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

Friday, October 30, 2009

Abortion Consistency

"Values voters" generally mean voters with certain values that often leave something to be desired (e.g., anti-homosexual). They also selectively oppose things, such as funding for abortion. More on why neutral sound health care includes abortion choice here.

WS: Round One

Good starting pitching trumped by very good/superb led to a split. Dubious managing alert: Pedro pitches fine (two runs in six) but is surely spent; is brought out in the seventh and gives up the run that ices the game. Pick-off might have been the turning point of that game (quick inning, tying run, Burnett settles down).

Thursday, October 29, 2009

More On Last Topic

And Also: As Rachel Maddow noted last night, the power went out during the filming of Craig Ferguson's interview with Alicia Silverstone, out promoting her new vegan supportive cookbook. One learns in part that "seitan" sounds a bit like "Satan." A lot of reviews already at Amazon.

[The defense bill signed into law had various notable aspects, including involving non-funding of a certain fighter jet as noted by Rachel Maddow last night. Rep. Holt's amendment regarding videotaping certain interrogations also deserves some note. A lot going on here, especially with focus on health care, but this legislation in the midst of foreign conflict is of particular importance.]

My thoughts on the hate crimes amendment yesterday was probably a bit garbled while I dealt with proverbial angels and devils on my shoulders. One thing I should have emphasized was that it was not just concerned with sexual orientation and gender* identity. The very name references a racial hate crime (James Byrd Jr.) and it in part strengthens a current federal health crime bill targeting racially motivated violence. A defense of the constitutionality of the provision from the Obama Administration discusses the point.

The various categories in the bill are justified in different ways. As noted last time, a federal race based hate crime bill can target private action without reliance on interstate commerce or such other special interest (e.g., a crime taking place on federal land or against a federal employee). Likewise, "race" in this sense includes at least some religious (let's say Jews/Arabs but unclear if Wiccans would be covered) and national groups. See also, here. This is why -- unlike per the Civil Rights Cases (public accommodations) -- state action need not be involved.

It is a Thirteenth Amendment "badges of slavery" interest as noted in this case that was cited by the Obama defense in question:
Significantly, this practice of race-based private violence both continued beyond the demise of the institution of chattel slavery and was closely connected to the prevention of former slaves' exercise of their newly obtained civil and other rights (rights that slavery had previously denied them), thereby presenting "a spectacle of slavery unwilling to die." Jones, 392 U.S. at 445 (Douglas, J., concurring). Thus "violence against blacks reached staggering proportions in the immediate aftermath of the [Civil War]," Eric Foner, Reconstruction: America's Unfinished Revolution 1863-1877, at 119 (1988), and such violence was specifically directed at the exercise, by black Americans, of the rights and habits of free persons. See, e.g., id. at 120 ("The pervasiveness of violence reflected whites' determination to define in their own way the meaning of freedom and their determined resistance to blacks' efforts to establish their autonomy, whether in matters of family, church, labor, or personal demeanor."); Kennedy, supra, at 39 ("In an effort to reassert control, whites beat or killed African-Americans for such `infractions' as failing to step off sidewalks, objecting to beatings of their children, addressing whites without deference, and attempting to vote.").

This might even be used to defend state hate crime legislation (see, e.g., Wisconsin v. Mitchell [black on white crime], where btw Thomas actually asked a question) in part because ala exceptions to state immunity to lawsuits a later amendment can abridge a former in some fashion. As noted here, this argument was never applied to a non-racial law of this sort even though the author of that piece in his book on the Thirteenth Amendment supports such an application since the amendment protects freedom for all. Thus, for non-racial groups some sort of commercial federal "jurisdiction hook" is necessary to have a federal prosecution. And, as the piece argues, it underlines the importance of an employment discrimination law to provide further protection.

[I read the book in question and found it somewhat heavy-handed advocacy. But, the discussion linked to and the corresponding law review article are worthwhile.]

The link to the Wisconsin v. Mitchell argument is of limited value in some ways since I don't think the defense did that good of a job. Thomas' question, for instance, at the end was interesting but he didn't get much of an answer. The opinion itself does a good job spelling out that when action is involved, motivation can be judged in various cases under current law. That was a sentence enhancing law -- selecting a person for racial reasons (not necessarily out of hate -- important point perhaps) added to the punishment. This is federalizes certain crimes usually left to the states. So, there are differences. After all, my concerns about an unnecessary additional punishment (serious crimes already have serious punishments) does not apply if the feds need to step in to protect federal interests or crimes states do not punish enough already.

Anyway, don't know if this adds much, but hopefully it is of some help.


* It's not totally germane, but to toss it in here, this discussion from a former Letterman writer on how there was a sexual intimidating environment when she was there is striking. The absence of female writers (though on Letterman a female producer is evident) provides a lesson that goes beyond the sexual titillation of the story.

Also, other than a short lived Joan Rivers late night show and an upcoming Wanda Sykes program, how about the absence of women hosts? I almost forgot the less watched E! show Chelsea Lately. Why not put one to replace Conan, for instance, instead of yet another lame guy? A Sarah Silverman type would answer the possibility that a mainly man demographic is sought here. Are female hosts only fit for daytime fare?

Wednesday, October 28, 2009

Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act

As part of a defense authorization, the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act (see here, starting on page 1471) was passed today. No big fan of nongermane legislation to be tossed in like that, but it's how things are done.

I'm wary of hate crime laws generally for three basic reasons: pragmatically I think the best path is an evenhanded enforcement of the law, especially since doing otherwise can lead (fairly or not) be deemed special favoritism and lead to social divisions. As in R.A.V v. St. Paul, it also can be deemed inequitable to target harm to certain groups alone though it was not applied to violent action (though the previous case involved cross burning). Finally, it is complicated in various cases to prove discriminatory motivation, at times perhaps resulting in trying a person's opinions.

Bottom line, the best path seems to be to prosecute attacks and so forth, attacks based on hate for whatever reason (not some list of categories) treated differently than the run of the mill crime. Yes, in the process motivation comes into play, but the law in question does not target any one group. The legislation just passed notes:
A prominent characteristic of a violent crime motivated by bias is that it devastates not just the actual victim and the family and friends of the victim, but frequently savages the community sharing the traits that caused the victim to be selected.

IOW, the crime is not just against the person, nor are the effects. But, the same can be said about many crimes. Street crime in poor communities, for instance, makes the whole community a dangerous place for all. And, there are any number of bias crimes that harm groups, more than the limited number listed in this legislation. The counter is that the same can be said about discrimination laws, but we still have select categories getting special treatment such as those protecting groups by race, religion, gender, age and so forth. OTOH, perhaps civil rights laws are different than crimes, which can involve prison.

The law also notes that hate crime laws in regard to race (in an original intent sort of way, religion fits in here, since religious groups like Jews and Muslims were deemed a sort of race) raises Thirteenth Amendment concerns, since they are in effect a badge of slavery. It is unclear how much it rests on this though. The legislation tosses in a boilerplate interstate commerce hook, but there also seems (when a state does not prosecute or does so that it "left demonstratively unvindicated the Federal interest") some opening for further federal prosecution in other cases. It would be helpful if more discussions of this legislation would tell me what exactly that would mean in practice.

I think my concerns hold, but the badges of slavery issue does give me pause ... in that case, yes, certain times of crimes very well might be more of a constitutional moment. Less so for many types of hate crimes, including by gender and sexual orientation, though one can interpret the amendment broadly to apply to them too. The fact that some state doesn't enforce a bias crime involving sexual orientation and the offenders use a bat they bought in interstate commerce does not seem to do it. But, if -- and this is probably true -- some state or locality selectively fails to target certain types of violence because the community does not find it as important because of bigotry or the like, that's different. Failure to equitably enforce the law can very well be an illegitimate state action in this case.

Putting aside when purely federal matters are involved, such as you know crimes in federal territories or serious interstate crimes not ones related in that fashion akin to federal targeting state medicinal marijuana use, this is reason for a federal law. Some raise federalism concerns in cases like this, since such laws can be so open-ended that in practice the feds selectively single out certain basically state crimes because the public is rather arbitrarily concerned about the matter for one reason or the other. But, as with civil rights laws in the 1960s, certain crimes are ignored by the states in such a way that national action is appropriate.

The law has boilerplate, constitutionally implied anyway, that prosecution cannot "admit evidence of speech, beliefs, association, group membership, or expressive conduct unless that evidence is relevant and admissible under the Federal Rules of Evidence" -- that is, you can do so, but it has to be germane and appropriate. It also provides federal support to state investigations: "technical, forensic, prosecutorial, or any other form of assistance in the criminal investigation or prosecution of any crime" and other funding to help end such bias crimes. Likewise, sexual orientation and gender identity crimes are added to a national database.

To summarize:
The new measure, attached to an essential military-spending bill, broadens the definition of federal hate crimes to include those committed because of a victim's gender or gender identity, or sexual orientation. It gives victims the same federal safeguards already afforded to people who are victims of violent crimes because of their race, color, religion or national origin.

The law allocates $5 million a year to the Justice Department to assist local communities in investigating hate crimes, and it would allow the agency to assist in investigations and prosecutions if local agencies requested help. It includes provisions for mandatory training of local law enforcement. This will help in so many ways, and give local organizers a chance to interact with the police in a positive way. Eighteen states (GA included) have no state Hate Crimes laws, so this provision to "step in" is critical for a proper investigation.

The funding aspects are much less open to criticism even on libertarian grounds. And, my concern about hate crime laws does not really answer depriving one particular group from their protections. In fact, my concerns are weakened when the laws are more diverse -- the more groups covered, the less selective. Likewise, it is an equal protection concern when sexual orientation or gender identity are not covered, since they are comparable to the groups already covered. Finally, as Rachel Maddow just noted, the message sent to the LGBT community is that they matter too.

Various aspects of the law don't touch to the core of my concerns. The funding components come to mind, though they might still raise special interest concerns. My concerns also can be countered with various arguments. This makes the ultimate debate a pragmatic one that is balanced by the positives especially with the first major federal law that respects the LGBT community.* Why should they not too be protected? And, principle or no, this sort of thing does not keep me up at nights.

So, bottom line, this is a good thing.


* The message being sent underlines why this matters even when murder or some other very serious crime is involved in which it is likely the offenders will (or did receive) high penalties or even the death penalty in certain cases (not found in this law) anyway. We are dealing with people targeting others for who they are and for practicing what is their right to do. The government has a right to single this out for disfavor. There are ways to do this without use of the criminal law, of course.

Ideally, I still think that the best way to do this is to target all attacks for the very reason that violence and so forth deserves to be prosecuted. If all people attacked are helped in this way, is not equality promoted? But, we do have limited resources and thus target certain things and do so so symbolically as well by such legislation. So, again, I see the other side's point. It has bite.

[Update: Here's an essay on the matter. As to this hate crime law in particular, the claim that some really just are uncomfortable with protecting this class of people has bite. But some, like some at TalkLeft, are against all hate crime laws can't be so labeled. Some btw do oppose various types of civil discrimination policies as well, feeling the laws result in wrong-minded lawsuits. Sexual harassment law alone. Most also accept that certain things in this area are specifically wrong, such as voting discrimination as spelled out by various constitutional amendments.

I also do not quite buy the thought/motivation distinction. We can do various things legally even if we are motivated by hate (and how do we prove it? sometimes we go by what you were thinking or reading or whatever) -- I can deprive your family from going to a game because I hate you, if I could get the last ticket. Making certain things illegal just for hating, especially just for hating certain groups, is wrong. This is why discrimination laws are different -- you have some privilege or right, and a person is wrongfully depriving you of it for 'x' reason. Often, hate is not involved at all. If you don't fit in a certain category, assault and battery is still wrong.

So, the difference probably is that certain actions that are wrongful even if they are somewhat expressive. And, given concern for equality, religious freedom and so forth, certain actions should be more of a concern -- even illegal actions -- than others for various reasons. Especially given limited resources, societal biases that require special responses, etc. OTOH, citing "financial motive for murder" as a sort of "motivation" crime is dubious since one problem here is that the categories are especially sensitive, touching upon ideological thoughts that are not really akin to that. And, the law cannot target contempt for the flag ... we went down that route.

Libs Against Campaign Finance Limits

Via a Scotusblog's round-up of articles, here's an interesting argument concerning "The Lack of Stockholder Voluntariness in Corporate Political Speech."

Via one of the links (using the ideal footnote like tag function), we do find an alternative concern, the author of which underlines an alternative libertarian view. The dissent also cites an earlier case where the Court's liberals took such a view. The two justices that joined in the dissent here are notable for two reasons. (1) Both were politicians from the populist tradition so had a realistic understanding of how these things work with Black's anti-corporate bona fides well documented (an early dissent challenged giving corporations standing as constitutional persons). (2) CJ Warren was no First Amendment absolutist like the other two, so that is not the reason he joined in. Anyway, the dissent started thusly:

We deal here with a problem that is fundamental to the electoral process and to the operation of our democratic society. It is whether a union can express its views on the issues of an election and on the merits of the candidates, unrestrained and unfettered by the Congress. The principle at stake is not peculiar to unions. It is applicable as well to associations of manufacturers, retail and wholesale trade groups, consumers' leagues, farmers' unions, religious groups, and every other association representing a segment of American life and taking an active part in our political campaigns and discussions. It is as important an issue as has come before the Court, for it reaches the very vitals of our system of government.

Under our Constitution, it is We The People who are sovereign. The people have the final say. The legislators are their spokesmen. The people determine through their votes the destiny of the nation. It is therefore important -- vitally important -- that all channels of communication be open to them during every election, that no point of view be restrained or barred, and that the people have access to the views of every group in the community.

Unions and corporations are put on the same level by the campaign finance legislation is question in various respects. The two are different in various ways -- the investment of funds in corporations as a result of decisions not really of your control, e.g., raises questions unlike membership in a union. So, even if this seems like a good way to balance the concerns of both political parties by burdening groups one or the other support more, putting the two in the same boat is questionable. Still, the dissent noted:
Some may think that one group or another should not express its views in an election because it is too powerful, because it advocates unpopular ideas, or because it has a record of lawless action. But these are not justifications for withholding First Amendment rights from any group -- labor or corporate.

With cause, since any number of corporate group came in front of the Court, including to defend the rights of some group or the other. This is why the Supreme Court has treated non-profits somewhat differently (how much is unclear, since it gets all so complicated) in this area. But, we keep on hearing about the problems of "corporations" as if it is a one size fits all matter. That's absurd. I can incorporate JP Inc., for instance, which basically would mean the liability of its actions will be limited to the funds of the corporation. My right to speak in promotion of its interests does not suddenly plummet because I incorporated. This is true even if it decreases by some degree given incorporation brings with it various obligations.

The dissent provides this footnote that still holds true:
If Congress is of the opinion that large contributions by labor unions to candidates for office and to political parties have had an undue influence upon the conduct of elections, it can prohibit such contributions. And, in expressing their views on the issues and candidates, labor unions can be required to acknowledge their authorship and support of those expressions. Undue influence, however, cannot constitutionally form the basis for making it unlawful for any segment of our society to express its views on the issues of a political campaign.

Contributions to candidates and disclosure laws are put in a different category than expression of views. This includes limits on what corporations can pay to create ads, literature or downloadable content sometime close to elections, the time when voters would be most open to what they are saying. And, do so without some Rube Goldberg device with the clear intent of making it harder for them to speak out.* What about the fear that shareholders would disagree? I don't quite understand that. When I give money to some big group, let's say one that promotes animal welfare, I delegate to them how the money will be spent. I might disagree with what they do in any number of ways, but have little real control over such matters.

So it is with corporations, which makes any number of company related decisions, in some cases ones that I might find very distasteful. Some corporations are subject to human rights litigation for their acts overseas. Their shareholders might be people who would not choose such a corporation to invest in, but had their money placed there by some retirement fund or whatever. So it goes. How is this a matter of corporate self-government, but suddenly when campaign finance decisions are in place, there is a sudden fear that shareholders might not have control? In this case, speech is involved, which if anything is something the government should have less power over. And, any number of political campaigns involve matters of utmost importance to a business, making it proper for them to speak out in various respects.

Again, any number of limits might be put in place, at least for the sake of argument. Corporations might be required to have heavier disclosure laws. If the matter at hand is merely ideological (Pepsi Inc. paying for an anti-abortion ad really is not business related) -- which probably has various line drawing problems -- things might also get more complicated. For profits might be more regulated in various ways than non-profits or there might be a cut-off so that small corporations are not treated the same as the big ones that everyone really care about. Limits of spending might be considered ala limits of campaign contributions in general. And so on.

But, and this was the sentiment of certain liberals back in the day too, heavy-handed limits on speech -- labor or corporate -- is a serious First Amendment problem. Shareholder protection or not.


* I was watching Sen. Whitehouse talking about the pending case recently, concerned about the can of worms that would be opened if corporations could spend limitless money against various measures. Recall what we mean here: corporations cannot be trusted to have the right to talk about things. Their deep pocket owners and supporters might, perhaps with less disclosure on who is really behind such and such an ad campaign. How this is really helpful at the end of the day is unclear to me. Do astroturfs really need corporate spending to survive? Water finds an outlet. Control corporations ... sure ... but do so in a more effective way.

And, the concern underlines that the fact that corporations can form PACs is not really a saving grace here. The concern is that they are spending money generally, not that it is coming out of the general funds. I doubt many shareholders in general really care about the matter generally any way. In various cases, they would support spending if the company's business interests were at stake. Finally, even if they did, the fact that corporate supporters will get the message out another way will often upset them is a comparable fashion.

The whole concern has a phony feel to it.

Tuesday, October 27, 2009

"May Of Right Do"

And Also: Rachel Maddow last night opened her show by noting the limited public option with opt-out supported by Sen. Reid is on the conservative side of the options available. And TPM says a few expected suspects still are making noises that it is too liberal. Blah.

A useful summary commentary of the military commissions component of the upcoming defense bill (the hates crime legislation amendment getting most of the press*) is found here. It gave me a chance to set forth my overall views:

The bottom line is that the U.S. government has certain limits to their authority, limits that in some part are not just statutory or treaty related (that too) but a component of their lawful power itself. Thus, the laws of war is not just a matter of grace. It helps define the basic powers in question.

This is not just a matter of "rights" -- thus, Congress has no power to suspend habeas except for certain situations. Or, to pass ex post facto laws. Or, to enslave. Doesn't matter who it is; shades of Galatians 3:28 -- the limits of power, which implies a right, applies to all.

I would not only rest on this, but it seems to me that providing basic rights to all detained, all "persons," including a right to appeal, counsel, and other basic rights is essential to limit the power of the government to its appropriate sphere.

We need first to save our own souls ... not mistreat ... in the process, others also have rights. But, "we the people" also have a duty here. If in the process enemies get some rights, it is "necessary and proper."


Basic rules and limits apply. The ends justifies the means was not the rule during the Revolutionary War, and it is not now. This has both pragmatic and moral value.

As CJ Hughes, not Justice Kennedy, once noted:

the war power of the Federal Government is not created by the emergency of war, but it is a power given to meet that emergency. It is a power to wage war successfully, and thus it permits the harnessing of the entire energies of the people in a supreme cooperative effort to preserve the nation. But even the war power does not remove constitutional limitations safeguarding essential liberties. When the provisions of the Constitution, in grant or restriction, are specific, so particularized as not to admit of construction, no question is presented.

Limited government, even when "the people" are not the target, is for our benefit. This includes limits on what we can do to those in detention. In the current conflict, this can include people who have lived among us as citizens or lawful residents for decades.

Some, however, think basic rights (not all rights) are too much. Forever watchful, we must be for they include those with much more power and authority than the likes of any one of us.

There is still some sentiment that "them" (those assumed to be enemy combatants) can be treated however we want as if there were only pragmatic limits to how the government acts. This is false. Limited government includes limits on treatment of "others." Of course, we can sneer at this and international law in general (see various posts by Eric Posner here). Some who do this claim to be conservatives or originalists who respect the Constitution and rule of law. By ignoring both.

And, good take on the upcoming series.


* I'm wary about hate crime legislation on pragmatic and other grounds, but if the federal government is going to have it in place (including funding various programs) for various other groups, equality alone justifies extending it to sexual orientation too.

Monday, October 26, 2009

Algebra in Action!

And Also: The blogs report today about Sen. Reid's announcement of a health plan with a public option that has some sort of opt out provision. Sounds credible. Now for the details ...

Who says algebra is not important? I had a certain amount left on a card and wanted to find out how much that would be if tax was included in the amount spent. Thus, we set up a formula:

x+x(sales tax) = amount

Thus, we divide the amount by 1.08875 (8 7/8%) to find out how much we have to spend if the item purchased has sales tax. Algebra has two basic functions -- it teaches us how to think/reason and provides a specific ability to determine certain amounts. Determining a certain unknown with the information provided is basic human reasoning. It does sound a bit scary, especially if phrased in a certain way (use of "x" and words like "integer" does that), which might explain some things in fields like politics and social science overall.

Anyway, note the complicated sales tax, which includes a NYC addition (3/8% of which is transportation related). What is with that 1/8%? Just make it 9% ... is the penny per eight dollars going to kill anyone? It is hard to keep up with these fractions, and I did not know it went up earlier in the year. Likewise, it's hard to keep up with what exactly is taxed. Consider Dunkin Donuts -- my coffee was taxed but not my muffin. This is logical in that the muffin is food but certain prepared foods in grocery stores are taxed as is candy. A look at a supermarket receipt -- not always a good thing these days -- can be rather interesting. Well, somewhat so.

OTOH, library hours have expanded significantly in recent years. From five day service in many places to six to six with expanded hours with a few more Sundays. A few more branches, including one near me also were opened in the last few years. The local papers should have done more to discuss this major advancement of local services. In fact, a flyer or pamphlet from the library itself to compare and contrast (especially given all their efforts to promote write-in campaigns to promote and retain a six day week) would have been helpful. Sometimes, there are successes and more should be done to inform us of them.

The alternative is that the status quo is seen as a given, as if things always were like this or it was just the natural state of affairs. Like in health care ...

Get Fuzzy on Cows

Pot federalism (NY next?) and the Philippines might become more rational on birth control.

Sports Update (1-2)

Jets beat Oakland big. Wow. Giants couldn't score more than three points in the second half. And, when they show some life, the Angels are sloppy one more time to clinch it for the Yanks. Blah.

Sunday, October 25, 2009

Sweet Land

I discussed Sweet Land twice and listed it as one of the best films of the year. After seeing it in an indie house, I saw it on DVD and now again. Each enjoyable in different ways. Worthwhile for multiple viewings, including the commentary. A film for lovers of film.

Law & Order Abortion Episode

After reading a preview from a pro-life blog, I was waiting for a pro-choice take on the Law & Order episode just referenced (summarized here with a generally positive review). And, here we go:
On Friday night's "Law & Order," the abortion debate was represented by two separate, yet equally important, groups: The anti-choicers, who believe fetuses' rights trump women's, and the pseudo-pro-choicers, who are conveniently persuaded to agree with them by the end of the episode.

It seems that there were three L&O episodes about abortion related violence. A clinic bombing, one involving the grandfather from Gilmore Girls (if before it began) not succeeding in a necessity defense because ultimately he was not able to live up to his convictions, and this one which is a take-off of the Dr. Tiller murder.

This time the murderer (who comes off as a loser) has his day in court, arguing that he was stopping the "murder" of an upcoming late term abortion. I saw the second one and thought it pretty good and saw this one, thinking it good but slanted with various dubious legal moves that can be accepted for dramatic effect. This includes the judge allowing a stranger (not even the shall we say "grandfather," that is, the pregnant woman's father) to raise a justification defense in the first place (days before the scheduled abortion -- would this work for any justification defense? the fact he did not know for sure it would happen was not even raised!) and bringing up some act the doctor did that puts him in a bad light, but was not legally relevant since the shooter had no way of knowing about it.

I thought it was good but throughout I had the feeling -- just a tad less than the Salon piece -- that the episode was too slanted one way. Compare this to the torture episode. The assistant DAs were split on prosecuting the Bush official stand-in though the more conservative one seemed to be convinced some by the end. And, it is clear that there was one point of view that was dominant. But, and yes I take one side over the other, it did not seem so one-sided as this episode. The pro-choice ADA comes off as having shallow beliefs (as the Salon piece notes, the answers to various pro-life arguments can be easily made) and having Dr. Tiller's stand-in being guilty of murdering (to use the right word) a botched abortion is a bit in poor taste besides again stacking the decks and being a bad legal move.*

What can be said about the episode and what partially saves it is that even with all of this, it comes out against violence against abortion providers. The peace minded pro-life group comes off the best and the ADA's closing was a powerful missive about the hard questions here and how violence is not the way to go. The Salon article also isn't fair in not noting that the witness who discussed how it was so important for her to hold her doomed baby in her arms in its brief time alive also said on cross (by the pro-life ADA) that she might have had an abortion at another time and that it would be a fundamental service for her to be allowed to do so.

And, yes, the right to choose includes making just that choice. The weak-willed pro-choice ADA (threw when she finds out the doctor botched the abortion etc.) might have kept that in mind. It might have helped if a witness other than a radical pro-choice doctor was on the stand, perhaps a woman (maybe who has one or more other children) who had a late term abortion to balance the one who did not. The use of something of a borderline condition instead of a more fatal one also stacks the death. This underlines the problem with allowing people to play God -- the shooter here would not have thought "well, this is not just a dangerous but survivable condition, but one that puts the woman's life in danger or will clearly lead to the death of the baby so I won't shoot her." After all, even holding such a baby in your hands for a few hours means so much, right?

I'd add that NY law -- as alluded in the episode -- only allows late term abortions to protect the life of the girl/woman. But, Casey also has a health exception. This sort of thing allows you to shoehorn in eleven year old rape victims -- a pregnancy would be a serious risk of health for such individuals. As to the partner expressing his anti-abortion opinions on the job, Salon is a bit off on the response to the other partner ("I'd have a different partner" sounds like he is not convinced with the argument that some one person not being born is an earth shattering argument or anything). Either way, during a murder investigation, you don't go around promoting your beliefs to witnesses and so forth.

[Update: More here, focusing on those upset about how this reflects on Dr. Tiller. A comment on this feminist blog reinforces the sentiment that the partner was not too impressed with the fact that he might have another partner if mother instead had an abortion. Also, apparently a sister show has been more pro-choice in the past.]

But, the episode tosses up the rules, mostly to put forth a pro-life point of view. That's bad pool. I am all for seriously talking about the complications of the abortion issue, including showing that those who oppose it are not all monsters and have some powerful points to make. Not so much enthused about slanted arguments, like arguing Roe is out of date since we have good contraceptives these days and so forth. Especially when the other side -- well who cares since a pro-police/prosecution show is all liberal anyway right? -- is so shabbily provided. The lack of a pro-choice p.o.v. is standard, since abortion is consistently taboo on television fiction generally.

So, good job for dealing with the issue. The follow through, however, left something to be desired. The fact that legalized abortion and the evil of violence as a solution came out anyway is sort of a backhanded pro-choice message all the same.


* The cross examination made it clear that the anencephalic child in question -- when born, that is definitely the appropriate word -- would have died within the day. It did not note that the condition is one "resulting in the absence of a major portion of the brain, skull, and scalp." This might have put some light on why the doctor killed the child when the abortion was botched.

Friday, October 23, 2009

Legal Tidbits

This underlines the limits of Ricci. Tonight's abortion related L&O episode was actually more pro-life than anything else, even tossing in a detail that the gunman would not have known to put the doctor in a bad light. Is this what is required to cover abortion in fiction these days? Worthwhile but still too unbalanced.

Thursday, October 22, 2009

Major Dad Related Thoughts

And Also: My favored teams are likely all going to the wayside, but perhaps the last survivors will go at least six. This will show some life and the Angels won't have to see an opposite number celebration in their own building. Meanwhile, the umpiring has been a bit sad.

I have not really found anything too interesting yet among the new television series. The Middle seemed to have potential, but has not impressed much over the first few episodes. The Good Wife also has potential but it has had a few too many coincidences (a not so likely chance finding by the lead was a repeated plot point in the few episodes I saw). So, re-watching Major Dad episodes online remains a useful resource.*

One episode concerns the oldest protesting against a school policy against the latest fad: wearing boxer shorts on the outside. She plans to write an op-ed in her school paper (her mom is a reporter and saw this as better than just complaining) but a teacher opposes the idea. Her mom is unable to go to the scheduled appointment, but the major surprises the daughter by supporting her right to write the op-ed (reminding the teacher he has a duty to uphold the Constitution), still thinking the school's dress policy is sound. Meanwhile, he has to deal with a military supply problem involving toilet paper.

Not a bad little lesson to teach via a sitcom. Not that every episode has some "message" though there were a fair number each season, particularly since the very point of the series was to show the struggles of two different people to adapt to each others' lives. It also reminded me of something I wrote about school uniforms some time back. A taste:
Education today is full with problems, including overworked teachers, violence and drugs, uneducated students, lousy physical plants, and more. The solutions are complex and highly debated, including federal and state funding, federal standards, school vouchers, privately controlled schools, ignoring certain students from various neighborhoods and ethnic backgrounds, and so on. Pretty far down the line is requiring students to wear uniforms, uniforms that are often boring unless they are used for some twisted fantasy or something.

The show also touched upon various military issues, again in a way appropriate to a largely light sitcom, if one that sometimes dealt with serious topics. For instance, it dealt with the push to close bases, the major's new base (he moved from a training role to a more office related position -- a "staff weenie") needing to show a reason for its continual existence. The show also dealt with the readiness necessary for the First Gulf War. A more "Spanish American War" sort of affair than its sequel and the events in Afghanistan.

Recently, the 7th Heaven episode where Ruthie's penpal died in Afghanistan was rebroadcast. Not to degrade the terrors of the conflict, but a recent article put such deaths (on our end) in perspective:
As of Wednesday, Oct. 21, 2009, at least 805 members of the U.S. military had died in Afghanistan, Pakistan and Uzbekistan as a result of the U.S. invasion of Afghanistan in late 2001, according to the Defense Department.The department last updated its figures Wednesday at 10 a.m. EDT.

This is something like one-fifth of U.S. troops dead in Iraq and that in two years less time. Lots more were injured as well. The numbers of locals killed as well (even without looking for exact details) are quite different in the two locales as well. Putting that aside, it says something when an average of one hundred a year dead is deemed significant in a major conflict. Compare this to past wars. It might also suggest how we can linger on and on there, particularly when we are not dealing with the draft here (though some were pressured to join for monetary or other reasons).

The harm to locals, threat to foreign policy and terrorism related blowback, the cost, and so forth all make Afghanistan a major issue. And, hundreds of American lives, plus more wounded in some fashion remains quite important, particularly when if you are going to risk them, a wasteful policy does not do them justice. But, the numbers -- even in Iraq to be honest -- still strikes me. So much changed, and is different on our side, when we can even list our dead in thousands over so much time, so many risky affairs that also included direct action.

It helps to explain how we can have such a continual military presence without a much larger immediate concern by the public and their government.


* The sitcom concerns a by the book Marine who suddenly falls in love and marries a liberal civilian with three daughters.

Wednesday, October 21, 2009


Extended update at my contractor rape post -- complicating things a tad but the bottom line holds up. Don't want it, but yesterday was one day closer to a Phillies/Yanks series. Each team benefiting from a blown save by the opponent, erasing the margin of error (already nil).

Tuesday, October 20, 2009

Supreme Court Thoughts

The discussion seems to me a bit garbled (not a fan of the author), but my comments here suggests it does raise some interesting issues as to concerns about what judges "believe," their "objective" and "subjective" reasoning, and so forth. My comments also might suggest how even I can be "conservative" in some senses of the word. IOW, taking a careful view of things, not going further than necessary to make a point and so forth. I find being restrained can promote your point more in some cases. Or, at least, so is my hope.

Meanwhile, various matters are being decided by the Supreme Court. It's first opinion of the term (per curiam) unanimously held that (to quote the Findlaw summary) "the circuit court erred in disposing of petitioner's remaining, unaddressed challenges to his death sentence without explanation of any sort." A lower court decision allowing "officials in Washington State from publicly disclosing the names and addresses of individuals who signed petitions seeking a voter referendum on a new gay rights law"* was temporarily blocked until the justices can act on the appeal. And, an important detainee case was granted a hearing.** The last the most important.

The first matter led to a discussion involving abortion. This discussion elsewhere concerning Terri Schiavo touches the point and raises an important issue:
parts [of the brain] that science tell us are responsible for a person's memory, thought, consciousness, emotion, personality, sense of right wrong--all of the things that make us a person, and make us different from any other person.

The single word that describes this concept, in the English language, is the word "soul."

"Katherine" accepts that this attempt to locate the soul in the physical realm is a controversial move to make, more revolutionary and upsetting to some than various other things science has done to replace religious dogma. But, it is a sound argument. Furthermore, it underlines that the "right to life" is based on something with more than mere physical breath, but "soul." And, early abortions are allowed in part because the embryo/fetus does not have that something, including "fully sentient" life. As Justice Stevens noted in another context:
Life, particularly human life, is not commonly thought of as a merely physiological condition or function. [n.19] Its sanctity is often thought to derive from the impossibility of any such reduction. When people speak of life, they often mean to describe the experiences that comprise a person's history, as when it is said that somebody "led a good life." [n.20] They may also mean to refer to the practical manifestation of the human spirit, a meaning captured by the familiar observation that somebody "added life" to an assembly.

Toss in Webster, Stevens' opinions in those opinions are definitely up there on my favorite citation meter.


* I'm with EV -- releasing names and addresses would be bad policy, but not unconstitutional.

** It seemed to me absurd when the lower court in effect ruled there can be a right without a true remedy. But, releasing detainees is a messy business but so is wrongful detention.

Monday, October 19, 2009

Sports Update

I too am a bit annoyed at some of the inside baseball over something truly different at Rachel Maddow. Angels (1-2) miss opportunities, but still win. Dodgers (1-3) blew it in the ninth. He played tonight.

New Pot Policy

As Glenn Greenwald noted today, it's good news that the Obama Administration will not target medicinal marijuana use allowed by state law, except if some other criminal activity is involved. Limited resources and all that. The same pragmatic explanation for not enforcing torture laws? More please.

Sunday, October 18, 2009

Sports Update

Dodgers are being creamed, so soon will be 1-2. Angels (0-2) blew it via another error late, surviving a blown ump call. Giants got beat (somewhat expected) but badly. Jets lost badly (unexpected), fans now looking at a .500 team while BF is perfect up North.

Saturday, October 17, 2009

Justice on Contractor Rape?

Jamie Leigh Jones was but one of several women sexually attacked by our military contractors.* As with torture, there has been a basic failure to actually have the government prosecute these cases. This sort of this is disgusting:
"American women working in Iraq and Afghanistan continue to be sexually assaulted while their assailants go free," said Senator Bill Nelson, who called the hearing. Because squabbles about who has jurisdiction in these cases have proliferated, Nelson arranged to have representatives from the Defense, State and Justice departments sit down together in front of him. They were forced to listen while the latest victims testified.

As a Cato report noted:
As Salon magazine noted, since reporting the case, Leamon, like Jones, has found herself in a legal limbo. This is because Halliburton has an extralegal dispute-resolution program, implemented under Chief Executive Officer Dick Cheney in 1997. Once you get past the rhetoric about reducing lengthy and costly legislation, its actual impact means that employees like Leamon and Jones signed away their constitutional right to a jury trial -- and agreed to have any disputes heard in a private arbitration hearing without hope of appeal.

Must not "look back" though. The dangers of using mercenaries was expressed in the Declaration of Independence:
He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.

But as with selective concern with "northern aggression" by those in the South who tend to support foreign invasions that their foreparents deemed unpleasant when done to them, we often have a selective memory here. A Republican member of Congress did help Jamie Leigh and support legislation requiring reporting of such violent acts, reminding that this sort of thing is "not a political issue" (as in partisan). Tell that to the thirty Republican senators who rejected an amendment that would refuse funding to contractors who required arbitration when even in matters of:
(1) assault and battery; (2) intentional infliction of emotional distress arising out of the alleged assault; (3) negligent hiring, retention, and supervision of employees involved in the alleged assault; and (4) false imprisonment

IOW, to apply exceptions to mandatory arbitration that the majority of the conservative Fifth Circuit held applies across the nation. Sen. Franken sponsored the amendment, and Jon Stewart's on point coverage is here. As Ms. Jones noted: "An arbitration proceeding is private and discrete and the outcome of arbitration cannot be disclosed to the public, nor can it be appealed." Many, like Ralph Nader, find them troubling as a general matter. They have no place here.

Of course, there is always the ability to seek criminal sanction. Sure, this is not a matter of a fake prostitute or talk of fake teenage prostitution. OTOH, it would mean looking backward. No, I think the need for civil litigation holds.


* If I was a member of the press as such, "alleged" might be warranted here, but the evidence is there to be sure that she and others were actually raped. And, as noted here, there have been convicted cases (if minor) of sexual abuse under the "Military Extraterritorial Jurisdiction Act." The article underlines the value of the use of the military includes that they clearly are liable for their actions, while contractors fall under a more hazy area. While ACORN is being targeted, we have this:
Earlier that year Ben Johnston, a DynCorp aircraft mechanic for helicopters in Kosovo, also filed a lawsuit against his employer. The suit alleged that in the latter part of 1999 he "witnessed coworkers and supervisors literally buying and selling women for their own personal enjoyment, and employees would brag about the various ages and talents of the individual slaves they had purchased."

And, "not nearly enough has changed." This includes many Republicans not apparently caring. As I said once before, why in the hell am I supposed to take them seriously?

Update: The amendment in question covers this ground:
None of the funds appropriated or otherwise made available by this Act may be used for any existing or new Federal contract if the contractor or a subcontractor at any tier requires that an employee or independent contractor, as a condition of employment, sign a contract that mandates that the employee or independent contractor performing work under the contract or subcontract resolve through arbitration any claim under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision, or retention.

The DOD is wary but assures they support the spirit. I'm wary of statements like: "The department suggests that 'it may be more effective' to seek a law that would prohibit the clauses in any business contracts within U.S. jurisdiction." What does that last part mean when dealing with firms that do things overseas?

As the text underlines, not just rape is in question. But, as tends to be the case, it is not like the opponents pushed for some bipartisan middle ground that did not include some catchall "sexual harassment" component. This would have helped prevent this wickedly funny blog from having such bite. (You can see/hear Jamie there in the Franken questioning vid.)

Not that depriving people the right to a day in court when their civil rights (including protection from sexual harassment) is an ideal "middle ground," especially when what is at stake is government financing and mandatory arbitration.

Friday, October 16, 2009

Sloppy Sloppy

After losing a slugfest, the Dodgers evened out things when messy play allowed them to scratch out two runs in the eighth. Pedro again didn't look like his latter Mets self. In the AL, rain held to bay, sloppy play (three errors) helped the Yanks win.

Thursday, October 15, 2009

Boopsie Isn't Having It

Commentary, including on WG. More.

Wednesday, October 14, 2009

Sotomayor Alert

And Also: In a Democracy Now! segment about world food shortages (largely a result of policy judgments), a striking fact involving hundreds of thousands of farmers committing suicide was referenced. More here.

Justice Kennedy wrote what appears to be the first concurring opinion in the denial of cert. this term, one of a few such cases where a justice notes that important issues are involved but for some reason it is not an ideal one to accept. (h/t) He noted:
To the extent that New Jersey law allows a trial court to impose the onerous costs of class notification on a defendant simply because of the relative wealth of the defendant and without any consideration of the underlying merits of the suit, a serious due process question is raised.

This arose out of a breach of contract case involving a dating service. Kennedy noted that the case involved a decision that was not final as well as a bankruptcy matter which also puts things on hold for various reasons. So, it was not the best case to take. Of interest, Roberts and Sotomayor joined the brief opinion. As with active questioning, sounds like Sotomayor is getting into the thick of things. Meanwhile, she also presided at a marriage ceremony for an ex-aide.

Some video and analysis from her confirmation can be found here. Interesting "people on the street" footage.

Tuesday, October 13, 2009

Mayoral Debate

And Also: A second mayoral debate will be shown on a local network affiliate, but this one (of two) was only shown on NY1, not available on Dish Network. [It was shown on a PBS station.] Meanwhile, good cliffhanger for Drop Dead Diva. Missed Army Wives, thinking it would be repeated on Monday. Not!

NYC is having a mayoral race -- MICHAEL BLOOMBERG versus some guy. Oh well, it's Bill Thompson, who was president of the now defunct Board of Eduction and current city comptroller. Now, originally, MB would not have been able to run. The city had term limits and the people rejected overriding it even though members of the city council desperately wanted them to do so. But in part because he was seen as a savior in poor economic times, the city council eventually on its own did find a way to overturn them (with a few votes to spare). And, thus we now are inundated with anti-Thompson commercials so much that some people (not just me) are starting to get annoyed. Given the mismatch (and few T ads), it is just a bit too much.

Since he was about to be term limited out, MB changed his mind and supported them, as he changed parties to fit his political campaigns. MB is socially liberal in various respects (pro-choice, for strong gun regulation, big on local health regulations involving smoking and transfats, etc.) and once a registered Democrat, but running as one here -- even with his money -- is tricky. Just ask those in the four-way comptroller race that required a run-off. So, he changed to Republican and with help of the support of 9/11 mayor Rudy G., he won in '01. He eventually switched to independent, but continues to support Republican candidates.

The term limit matter pisses me off. I see it as a basic violation of the rules, even if there was some small print that allowed overriding the people's wishes. I say this as someone who is not a big fan of term limits overall. But, there is a right way to do it, and one aspect would not to pass a blatantly self-interested measure (e.g., let the new rule start after the next election for each office involved). And, he in particular has too much of a "you need me to save yourself" vibe. The fact he avoids needing campaign money (but as noted in the debate, finds another way to use money to influence people) because he is a billionaire is surely a mixed blessing. I can't damn those who don't have such money for needing to accept campaign donations from various interested parties, like most non-billionaires do.

I think the health thing was taken a bit too far. Not surprisingly, I also don't like his Republican involvement. His push for a Jets stadium in Manhattan is also a negative. My NY public school connection (a teacher) opposes him on education, even though she is personally conservative on various issues. I also want a more progressive voice overall. Honestly, yes, he is no Rudy Giuliani, who was an authoritarian asshole, though he supports Rudy for governor. I can stomach him as mayor, which is more than I can say for various Republicans. And, he doesn't have the strongest of opponents, though BT does have a career in city public service that deserves respect. But, there is enough to not vote for MB all the same.

In honor of Bloggers on the Bus, here is a local blog on the debate. I'd add that underdogs often focus on attack, but yes, he needs to also focus on why he brings different voice. Oh, that yes/no lightening round was lame.


Jets D go to sleep in 4Q ... are fans to think that the team in effect had a false start? Interesting refutation of the "United States is ..." just so story promoted by Civil War aficionados. Bloggers on the Bus was good if incomplete, but why no source material?

Monday, October 12, 2009

Evening Update

A couple enjoyable foreign classics -- A Brief Encounter (guess they had ads before movies back then too) and Tampopo (good companion piece to The Ramen Girl). Rockies closer blows it again. Go Dodgers!

Rhetoric is nice, but ...

And Also: Frank Rich had a good column recently on "Wrong Way" McCain, underlining my constant thought -- why in the hell does anyone take these people seriously? But they do; they do, including some Democrats. Good discussion on the cross case.

As to Glenn Greenwald's piece today on Obama's nice words (though anonymous members of the administration [and/or his chief of staff] badmouth progressives who support the ends promoted) but lackluster deeds on gay rights (weekend events led him to address a topic he rarely talks about), I admit that I found his speech impressive. I found Bush's at times nice words of little value given his deeds. Also got the idea he was just reading stuff at times, it wasn't coming from his heart or as a reflection of his mission/deeds.

[A weekly discussion of news in this case is Gay USA; the hosts were split on last weekend's march, but neither are a big fan of HRC on this issue.]

So, you have to guard against that sort of thing now. Perspective also means, however, to remember the two simply are not on the same level. Justice Thomas (btw the Stevens' interview was straightforward but his down to earth style helped) noted that when writing his opinions, he had to address the wishes of the majority. So, he might only stop at sixty yards, even if he wished to go eighty. A similar metaphor can be applied here -- Obama doesn't go anywhere as far enough, even to the degree he is able, but does go further than some. And, he provides a possibility of going further that others might not.

Still ... red flags were raised during his campaign. In Audacity of Hope, Obama referenced a call from a lesbian upset at his reference of "my religious traditions in explaining my position" opposing same sex marriage. He admitted that he might be wrong and would be open to change. But, why should his personal religious beliefs matter here? Some oppose abortion in many cases as a personal religious matter, but still do not support a law that selectively favors their own religious beliefs. He had a more supportive stance as state legislator, which is not too shocking given the higher you go, the more compromises you sometimes make. But, pragmatics is one thing; use of religion in this way (a matter that was a red flag overall to me) is a selective slap.

Also, the "have patience" approach Obama and others promote also is harder to take since there are measures that can be done that are half-measures, but more than is being done. As with torture investigations -- a true full fledged investigation would have taken time, so other things could be on the front burner while a investigation slowly took place ... for instance, the military policy could be put on hold. There is in fact a special ability to do this while we "fight two wars." And, the solicitor general does not have an obligation to support unconstitutional DOMA legislation (just the opposite), but apparently Obama thinks it bad and all, but not that. Not sure how to defend that.

BTW, one comment on GG's thread spoke about the libertarian approach to marriage. But, it simply is not totally "private," even if you call it a "civil union," since there are so many public privileges and immunities involved. The recent book on same sex marriage I discussed recently underlines the point. Some want people to have the ability to set up a sort of Chinese menu approach to benefits, but putting aside how unwieldy this tends to be in practice, society will likely decide various rights/privileges are best supplied to civil union relationships. Or, at the very least, that category would be a special one. This also underlines my recent right to privacy discussion that reminds that little is totally private which doesn't mean important aspects are.

Obama, and this is amusing given some of the criticism, is at heart pretty conservative in various ways. There is potential to do some good, but he clearly will have to be pushed. This is aggravating and has potential in some equal measure.

Morning Update

In a battle of relievers, the Rockies closer blew it, Phillies ahead 2-1. Today is a dubious honor for Italians given all the baggage and that he "discovered" something many others knew about already. But, if we "celebrate" it with the right amount of introspection, not just by parades and shopping, the day has value.

Sunday, October 11, 2009


Alito and Roberts were standard/bit boring interviews. Red Sox blew it, helped by the Mets' former closer (eighth) with a former Mets relief guy getting the win. Former Yank scored the winning run. Giants had another blowout and Dallas won/Pats lost in OT. Twins blew another one late. It's their thing. One series alive now.

Some Thoughts on Justice Thomas

And Also: Dark Bargain: Slavery, Profits, and the Struggle for the Constitution provides a well written account that reminds that it wasn't all high principle and James Madison. I was less impressed by this creative view of the Thirteenth Amendment, particularly its somewhat over the top tone. This is unfortunate since I think his basic point has value.

I'll sum up the interviews with the justices after I watch Alito, Roberts and Stevens, but a bit more can be said beforehand. The interviews thus far came in two paths: a regular C-SPAN woman interviewer sat down with a particular justice or Brian Lamb in effect got a tour of the justices' chambers. Justice Breyer, who was the first interviewed, had a bit of both. Again, Souter did not take part. As to his replacement ... a good discussion on how to properly handle a judicial nominee on their approach to the law, citing an interesting case that showed no justice now simply "applies the law" without somewhat subjectively interpreting its context. See also my later comment, where I find Prof. Kerr's comparison of Sotomayor with Roberts lame.

Justice Thomas was in the former category, though he was interviewed by Lamb a few years ago for the Q&A series. There Thomas' anger at some critics shows up; here he mostly avoids talking about it, just noting he had a bad time during the hearing process and does not pay much attention to media coverage. Thomas does compliment Jan Crawford Greenburg in particular, which is not too surprising given her book puts him in a favorable light. He also explains that he finds the written briefs more helpful, but does like to listen during oral arguments. This is fine, really, but rarely asking questions is one thing. Never is quite another, particular since his perspective could be helpful, such as when he asked one during an affirmative action case.

I'd add that I think the guy gets a bit too hard of time -- he is not just a Scalia mouthpiece; in fact, he is much more consistently (for good or ill) "originalist" than Scalia. Thomas might not ask questions during orals, but does make himself known, giving speeches and being involved in public service. One conservative leaning blogger once told me that Thomas also writes well, you know from his opinions what the Court decided and such. Thomas himself noted he was pleased when someone told him that. I can't really say though he does seem to have a clear writing style, which you can say even if you disagree with the substance of his opinions. I also liked when he said that the opinions he liked the most was ones that did not affect too many people -- he did not relish affecting the lives.

He is also a hard worker (he noted in fact that he would like more cases, to keep busy) and diligent about his job. Thomas clearly seems to see that he has an important duty to perform here. He comes off as a bit cold, which is not too surprising given the harsh criticism and such Thomas had to handle, but I can respect him on various levels while still opposing him on others. I think he was an unfit nomination and his behavior during the hearings was in various cases a disgrace. But, someone like him -- and I'm not trying to be patronizing here -- is a good fit for the Court overall.

Maybe not him personally, but so be it.

Saturday, October 10, 2009

Baseball Wrap-Up

And Also: The interviews with the justices in C-SPAN Supreme Court Week have been interesting though Scalia came off a bit badly (didn't seem comfortable even as compared to someone like Thomas).* Souter didn't join in though he had a few comments in the main documentary and recently was interviewed by a former law clerk. There is a special value here, one that should be followed by local news sources for local members of government too.

''We got up to take the dogs for a walk and when two beagles don't want to go outside, I don't see how baseball players would see this as a real good day to be playing,'' he said. ''It was snowing and 18 degrees, not very conducive for baseball.''

Yes, the Phillies/Rockies game was postponed on account of snow. Imagine if they were one of the teams that can potentially play in November. Meanwhile, the Cards were swept, with the wrap-up a tad snarky:
The Dodgers were already up 3-0 in the third inning when starter Joel Pineiro dropped Pujols' simple toss at first for an error on James Loney 's grounder for the lifeless Cardinals beset by bad play this series.

Holliday, who dropped a fly ball for what would have been the final out of Game 2, got a standing ovation from a sellout crowd of 47,296 before his first at-bat with two men on and one out in the first. Then he tapped out to the mound. Pfft.

The summary makes a point that the Cards were 1-9 after they wrapped up their division. This underlines a point: a team should stay flexible and in game shape, showing one problem with long layoffs. We also have one of those many personal stories found in sports:
Padilla, designated for assignment by the Rangers in early August [personal problems], was 4-0 the final month with the Dodgers before shutting down the Cardinals on four hits over seven innings in his first career postseason appearance. After escaping a bases-loaded jam in the first inning he was dominant, retiring 19 of 21 hitters against a team he last faced in 2003.

The Dodgers struggled some down the pike, but ended strong by winning the final series against the Rockies. We will see if a lay-off matters now.


* Kennedy's interview was broadcast first and he does come of as interview friendly, if perhaps a bit patronizing. Sotomayor, who has had a bit of overexposure (I went to a local supermarket and her picture was on the cover a small booklet in honor of Hispanic Heritage Month), also came off well. Ginsburg was her usual soft spoken, somewhat frail (but clearly with a tough core) looking self. Breyer comes off like one of his questions -- a personable law professor. And, I skipped O'Connor, since she too has been a bit overexposed lately, giving a lot of interviews and so forth after she retired.

New Audio

Oyez.com has posted the oral audio for the 2008-09 term. It does not have transcripts available yet [some are] as is the case for recent terms, but this is good stuff. The SCOTUS website should have it as well. Kudos also to the convenient new comment system at VC, including the ability to edit briefly after posting.


Phil Cuzzi saw the ball as foul, called what he saw,” said the umpire crew chief, Tim Tschida, who acknowledged that the call was wrong after seeing a replay. “There’s a guy sitting over in the umpire’s dressing room right now that feels horrible.”

Oh well. At least he feels horrible, right? Twins blew chances repeatedly, so hey, the guy had one specific job -- make outfield calls -- and didn't do it in the top of the 11th in the playoffs. Who cares, right? Well, those who want umpiring at the most important time of the year that is not subpar, perhaps. Repeated questionable calls in the Rockies' games underline it is not just Twins' games. Not that the play by play (contra Darling's analysis) was great either. And, subpar teams make enough of their own mistakes without additional "help."
In a reversal of Bush administration policy, Attorney General Eric H. Holder Jr. said in March that the government would not prosecute medical marijuana distributors who comply with state laws. That announcement has emboldened Rhode Island to adopt legislation similar to New Mexico’s: it will license three nonprofit “compassion centers” to grow and dispense the drug by 2012. At least six other states are now considering the model.

But in recent weeks, law enforcement officers, some of them federal, have raided dispensaries in California and Washington State, and in the absence of any actual change in the federal law, many still fear prosecution.

This is absurd. Marijuana should not be illegal to begin with, for any number of reasons, including basic liberty and a pragmatic use of resources. But, can they at least lay off the medicinal marijuana growers? Give me a break.
Rachel Maddow did a segment on her always-superb show tonight about Ralph Lauren's recent bogus legal threats against various blogs -- including this one. Those DMCAs sent by lawyers for Lauren demanded the removal of a badly photoshopped ad which morphed a model into a lollipop-headed stick figure.

A noteworthy story really, even if the specific context seems trivial -- how many times do they overly photoshop or airbrush photos? As the person noted, this case is basically silly, but preemptive removal of such clearly protected material pursuant to the DMCA can very well affect much more serious material as well. And, the strategy here is a good one for others as well, who are just too bloody weeny-like when criticized:
So, instead of responding to their legal threat by suppressing our criticism of their marketing images, we're gonna mock them.

Rachel had at least one questionable moment last night all the same. During the segment on Afghanistan, where the MSNBC commentator went all Walter Cronkite and argued that the U.S. mission in Afghanistan in effect jumped the shark, our mission was compared to the one in Iraq. There -- unlike here -- we had a civil war and the people wanted the military to step in. Actually, I sort of consider there to be a civil war of sorts (at least) in Afghanistan. The Taliban (and others) are trying to gain control from the central government, right?

And, yes, to some extent, American forces (mostly American) were welcomed after we f-ed up the country. (Another fact not referenced here -- why forces had to be sent in.) But, only to an extent. Many still didn't want us there. Some in fact want us in Afghanistan (or Pakistan). Not to dwell on the point much, and there are differences, but I think they were simplified a tad here. RW should show more nuance when promoting ("mandatory" viewing!) special reports on her network.

Oh well. My desire for the Sox and Cards not to get to the next round was helped some more today. I knew the Twins were hopeless ... but do they have to rub salt in the wound? A-Rod doing much of the damage was not great news either. I didn't kill myself by watching much of the game, but the manager's expression when his second player ... versus the back-end of the Yanks bullpen ... swung at the first pitch with the bases loaded, resulting in another cheap out said it all. He took off his cap, looked away, and shook his head. The third out was the work the count / fly ball effort that they needed. Who needs the Mets?

For clutch play by gritty gamers, it is best to watch the Angels or Dodgers.

Friday, October 09, 2009

Obama Wins Nobel Peace Prize (Seriously)

Not quite as critical as Glenn Greenwald (good link to Democracy Now!, including Tariq Ali's comments), but sort of on board with the "uh ... what" reaction. The prize can be somewhat aspirational and symbolic, but it's a bit too much at this vantage point. Cf. the years Carter and Gore spent on their causes before they won their prizes.

Playoffs: Day 2

Theme: questionable umpiring and good pitching ... except at key moments. Rockies hang on for the split. Cards OF messes up and closer fails repeatedly to get final out; Dodgers ahead 2-0. Angels finally beat Sox, no rally monkey appears to be needed.

Thursday, October 08, 2009

Human Sacrifice Channel?

And Also: Playoffs begin. Rockies ace falters, mismatch in the Bronx leads to expected result, but Dodgers bullpen beats Cards ace.

Probable highlight of oral argument thus far:
Suppose you have the ethnic cleansing channel on cable TV, and there is no --this is taking place in a country that's beyond our power to influence.

He also talked about gladiatorial contests (the government was wary -- that might be of historical value) while Roberts followed up with a human sacrifice channel. Alito, however, was the one who got his moment in the sun -- citation by Steven Colbert last night. Point is, unless the film makers are directly involved with setting up such activity for the purpose of filming, that is, conspiracy to do the act itself, it should not be outlawed.

Scalia was on board with this principle, noting that the citation of child pornography (the Supreme Court held that selling that could be banned since it promoted the act and the mere visual evidence of it could traumatize) is of different caliber since obscenity (or something like it) is treated as a special case. Bottom line, putting aside the problem with obscenity, children clearly are. And, even there, line drawing can be difficult (e.g., see Brennan/Stevens concurring or attacks on certain types of photography) with special cases arising of particular concern.

So, the exception should be interpreted narrowly. Animals are probably not traumatized by the mere knowledge that certain videos display cruelty. The law already has various exceptions for educational use and so forth.* It is unclear if the dog videos in question would not fall under one. As noted in the oral argument, there is a vagueness problem here. And, the nature of the case underlines this problem. The law was specifically concerned with "crush videos" where animals are purposely harmed/killed for sexual fetish purposes. But, the videos in question here are nothing of the kind. The law is clearly overbroad. Mention of the mere "depiction" underlines this.

The First Amendment free speech provision should be interpreted to require anything not addressing acts as such be held to a very high test. Situations like saying "kill him" to someone with a gun in their hands can be imagined, where it is directly linked to action or a category of speech accepted as illegitimate (e.g., slander). And, case law underlines even these must be carefully tailored, more so than this law. It is proper to outlaw the production of such videos (or the sale in interstate commerce) to the degree that it requires illegal acts to do so.

But, we don't prohibit videos that show crimes being committed. They are instead shown on the news or web. We surely don't do that when the acts are not crimes where they take place. Again, yes, child pornography is an exception. Obscenity is one too, but extending this wrongminded policy to include more non-children related conduct only worsens the problem. It underlines the problem with having exceptions to basic human rights like freedom of speech. Crush videos, after all, can be deemed a type of obscenity. And, animal cruelty in general probably, if the term is not arbitrarily -- as it is in this culture -- limited to sexual matters.

This, I guess, points to the charm of narrowly attacking the statute on vagueness grounds or something. Or, it shows -- no matter how distasteful -- how free speech should be truly upheld. Yes, even if ethnic cleansing (which seems news related anyway) will be showed on television somewhere.


* In fact, the exception is broad indeed: "serious religious, political, scientific, educational, journalistic, historical, or artistic value." Now, what "serious" means is open to question, but any reasonable interpretation would cover a lot of ground. I personally don't understand how the dog videos in question are not in some fashion "educational," particularly when at least one was filmed in a locale where the practice showed is legal.

And, what does "artistic value" mean? Crush videos aside -- though why not? -- there must be various serious artistic works that result in maiming of animals and so forth. Bullfighting was noted in legislative debates not to be covered. It's an important cultural matter. Selective moral choices is a questionable way to determine things for First Amendment purposes.

Wednesday, October 07, 2009

WWI Cross Case

In Peter Irons' book God On Trial, one of the cases involves a nearly thirty foot high cross used as part of a military memorial. A recent federal ruling held it "communicates the primarily non-religious messages of military service, death and sacrifice." One complication was the federal government stepping in to take control. It was a long drawn out affair, apparently still ongoing, even after twenty years. The size of the sectarian symbol and extended involvement of the government, including the federal government, makes it a troubling one. Justice Kennedy, who generally supports allowing religious symbols on public property, once noted:
Symbolic recognition or accommodation of religious faith may violate the Clause in an extreme case. [n1] I doubt not, for example, that the Clause forbids a city to permit the permanent erection of a large Latin cross on the roof of city hall. This is not because government speech about religion is per se suspect, as the majority would have it, but because such an obtrusive year-round religious display would place the government's weight behind an obvious effort to proselytize on behalf of a particular religion.

The importance of context in cases of this nature suggests that a cross on top of a city hall might not be the same thing as one in a park, particularly one used as some sort of military memorial. The first religious display case decided by the Roberts Court dealt with a Ten Commandments monument in a park, but it was treated as a free speech case -- the government did not have to allow other religions to put in place their own symbols once one religious symbol was in place if the symbol was in some fashion government speech. Thus, it would likely be different if a public forum was involved where the public was allowed to insert things.

The first Establishment Clause religious symbol case for this Court involves a much smaller cross in the middle on nowhere, and might be disposed of on standing grounds. We have been down the standing road in this area before with these guys. The Court as a whole (at least a majority of it) does not only want a smaller docket for itself, but -- in various ways at least -- to make it harder to bring cases across the board. Breyer might sign on, since he has shown signs wanting to avoid these types of controversies when necessary. Stevens might fear that doing otherwise will open the way to a too "liberal" allowance of religious symbols on public lands.

This is the sort of case that deals with an important principle, even if it might not be something to lose sleep about as a specific matter. This is underlined by Scalia's insistence that a cross display honors all veterans, even those who do not share the religious symbolism it portrays.* It takes the Catholic litigant here, ironically someone who might not be deemed worthy to bring the case, to remind that selective use of religious symbols on public land is a problematic enterprise. This includes Congress going out of its way to support it, shifting the tiny bit of land it is on to private hands only as long the cross is available. This is clear religious entanglement.

The case is comparable to the last one in that the recent controversy arose when Buddhists wished to put their own symbol nearby and the National Park Service refused. The diversity of possible religious points of view here is underlined by the fact that Arlington National Cemetery "offers 64 different religious symbols for headstones — including those for Christians, Jews, Muslims, Buddhists and Wiccans." Thus, there, a religious symbol on a tombstone or the like does not send a message to the reasonable observer of religious favoritism, to paraphrase current precedent.

Such diversity underlines that use of only one religious symbol to honor war dead [or veterans in general] is a problematic enterprise with clear religious favoritism aspects. It is not the same thing as allowing some group to put a Ten Commandments display among others, even if the government in some fashion endorsed it. [Not that I think that is legitimate, but the Supreme Court in various cases does.] If nothing else, the case provides a troubling fact scenario. Pragmatically, it might be useful to get rid of the case, but on principle, this is problematic. Likewise, the method used very well can inhibit many more challenges, even when the display is worse than this one.

More material here.

[Further Thoughts: Justice Ginsberg, as compared to Breyer, does not go to the "Red Mass" before the start of the term because past anti-abortion sermons upset her as too strident. The source of this tidbit is a book that provides interviews with various well known Jews. Symbolic acts are quite important to many.

In her chapter, we also learn that RBG also (after being told about it by a law clerk who noted various Orthodox Jews wrote letters on the matter) discussed pushing to allow lawyers to have "In the Year of the Lord" removed from their certificates from the court. One unnamed justice (Scalia?) noted it was good enough for past Jewish justices; it was not good enough for her. This is a personal matter, involving one's own certificate, true, but so in a fashion is the symbol used to honor war dead in the eyes of some veteran involved.]


* Scalia showed how the misguided often are quite passionate in their error:
Justice Scalia grew visibly angry. "I don't think you can leap from that to the conclusion that the only war dead that that cross honors are the Christian war dead," he said. "I think that’s an outrageous conclusion."

"That" being that Jewish tombstones don't tend to have crosses on them. It's charming that the government selectively uses sectarian symbols to honor everyone, or so they do in their minds, but this doesn't necessarily make it acceptable.