globes. And she just sold you a bunch of car insurance.

Count me a fan of the Progressive spokeswoman -- she is about as animated as that insurance gal. Also, didn't think "gay" when watching this ad. Live Nude Girls Unite! is on Free Speech TV. I liked it when it came out in the movies. Lots of haters of the characters having trouble in Army Wives over at IMDB, even of the daughter who lost her sister to murder.

Harsh! Even Keith O. thought David Letterman was too harsh when he had a top ten list that referenced Gov. Palin's slutty stewardess look, but jokes about Bristol and Eliot Spitzer and A-Rod didn't help. Letterman had one of his amusing extended talks at his desk over the matter. He made clear to the Palins that he was not talking about their younger daughter -- obviously, since reference to pregnancy concerned the person who was pregnant, and is now an adult.

Overall, Dave is too crude with his jokes at times (recall his "foreign cab drivers are smelly" jokes), but misconstruing what he said is not the way to fight them.* I also caught part of his recent interview with Julie Roberts on YouTube ... I am not always a big fan of hers, but she has had some great interviews. Clearly they hit it off, and it shows. Meanwhile, of what I saw of Stephen Colbert in Iraq, not some of his best material. His bit on Don't Ask, Don't Tell was notable for him doing it, but it wasn't really that good. Heart is in right place though.

With new shows coming up on cable and all, the usual summer lows are not quite as much in evidence these days.

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* Over at TPM, the general sentiment is that he crossed the line. But, I think this person has a point (see also later comment). Still, the "slut" and references to her daughter (any one) was ill advised at best. Dave -- as suggested -- did not really take the whole thing seriously ("hey, they are just jokes"), but maybe should have. Sarah Palin really does not need to look like a victim, does she? Or get any more exposure.

[Update: Keith did a segment on this tonight and reported that the Palins noted that only Willow was at the event referenced, so the joke might have confused things or something, but again, clearly Dave was not talking about her. Keith had a woman commentator on who underlined the older daughter -- with the backing of the mom -- has a very public abstinence campaign that, along with everything else, is open to some jokes. She is not simply some private person. Still, let's be honest, the apology -- with laughs from the audience -- was not exactly something the Palins was likely to be totally satisfied with.]

ACLU Report on Judge Sotomayor

In general, Judge Sotomayor’s judicial opinions reflect a detailed attention to the facts and a close regard for precedent. They are carefully reasoned but do not engage in broad discussions about constitutional philosophy or competing modes of constitutional interpretation. Because Judge Sotomayor's opinions are so fact-based and rarely stray far from well-established precedents, they are often difficult to characterize as either liberal or conservative. It is worth noting, however, that Judge Sotomayor has not written about many of the hot button topics that often dominate public discussions about the Supreme Court. Despite a lengthy judicial tenure, her opinions have not directly addressed a wide range of issues that frequently appear on the Supreme Court's docket, including abortion, gay rights, presidential power, and the death penalty.

-- ACLU Report on Sotomayor's Rulings

This is telling. It suggests that as a political matter, Judge Sotomayor is an ideal Obama judge. Obama, at least as a matter of message, thus far tends to try to avoid controversy, to take an approach that avoids both Scylla and Charybdis. Thus, a hard to pin down judge is right up his alley. So is one who has thus far avoided some hot button topics, in part because her circuit has few chances to decide some of these matters. And, with all the controversy over "judicial activism," Judge Sotomayor's apparent approach should have bipartisan appeal. Cf. Judge Diane Wood, who has a reputation (real or feigned) of being more of a "liberal Scalia."

As a resource for some who are worried about her alleged conservative leanings, I have already discussed some of her more liberal decisions. Some rather not have such a question mark, particularly one who on certain issues appears to be too much like her old prosecutorial self. You take the hand you are dealt. Anyway, the ACLU report provides a mixed picture on this front, suggesting a centrist who in various cases leans left. This is what one expected, more or less, even if you do not trust the source of this report. [The report is not a complete look at her record; it "summarizes the civil liberties and civil rights record" of the judge.]

For instance, the report notes that Judge Sotomayor has shown concern for the privacy of the person and the home, dissenting from opinions that did not adequately protect such things. OTOH, when dealing with searches and seizures outside the home, she was more friendly to the government ... in a few cases supporting a path that later was upheld by the conservatives on the Supreme Court. Thus, at times, when there was wiggle room, she took the conservative path.

She was sympathetic to right to counsel claims, but had a mixture record in granting them ... for instance, being sure in one case to underline how narrow the ruling was for the government, and being sure to underline the importance of the right as a whole. She was supportive of discrimination claims, but if she felt them weak, did not support them. She had an overall "sympathetic and expansive view of the right of religious exercise."

One of the few national security rulings she joined regarding "national security letters," which amount to an end around to the Fourth Amendment's judicial check. The summary warrants quoting in full:

Judge Sotomayor also joined an opinion written by Judge Newman in Doe v. Mukasey, 549 F.3d 861 (2d Cir. 2008). Plaintiff, represented by the ACLU National Security Project, brought a First Amendment challenge to the constitutionality of statutes governing the issuance and judicial review of National Security Letters. Id. After articulating narrowing constructions of key statutory terms, id. at 874-76, the court went on to find constitutional violations even after the narrowing interpretations. In particular, it found the statute unconstitutional insofar as it required recipients of National Security Letters to initiate litigation challenging gag orders and imposed an overly-deferential standard for judicial review. Interestingly, the opinion noted that the “panel is not in agreement as to” what standard of First Amendment review to apply. Id. at 878. It ultimately determined that it would reach the same outcome whether it applied strict scrutiny or a less stringent standard, and it provides no clues as to which analysis each judge believed was appropriate. Id.

The report also cites Judge Sotomayor's thoughts as to international law, the footnote providing a link to audio of a speech she gave on the subject (her remarks are prefaced with a greeting in Spanish -- the speech given in Puerto Rico -- but the main speech is in English). She provides a useful middle of the road approach:

Judge Sotomayor elaborated on her views about international law in a speech she delivered this spring in Puerto Rico.13 She began the speech by describing what she called a misunderstanding about the “use” of foreign and international law in U.S. courts.“We don’t use foreign or international law,” she said. “We consider the ideas that are suggested by international and foreign law.” She then added: “If the idea has validity . . . you will adopt its reasoning. If it doesn't fit, you won’t use it.”

She discussed how foreign law might be relevant when interpreting certain contracts or whatnot, but even then if it is against public policy, it would be ignored. She underlined that even treaties are not "self-executing," requiring enabling legislation to be more than morally binding. Still, she supported Justice Ginsburg's approach over Scalia/Thomas (citing each by name) that the judges should be open to foreign ideas, while not feeling bound by them. Likewise, she criticized those who do not explain why they support a particular idea, a path that only leads to public confusion on how "foreign law" is actually used.

As with her remarks about how her personal experiences influenced her judging, the speech suggested Sotomayor's reasonable, real world approach to judging. The report as a whole helps those who want to look past the public controversy and to judge on her record.

Food Stuff

And Also: An alleged girlfriend batterer and another asshole (now de facto second in command behind Gov. Patterson, there being no lieutenant governor given the Spitzer mess) has decided to throw the NY Senate to the Republicans, making the Lieberman sideshow of a few years back look like high school civics in comparison. And, some think Blue Dogs are a problem ...

In this quirky, fascinating and delightful book, author Sarah Murray has toured the globe in search of the stories behind food miles. Along the way, she has collected a series of astonishing facts and vivid accounts of Shanghai cafs serving English tea from Harrogate, American grain falling from a United Nations plane in Sudan and barbequed Memphis ribs flying FedEx to Wall Street traders. And such journeys date back millennia, from Roman olive oil to the Eastern spice trade.

-- Moveable Feasts: The Incredible Journeys of the Things We Eat

Food Party, a delightfully off the wall affair led by Thu Tran is now on IFC. Shades of TV Funhouse.

Here We Go Again

Ross Douthat starts off well, appearing to realize that Dr. Tiller was not just some sort of monster, but dealt with desperate cases. As noted here and elsewhere, he then goes off the rails. This includes such fiction as "[u]nder current law, if you want to restrict abortion, post-viability procedures are the only kind you’re allowed to even regulate" and his final analysis of how things will change if "abortion were returned to the democratic process."

Targeting Journalists

And Also: The season premiere of Army Wives was a pretty strong episode, with the subplot involving CJ's daughter the strongest, while Denise is truly going through the ringer too. The hospital administrator who dismissed her was a bit of a self-righteous asshole, btw, given that loads of spouses (on both sides of the equation) cheat for understandable reasons. Some on the judicial contribution case handed down today and what goes into judging.

Two American television journalists today were convicted of a "grave crime" against North Korea and sentenced to 12 years of hard labor, a move that increased mounting tensions between the U.S. and the reclusive Asian state.

The horrible news about the two reporters sentenced in North Korea will bring more coverage about how bad such governments are. Well earned, surely. Still, a bit of caution might be warranted, as Glenn Greenwald noted regarding the Roxana Saberi affair by NK's former (current?) partner in the 'axis of evil':

Beginning in 2001, the U.S. held Al Jazeera cameraman Sami al-Haj for six years in Guantanamo with no trial of any kind, and spent most of that time interrogating him not about Terrorism, but about Al Jazeera. For virtually the entire time, the due-process-less, six-year-long imprisonment of this journalist by the U.S. produced almost no coverage -- let alone any outcry -- from America's establishment media, other than some columns by Nicholas Kristof (though, for years, al-Haj's imprisonment was a major media story in the Muslim world). As Kristof noted when al-Haj was finally released in 2007: "there was never any real evidence that Sami was anything but a journalist"; "the interrogators quickly gave up on asking him substantive questions" and "instead, they asked him to spy on Al-Jazeera if he was released;" and "American officials, by imprisoning an Al-Jazeera journalist without charges or meaningful evidence, have done far more to damage American interests in the Muslim world than anything Sami could ever have done."

In Iraq, we imprisoned Associated Press photographer Bilal Hussein -- part of AP's Pulitzer Prize-winning war coverage -- for almost two years with no charges of any kind, after Hussein's photographs from the Anbar province directly contradicted Bush administration claims about the state of affairs there. And that behavior was far from aberrational for the U.S., as the Committee to Protect Journalists -- which led the effort to free Saberi -- documented:

Hussein’s detention is not an isolated incident. Over the last three years, dozens of journalists—mostly Iraqis—have been detained by U.S. troops, according to CPJ research. While most have been released after short periods, in at least eight cases documented by CPJ Iraqi journalists have been held by U.S. forces for weeks or months without charge or conviction. In one highly publicized case, Abdul Ameer Younis Hussein, a freelance cameraman working for CBS, was detained after being wounded by U.S. military fire as he filmed clashes in Mosul in northern Iraq on April 5, 2005. U.S. military officials claimed footage in his camera led them to suspect Hussein had prior knowledge of attacks on coalition forces. In April 2006, a year after his arrest, Hussein was freed after an Iraqi criminal court, citing a lack of evidence, acquitted him of collaborating with insurgents.

Right now -- as the American press corps celebrates itself for demanding Saberi's release in Iran -- the U.S. continues to imprison Ibrahim Jassam, a freelance photographer for Reuters, even though an Iraqi court last December -- more than five months ago -- found that there was no evidence to justify his detention and ordered him released. The U.S. -- over the objections of the CPJ, Reporters Without Borders and Reuters -- refused to recognize the validity of that Iraqi court order and announced it would continue to keep him imprisoned.

One finds only a tiny fraction of news coverage in the U.S. regarding the treatment of al-Haj, Hussein, Jassam and these other imprisoned journalists as has been devoted to Saberi. It ought to be exactly the reverse: the American media should be far more interested in, and opposed to, infringements of press freedoms by the U.S. Government than by governments of other countries. Yet the former merits hardly a peep, while the latter provokes all sorts of smug and self-righteous protests from American journalists who suddenly discover their brave commitment to press freedoms when all that requires is pointing to a demonized, hated foreign government and complaining.

As in other matters, we should also hold our country to a much higher standard than corrupt dictatorships. This includes when they suggest or 'accidentally' actually do bomb journalists or out CIA agents because their husbands criticize them in op-ed articles. And so forth. Anyway, the LAT article noted:

Ling, 32, and Lee, 36, were arrested March 17 along the China-North Korean border after top officials in Pyongyang said they had encroached on North Korean soil while reporting a story on human trafficking by Kim Jong Il's regime.

Many journalists have been killed reporting current military conflicts; they were arrested and sentenced to years in hard labor for reporting an important story as well, following in the footsteps of many who risked their lives and well being to deliver us the news. Shots at "MSM" and so forth should not let us forget how much reporters have done for the good of us all.

Saturday Quickies

I honor the upcoming 44th anniversary of Griswold here and this old blog post on Douglas' private Griswold is a favorite of mine too. Some interesting stuff after Sotomayor's questionnaire was released. As noted in the comments here, I don't find her involvement in a women's professional club controversial. And, today is the sixth-fifth anniversary of D-Day.

A Bit on the Cairo Speech

And Also: A conservative leading panel in the 7th Circuit followed the 2nd (Sotomayor involved, not writing) and did not incorporate the 2nd Amendment. It was a bit of a slipshod effort, the opinion selectively citing FN23 of Heller for the point the question was left open (fair point). It did not cite the bit about the "Fourteenth Amendment inquiry required" to determine if incorporation is warranted. And, the inquiry performed was rather perfunctory.

To put things in perspective, and recalling my thoughts that just because Bush gave a good speech he wasn't a demigod, Obama's Cairo speech should be taken with some degree of perspective. This can be done along with praising it (or any number of other links; the comments there provide some criticism too). For instance, one of the contributors to the Your Call media round-up today suggested Obama was too supportive of the corrupt leadership of Egypt, his cites of the Koran was not all that and his policy proposals limited (a theme that does pop up some places).

Such voices really would be helpful on talk shows, to reaffirm Dionne's point referenced earlier. On a more positive note, Yolanda Pierce honored the skill of its craft (we can't rely too much on pretty words, but they have some value, and I do respect him for this) and made a connection between Obama's use of "choice" respecting the rights of women in the Muslim World and the Tiller murder. The money paragraph:

Our daughters can contribute just as much to society as our sons, and our common prosperity will be advanced by allowing all humanity – men and women – to reach their full potential. I do not believe that women must make the same choices as men in order to be equal, and I respect those women who choose to live their lives in traditional roles. But it should be their choice. That is why the United States will partner with any Muslim-majority country to support expanded literacy for girls, and to help young women pursue employment through micro-financing that helps people live their dreams.

By chance, I caught most of it after awaking early enough to catch much of it live. The pro-speech commentary on BBC America was interesting too, maybe it was the accents, but the analysis provided seemed superior that is often shown around here. To add one more thing, some did not appreciate his remarks on the Palestinians, but it warrants some respect, including a reminder about the daily indignities they suffer -- outside of left outlets, such things are not regularly heard.

The proof is in the action, but it's June, 2009. He has time there.

Rush and Newt Are Winning?

And Also: A useful introduction to the debate over Judge Sotomayor's judicial philosophy as a whole, labeled here as legal realism. Meghan McCain: "I'm just sick of men in the media treating me like I'm a Playboy bunny. I am young, and I'm blonde, and that means I shouldn't have an opinion?" As noted here, if you keep some perspective, sure. Celebrities are listened to more; news at 11!

E.J. Dionne's warning that far right views are skewering the debate is well taken. Keith Olbermann should take it to heart -- focusing so much on a few right media voices is self-defeating at some point. It reinforces the idea that Newt Gingrich should be taken seriously, which to me was a dubious thing when he was Speaker of the House;* it surely is the case now:

While the right wing's rants get wall-to-wall airtime, you almost never hear from the sort of progressive members of Congress who were on an America's Future panel on Tuesday. Reps. Jared Polis of Colorado, Donna Edwards of Maryland and Raul Grijalva of Arizona all said warm things about the president -- they are Democrats, after all -- but also took issue with some of his policies. ...

But Edwards noted that if the public plan, already a compromise from single-payer, is defined as the left's position in the health-care debate, the entire discussion gets skewed to the right. This makes it far more likely that any public option included in a final bill will be a pale version of the original idea.

Rep. Edwards ran against an establishment Democrat, she is one of the new breed of progressives who want to provide a strong voice against tired ideas, at times dangerous ideas, that come from both parties. To quote one of Obama's favorite phrases, "Let there be no doubt," this is a good thing, and their voice -- which at times will provide loyal opposition to Obama's program (btw, his Cairo speech was pretty good) -- should be heard from more.

It is not an either/or.

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* I still remember first reading about the guy. Yes, a guy named after an amphibian, which in time was shown to be rather fitting.

Lumbee Recognition?

In miscellaneous news, the House passed a bill recognizing the Lumbee Indians (around fifty thousand in North Carolina), which could amount to hundreds of millions of federal funds for housing, education and health benefits for them along with six much smaller Virginia tribes. The tribe has had a checkered history and the recognition is controversial, both because their lineage is debated and they are not really reservation Indians. Top state leaders support it this time, so it might have a better shot in the Senate now.

Talking About Extremists ...

"Muslim convert pleads not guilty in killing of soldier." Comparisons were made with Dr. Tiller's murder. As the comments note, there are various differences, even if the prosecutor noted conversion to Islam for him was apparently a major influence. Putting aside what a true "Muslim" might be (what is a true "Catholic?"), do we equally see references of other religious in similar contexts? In headlines? Note different facts from Tiller, thus the "terrorism" charges. More.