"Why Arizona Drew a Line"

[Update: Rachel Maddow interviewed a leader of a movement involved in the writing of this law on Thursday Night. It was not friendly -- she asked about various dubious associates of the group, while the leader suggested she was a tool of the Southern Poverty Law Center. Friday Night (update 2) she pointed out the guest misled or flat out misspoke/lied.

The basic substance of the law was not really discussed; the comments that the criticism was one-sided could have been addressed by Rachel reminding him some of it came from the Republican side. I'd also add that coverage on the content of the measure that goes beyond the one infamous aspect of the law would help too.]

Kris W. Kobach, a law professor at the University of Missouri at Kansas City, was Attorney General John Ashcroft’s chief adviser on immigration law and border security from 2001 to 2003.

I noted that appeals to the federal government to help Arizona deal with immigration problems is something of a fools' errand, since the demand for illegal labor will always mean a ready inflow of undocumented people. We can add to this a ready supply, worsened by NAFTA and other problems, which adds to the drug and violence in Mexico as well. But, we still have this guy speaking of the 'real' problem -- "President Obama and the Beltway crowd." Interestingly, he also notes Phoenix ("the hub of human smuggling") is a prime problem area. Why, one wonders, is the mayor there in support of suing to stop the law?

The law has received some strong opposition, as noted, Linda Greenhouse and others see it as a police state tactic. The symbolism is horrid. You need not think we are entering Communist Russia (after all, France etc. has permit laws of this sort, at least in some degree) to have problems with it. This without being concerned with certain aspects of strong illegal immigration laws that some groups in particular find very troubling if taken seriously. But, I will now focus on the points made in the positive op-ed here.

[1] The feds also require you to have immigration papers. The problem with this is that in practice this is probably only an issue when checks are made at places of employment and a few even more avoidable situations. It is quite different for a more intrusive in everyday practice state government, including local police, to set up such a regime.

[2] "Reasonable suspicion" is a reasonable rule. A patently suspect example is provided. But, in everyday practice, again, life is a tad more complicated. Inner city residents can tell you that this sort of open-ended inherently vague rule (especially with the provision where people can sue if the state doesn't enforce things) will involve much more iffy situations than that. "Reasonable" by definition means that many perfectly innocent people will be affected.

[3] Racial profiling is prohibited by the law. Uh huh. Oh come on. And, what does "as soon as is practicable" mean? The whole point of the law, underlined by this op-ed, is that the feds aren't doing their job enforcing things. A rule as applied to arrests also doesn't address racial profile stops, does it?

[4] The driver's license rule is helpful since it is deemed evidence of legal residence. I really haven't heard about this yet, but it seems a way to invite more counterfeit driver's licenses.

[5] The feds have not pre-empted this. The very case it provides, however, makes the discussion untrustworthy, since the op-ed said something has to be "expressly forbidden" while the opinion says it also can be implicitly so. I knew this myself. But, was never a chief adviser to Ashcroft, so who am I to say? The bottom line is probably a debatable question, but the op-ed is wrong on a key point.

Some aspects of the law, arguably, might be reasonable though the former governor -- no flaming liberal -- probably would have vetoed it given past practice. But, the most controversial section is symbolically and likely practically not reasonable at all. This op-ed, though appreciated, did not do much to convince me otherwise. The potshots at Obama didn't really help. Can these people not help themselves?

The controversial measure is already causing a lot of trouble and very well might not survive judicial review. It is ultimately more political than sound public policy. Given the subject matter, this is as unsurprising as it is unfortunate.

Empathy Again

SALAZAR v. BUONO: special note is deserved for Stevens' excellent dissent, his WWII service only adding to its conclusion. Also, Alito's concurrence alone is filled with alleged statements of fact and judgments ("disturbing symbolism" ... "unlikely to satisfy" etc.) that appears to be influenced by empathy. More than bare law is involved.

Mr. Jefferson and the Giant Moose

In this interesting little book, Lee Alan Dugatkin discusses Jefferson's attempt to address that "America was viewed by many Europeans as a degenerate backwater" in part via said moose. A look at natural history and its political implications from Jefferson to Thoreau.

24 Hr, 3-0

Such is the Mets line. First place lasts a bit longer ... Phils up next. After losing 22 in a row, the Pirates also won a series off the Brewers. Today in the 14th, scoring in three innings after the 8th. Two players were ejected. Bit of spunk there. Another crazy game.

Cross Case

An analysis of a split decision with more sides than a cross and ends with "to be continued." This was expected. Stevens' dissent was joined by Sotomayor. Kennedy accepts use of selective religious means to honor soldiers but not all public uses of crosses.

Arizona Immigration Law A Whole CAN of Worms

It is problematic for many reasons (e.g., suing when federal law isn't enforced?). But, putting aside Sen. Graham and some hypocrisy (4/27), some national panacea won't come. There will always be illegal aliens, especially as long as there is a demand for their labor.

Two more "don't trust women" laws passed

And Also: Now that Linda Greenhouse only guest blogs, she is much more blunt ("Breathing while undocumented, without a civil liberties lawyer at hand, is now a perilous activity anywhere in Arizona.") A young John Roberts has a cameo.

[Update: Rachel Maddow's segment about these laws on Wednesday noted the forced ultrasound requires vaginal insertion. Sounds great for rape victims! This sort of invasive procedure has clear 4A implications. See, e.g., here.]

Two laws were passed over in Oklahoma over the governor's veto:

Though other states have passed similar measures forcing women to have ultrasounds, Oklahoma’s law goes further, requiring a doctor or technician to set up the monitor where the woman can see it and describe the heart, limbs and organs of the fetus. No exceptions are made for rape and incest victims.

The second measure passed into law Tuesday protects doctors from malpractice suits if they decide not to inform the parents of a unborn baby that the fetus has birth defects. The intent of the bill is to prevent parents from later suing doctors who withhold information to try to influence them against having an abortion.

The governor said the second law is immoral:

“It is unconscionable to grant a physician legal protection to mislead or misinform pregnant women in an effort to impose his or her personal beliefs on a patient,” [Gov.] Henry said.

We recently saw two laws passed by a nearby state also with contrasting functions -- one required more effort be made to see if the woman going for an abortion was not mentally unbalanced while the other removed mental health as a reason for late term abortions. Here, one provision forces a woman who wants to have an abortion to listen to information while those who might originally not have done so are denied a means of restitution if a physician leaves out important information about the fetus. Physicians can act like priests and get away with it.

This underlines the double standard that these laws often tend to obviously have. Teenagers need to get notification or consent (with some often byzantine judicial bypass regime in place) before having an abortion but not before they plan to give birth.* Women are forced to undergo a medical procedure even after being raped, but only to try to prevent abortions. Such a law was already declared unconstitutional, but this is not a barrier for anti-choice legislators.

And the beat goes on.

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* See, e.g., this article and sources cited therein. One point:

The majority of states require minors to engage their parents or legal guardians in their choice to obtain an abortion, but not in decisions to give their babies up for adoption or to become parents.

This is a moral choice to favor childbirth even though often assistance (from parents or otherwise) for the other choices are as or more important. Many years later mourn giving up children for adoption. Many have children who they might not be able to handle or who it might be more moral to not have in the first place.

A neutral law that requires parental involvement can have problems too, but at least it would not be so slanted in favor of the anti-choice side while claiming to be in the best interests of the teenagers.

Boobquake

Social protest, science experiment or just fun? You decide!

Justice Clark's Abortion Article

As I briefly noted earlier, I finally had a chance to read an eleven page influential law review article by the then retired Justice Clark, "Religion, Morality, and Abortion: A Constitutional Appraisal" (1969). It was cited in various lower court rulings decided pre-Roe , by Justice Douglas a few times as well and briefly cited by the majority ruling in Roe. Supreme Court links here. It is unclear to me why it is so hard to find online; it is not even on Lexis. Don't know about Westlaw.

In the first case Douglas cited the article, he did so to underline that abortion is a disputed moral/religious subject matter ("it is, of course, caught up in matters of religion and morality"), so leaving it up to juries to determine if one is required for "health" is the road to arbitrariness. Clark cited the religious debate over the issue, belying the idea that "Christians" cannot have an abortion by definition:

Throughout history religious belief has wielded a vital influence on society's attitude regarding abortion. The religious issues involved are perhaps the most frequently debated aspects of abortion. At the center of the ecclesiastical debate is the concept of 'ensoulment' or 'person-hood,' i.e., the time at which the fetus becomes a human organism. The Reverend Joseph F. Donseel of Fordham University admitted that no one can determine with certainty the exact moment at which 'ensoulment' occurs, but we must deal with the moral problems of aborting a fetus even if it has not taken place. Many Roman Catholics believe that the soul is a gift of God given at conception. This leads to the conclusion that aborting a pregnancy at any time amounts to the taking of a human life, and is therefore against the will of God. Others, including some Catholics, believe that abortion should be legal until the baby is viable, i.e., able to support itself outside the womb. In balancing the evils, the latter conclude that the evil of destroying the fetus is outweighed by the social evils accompanying forced pregnancy and childbirth.

Note the "viability" dividing line. Justice Douglas "would affirm the dismissal of these indictments and leave to the experts the drafting of abortion laws that protect good faith medical practitioners from the treacheries of the present law." He cites Clark's "preference" that courts basically rely on the medical judgment of doctors here. And, Justice Blackmun in effect did so. In one collection of Douglas' communications, Douglas noted at one point while Roe was pending that he favored a line being drawn at the first trimester. The law review article makes clear that Clark does not think conception should be the line drawn. Douglas quoting in Roe's companion case:

To say that life is present at conception is to give recognition to the potential, rather than the actual. The unfertilized egg has life, and if fertilized, it takes on human proportions. But the law deals in reality, not obscurity -- the known, rather than the unknown. When sperm meets egg, life may eventually form, but quite often it does not. The law does not deal in speculation. The phenomenon of life takes time to develop, and, until it is actually present, it cannot be destroyed. Its interruption prior to formation would hardly be homicide, and as we have seen, society does not regard it as such. The rites of Baptism are not performed and death certificates are not required when a miscarriage occurs. No prosecutor has ever returned a murder indictment charging the taking of the life of a fetus. This would not be the case if the fetus constituted human life.

But, Clark discusses how the matter is debated by various experts. Viability as such is not the line he chooses (he notes it is not the line in all jurisdictions; if it is, it is not set in stone) though it was favored by the lower courts that decided the abortion issue pre-Roe. Legislatures would have some discretion to determine "that point between prevention of conception and the viability of the fetus" where regulation or even prohibition is allowed. But, their discretion would be limited. Clark had a firm belief in a right to privacy:

Unless the State has a compelling subordinating interest that outweighs the individual rights of human beings, it may not interfere with a person's marriage, home, children, and day to day living habits. This is one of the fundamental concepts that the Founding Fathers had in mind when they drafted the Constitution.

The article begins with a notice that current law and policy was no longer lagging so much behind actual practice, Kinsey cited to show how the two often did not mesh. Clark is clearly against "hypocrisy" in this area. The realization by doctors and others that reform was required was clear. He cites Holmes to argue that "moral predilections" should not be used to settle legal rules in this area. He also writes appreciatively of the rising concern of the "double standard" in being able to obtain abortions by social status and financial ability. Clark easily could have cited the public clinics at stake in Griswold on this point.

Since the "collective conscience of our society" is key in determining fundamental rights protected by that opinion, these societal developments are of particular importance in constitutional analysis. Likewise, Griswold underlines a degree of liberty in this area, even when human life in some form is at stake. But, case by case developments cannot solve all the questions and fine lines required here. So, he ends his article with a call for legislative action, circling back from the opening quote, citing Nehru:

Thought without action is an abortion; action without thought is folly.

And, as Roe noted, he pointed out a few states have already "led the way." A lot packed into those eleven pages .. and for a law school (Loyola) associated with the Catholic Church to boot! I wish it was open to a wider audience.

Mets OD?

For some reason, ESPN scheduled three Mets games in eight days (two Sundays and tonight). Yesterday's game was shortened to 5 (+ one pitch) and today's was rained out. Guess who plays next Sunday night?

Come on Hilden!

And Also: Ten Things I Hate About Me by Randa Abdel-Fattah might be a bit simplistic at times and settles a bit too predictably, but I basically share the overall positive review here. After all, lots of adult books are a bit simplistic too.

Make no mistake, then: The truth is that the Court simply doesn't care enough about animals – their suffering, their lives – to protect them in the same scenario in which it would quickly protect humans.

I expect more out of Julie Hilden than this emotional appeal, even if she supports animal rights. The ruling was first noted here and a link to another person who criticized it was provided with the note that I refuted (or tried to) the claim over where it was made. But, Hilden is more of a First Amendment absolutist. Up to a point, I guess. The "as applied" approach she suggests might have been best here would poison you in the end numerous times if applied consistently.

The basic problem with the law according to the Supreme Court was that it is overbroad. When it comes to the First Amendment, even laws that have some legal applications are repeatedly struck down if significant improper applications are possible. The burden of proof here should weigh heavily against the censorship side. A law that narrowly addresses a particular harm remains possible. But, Hilden et. al. continuously cite the horrors of crush videos as if the Court "crushed" the chance to stop their sale in interstate commerce. It did no such thing:

We therefore need not and do not decide whether a statute limited to crush videos or other depictions of extreme animal cruelty would be constitutional. We hold only that §48 is not so limited but is instead substantially overbroad, and therefore invalid under the First Amendment .

Hilden (along with Alito, who she praised) wanted the Court to interpret the statute with enough discretion that it not only is upheld to deal with crush videos but other types of harm. "Crush videos" (image of crushed kittens) is repeatedly cited as if this is what the law is all about. Not true. After all, the ruling is not about crush videos. It deals with dogfighting videos. And, if she is concerned with animal cruelty, why an exception for bullfighting? This was cited by the ruling; the ruling did not solely rest on the problem that hunting might fall within the law's ambit. The oral argument got a bit ridiculous talking about different kinds of possible animal fighting, but the point is true enough. Why is dogfighting horrible, but bullfighting not in this context? Culture? Not exactly animal rights focused, that.

The ruling underlines the folly of trusting the mercy of the prosecutor, underlining this very point:

This prosecution is itself evidence of the danger in putting faith in government representations of prosecutorial restraint. When this legislation was enacted, the Executive Branch announced that it would interpret §48 as covering only depictions “of wanton cruelty to animals designed to appeal to a prurient interest in sex.” See Statement by President William J. Clinton upon Signing H. R. 1887, 34 Weekly Comp. Pres. Doc. 2557 (Dec. 9, 1999). No one suggests that the videos in this case fit that description. The Government’s assurance that it will apply §48 far more restrictively than its language provides is pertinent only as an implicit acknowledgment of the potential constitutional problems with a more natural reading.

As the opinion says, when it comes to free speech, a special rule applies that doesn't apply in all cases -- overbreath that covers protected speech is of special concern. Hilden does not adequately counter this section. Her looser rule would cause problems in other areas. This includes an area of settled law that I share her disdain for -- obscenity. This was my point elsewhere -- repeated references to child pornography does not erase that the opinion here talks about depiction of animal cruelty. Depiction of child porn is allowed.

A law targeted purely to animal cruelty itself would not be the same thing, at least pursuant to this opinion. It also makes some difference that child pornography already is a settled exception, one that already overused in some contexts. Yes, obscenity law is horrid. But, Alito's dissent won't change that; it will make it a bit easier to expand. And, if "snuff videos" would be an exception is neither here or there, when the opinion noted that "a statute limited to crush videos or other depictions of extreme animal cruelty" might be constitutional.

The law should/could have been written more narrowly; when speech is involved, that is (or should be) a steady reminder. The message sent, including not trusting discretion that often is not applied that well, was a good one. No sale.

Sports Update

A college softball game was on yesterday and showed the importance of that final out. One side blew a four run lead but the other could not get that last strike in the bottom of the frame. Lost 6-5. Mets doing well now, even the weather helping yesterday, but it's a long season.

A bit of reading

I was drawn into the lives of the characters in the The Piano Teacher but found the resolution a bit choppy and somewhat unsatisfying (especially as to the Eurasian's fate). Also, finally read the whole of "Religion, Morality, and Abortion: A Constitutional Appraisal," quoted in various abortion rulings. Brief, but interesting.

Open Disclosure

And Also: Craig Ferguson was involved as a writer in a spin-off of Saving Grace (he had a supporting role). Most episodes of the first three seasons are online. The first episode was amusing and generally well done.

[This is in reply to Dahlia Lithwick's discussion of a death penalty case where the judge and prosecutor were later found to be having an affair (when's the Lifetime movie?), a problem even in a less serious case. I'm curious if the other issues in the case is one reason why no justice has appeared to dissent in denial of cert., the issues blocking a direct address of the issues or making it a clear review of a death sentence. OTOH, again, even a misdemeanor conviction on these facts would be problematic.]

In 1969, the Greenberg Commission, appointed by the Illinois Supreme Court to investigate Sherman Skolnick's corruption allegations leveled at former Chief Justice Ray Klingbiel and current Chief Justice Roy J. Solfisburg, Jr., named Stevens as their counsel, meaning that he essentially served as the commission's special prosecutor. The Commission was widely thought to be a whitewash, but Stevens proved them wrong by vigorously prosecuting the justices, forcing them from office in the end. As a result of the prominence he gained during the Greenberg Commission, Stevens became Second Vice President of the Chicago Bar Association in 1970. Stevens's role in the Greenberg Commission catapulted him to prominence and was largely responsible for President Richard Nixon's decision to appoint Stevens as a Judge of the United States Court of Appeals for the Seventh Circuit on November 20, 1970.

Justice Stevens writes about his involvement in the foreword of this book and those interested can "search inside" and read his remarks. They are well worth reading, including the value of a limited scope of investigation, a distinct contrast to the long drawn out affairs of some of the more "independent" prosecutors of later years. Another matter discussed is the importance of appellate judges publishing their opinions, including dissents. This was in part showed by a judge holding back from publishing his dissent in a case where improper influence was alleged:

"If there is disagreement within an appellate court about how a case should be resolved, I firmly believe that the law will be best served by an open disclosure of that fact, not only to the litigants and their lawyers, but to the public as well."

Charles Dean Hood's challenge on the impropriety of the affair was rejected 6-3, the majority of the Texas Court of Criminal Appeals disposing the case with the statement that it "fails to satisfy the requirements of [the relevant rules]" without saying why. This after a lower court found the judge and prosecutor “did not abide by their ethical and constitutional duties to disclose the fundamental conflict caused by their relationship.” No wonder:

21 former judges, government officials, and prosecutors filed an amicus brief in support of Charles Dean Hood’s petition to the United States Supreme Court asking the Court to hear the case. ...joined by Kenneth Mighell, former U.S. Attorney in the Northern District of Texas, Sam Millsap, former District Attorney for Bexar County, Texas, William S. Sessions, former FBI Director and federal judge in Texas, Mark White, former Texas Governor, and others

I tried to find the actual opinion dealing with the matter. Problem is the opinions in his case are repeatedly unpublished.* This is often the case for those deemed unimportant, but it also has the tendency at times to hide some important cases as well. In cases like this, an "an open disclosure" is particularly important. And, if one or more of the justices think this case warrants review, their own "open disclosure" of the facts are as well.

One sentence refusals and opaque unpublished rejections of serious claims is not the way to guarantee "the Nation’s confidence in the judge as an impartial guardian of the rule of law."

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* One [Lexis] summary suggests the problem:

US Supreme Court certiorari denied by Hood v. Texas, 128 S. Ct. 48, 169 L. Ed. 2d 43, 2007 U.S. LEXIS 9115 (U.S., 2007)
Writ of habeas corpus dismissed Ex parte Hood, 2008 Tex. Crim. App. Unpub. LEXIS 518 (Tex. Crim. App., Sept. 5, 2008)
Motion denied by, Writ of habeas corpus dismissed, Stay granted by Ex parte Hood, 2008 Tex. Crim. App. Unpub. LEXIS 520 (Tex. Crim. App., Sept. 9, 2008)
Habeas corpus proceeding at Ex parte Hood, 2008 Tex. Crim. App. Unpub. LEXIS 853 (Tex. Crim. App., Nov. 19, 2008)
Writ of habeas corpus dismissed Ex parte Hood, 2009 Tex. Crim. App. Unpub. LEXIS 561 (Tex. Crim. App., Sept. 16, 2009)

unpub = "unpublished"

A bit of research

Cheers for this piece where someone checked to see if touching the mound like A-Rod did to piss a pitcher off was verboten. The NY Daily News re-cap cited what happen but didn't check to see if others know of this "unwritten rule." Another incomplete article.

Keeping Faith With The Constitution (and Judges)

The below was in response to Dahlia Lithwick's latest, "The Surrendered Court: Maybe America doesn't want an immobilized judicial branch after all." It was originally posted to the Slate fray. Let me add that the title doesn't really do it for me, but it does let me dwell on some favorite themes.

The need: to answer Scalia's claim that flawed or not, originalism is best because: "the alternative, says Scalia, is for a justice to 'make the law what he thinks it should be.' " The usual blood libel. The term is touchy, I know, but the claim is just that -- it defames those who he disagrees with as unprincipled. Unlike he and his supporters. It is not "should," you ass, it's "as it is or can be." You might disagree with the analysis, but that doesn't make it unprincipled. People like me aren't dreaming up ideal states; we are working with the law as it is.

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One value of the nomination of Goodwin Liu is that he is an excellent legal mind that promotes a progressive point of view using the tools of the trade in ways understandable to all. This includes in a short book, downloadable for free online, he co-authored -- Keeping Faith With the Constitution. It is easy to read and geared to the general public.

For instance, on balls and strikes:

Although these attempts to simplify constitutional interpretation may have a surface appeal, they do not withstand scrutiny, as we show in this chapter and beyond. Ironically, the significance of Chief Justice Roberts's baseball analogy is actually the opposite of what he intended. Just as baseball players and many fans know that umpires over time have interpreted the strike zone differently in response to changing aspects and contemporary understandings of the game, so too do lawyers, judges, and ordinary citizens know that the faithful application of constitutional principles to new and specific circumstances demands attention to evolving social context.*

Those interested can go to the website and listen to Liu and Pamela Karlan provide short summaries of the basic themes of the book. Liu also wrote an interesting law review article entitled "Education, Equality, and National Citizenship," that defends a national approach mainly focused on the federal Congress. It is notable how he makes his case -- he has an extended discussion of efforts in the late 19th Century to use federal funding to promote education, largely because a good citizen, an equal citizen, needs some basic education. History, as with judicial interpretation can be the progressive's friend.

It is interesting as well that concern is made that "empathy" is code word for support of the disadvantaged. One frayster wondered about empathy for the police, military, school officials and so forth. That's why Madison et. al. thought judicial review was important -- to protect the powers that be. As one person noted:

To the extent that judicial review is a normatively attractive institution, it increases the chances that individuals and groups that are marginalized by other political processes will have their rights protected. In addition, the modern regulatory state often requires judges to interpret regulatory statutes intended to protect the rights of citizens against powerful private interests. The Republican appointments who now dominate the federal courts tend to stand the best aspects of judicial review on their head, interpreting ambiguous constitutional and statutory provisions in favor of interests that are already greatly overrepresented in ordinary political processes.

The Reagan/Bush courts still repeatedly acts against the will of the majority -- Heller, e.g., struck a democratically passed law. The Rehnquist Court struck down more federal laws than any other before. But, don't worry, unlike "the left," they only do this the right times. Judicial review provides a check against the majority, but not always -- often the majority is right. It's not all or nothing. Still, there is in various cases a certain extra concern.

Could it be that the law might even have a "liberal bias"? Originalism is deemed by some as a way to restrain judges. But, that alone isn't a reason to use it. Not that it apparently is working that well in various ways. Judging can be messy. Robots don't judge. People do. There is some discretion. There is some judgment. People like Breyer admit this. Others don't want to admit it. These tend to blame "the left" as "dangerous" while they want to use unworkable and/or arbitrary rules themselves that don't stand up to scrutiny. After all, artificial or not, they "restrain" judges.

Anyway, want a parable? Well, a few Jewish scholars were debating the Torah. God was listening and submitted an opinion. The scholars told him to shut up -- you gave us the law, we now get to interpret it, not you. God laughed -- "my creation best me." The framing generation doesn't decide the questions of the day. They gave us law that we must interpret, sometimes via judges, sometimes (as Jack Goldsmith noted in The Terror Presidency) by other branches, judges only stepping in much later, if at all. History helps, but the final decision is ours, especially since things change and history is often so divided.

Perhaps, some originalists think this is blasphemy? This is the ways of our "republic" all the same, including the value of independent judges who are not too "hogtied."

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* Any fan also knows umpires on the ball field are quite flexible when applying the rules as well. Consistent application of precedent also is important there -- it is often said "well, he was calling that all day." So, again, how appealing was that metaphor, really?

[Or, maybe, it has a hidden truth. Umpiring is clearly more an art than a science. Sometimes, people tell the truth without quite meaning to do so.]

Bad Judgment Finally Bites Back

And Also: I skimmed The Terror Presidency which shows even those (too) friendly to conservative viewpoints, like wariness of international human rights law, think the Bushies went too far and promoted specious legal reasoning. It also noted that Clinton (see Kagan/Dellinger) promoted executive power in various ways.

Good play is not the same as good judgment:

But when Ocmulgee County District Attorney Fred Bright announced that charges would not be brought, he did describe Roethlisberger’s behavior in troubling detail. “We are not condoning Mr. Roethlisberger’s actions that night,” Bright said at the news conference. “But we do not prosecute morals. [At least, less so than in the past.] We prosecute crimes.”

Well, the NFL does worry about it as shown by the six game suspension given to the two time Super Bowl winner.

Earth Day

And Also: Ike Davis is up at first now. Reyes just might be back. Pagan is doing well. Not so much a few others, including Maine. Pitching promising. Pelfry is doing great. Is there another injury? Mixed bag for the Mets.

The 22nd is Earth Day. One review of a criticism of modern environmental policies notes:

“The new green wave, typified by the phrase ‘lazy environmentalism,’ is geared toward the masses that aren't willing to sacrifice,” Ms. Rogers complains. “This brand of armchair activism actualizes itself most fully in the realm of consumer goods; through buying the right products we can usher our economic system into the environmental age.”

The review notes Rogers is weaker on the solution side, focusing on hard sells: more government spending and regulation. Instead:

It would have been better had Ms. Rogers delved more deeply into another of her suggestions: instead of buying green, we simply need to buy less stuff. She seems reluctant to push this too hard because it’s a truly radical idea that flies in the face of capitalism — green or not.

The basics sometimes is easy and hard at both the same time -- after all, losing weight often is about cutting down on certain foods and doing some exercise. A lot easier, I guess, to focus on some diet regime led by former sitcom stars or sports figures. A Slate article also pointed to some important areas:

The main point is that, when it comes to the environmental impacts of individual households, four areas dominate: transportation, diet, housing construction (i.e., the impacts of manufacturing, transporting, and assembling building materials), and energy-using products (which include appliances, lighting fixtures, and heating and cooling units). In industrialized countries, these categories collectively account for 70 percent to 80 percent of a household's environmental impacts.

Amazing how little public policy often focuses on such matters though some bloggers (including Atrios) are quite concerned with matters such as transportation systems. Trivial things dominate our airwaves, while things of this nature get much less play. Leave it to the experts, I guess, they might say. "They" being many of us. Michele Obama's home garden and debated talk about child obesity aside, the issue of diet is one area that deserves more attention. I have seen some stuff over at Yglesias, including school lunch and now broccoli.

You know, I like the stuff. I like it on garlic bread. I like broccoli casserole (it can be made with imitation cheese). It's a good topping on pizza, including with some seasoning, for those who eat it (again, there are vegan options). It's good in soups too. And so on. Sorry Bush I. Spinach salad is good too.

No Animal Cruelty Exception To 1A

The Supreme Court (8-1) held that a federal law against cruelty to animal videos was overbroad though a narrow one tied to crush videos alone might not be. Well written (including the dangers of relying on the mercy of the prosecutor) with some Roberts' light touches. [Update: I reject one putdown of the ruling here. More here.]

Happy Birthday Justice Stevens

Yet this rhetorical flatness is entirely in tune with the fundamental point of these decisions, which is that “the law” remains in effect and applicable even in times of crisis when national security is at stake. And “the law,” by and large, is boring and complicated. What these opinions stand for, both in rhetoric and in substance, is an insistence that the government abide by the law of the land. In particular, the government must respect the right of individuals to be heard in their own defense.

-- a former Stevens clerk

Stevens turns 90 today.

Adam

April is National Autism Awareness Month (who knew?). Adam is a good film (good DVD commentary!) about someone with a form (Asperger's Syndrome) dealing with various things, including romantic complications (who has her own life issues). Well acted all around.

Can't Have Your Cake and Eat It Too

Two fairly important oral arguments at the Supreme Court today, involving work place privacy (pagers) and equal access rules for university clubs. The latter is discussed below in answer to Dahlia Lithwick's column.

This is an unbelievably hard case, pitting a religious group's basic right to define and preserve its core beliefs against a publicly funded university's effort to ensure that school-sponsored and -funded groups do not discriminate on the basis of religion or sexual orientation.

This sounds a bit like being "mandated" to purchase health insurance meaning that if you do not -- and in the process negatively affect others -- you are required to pay a tax. [See here for the great burden they suffered.] The religious group is not refused a chance to "define and preserve its core beliefs" here -- they have every right to do that. The question is if they should be able to take student funds but not the students themselves. IOW, they want to have their cake and eat it too. The group is left with trying to avoid stipulated facts to try to show that they are completely barred, which is not the case.

But judging from the ideological zeal of today's battle, you'd think the case was open-and-shut. The liberals are for nondiscrimination. The conservatives are certain that liberals plan to infiltrate unpopular Christian groups for nefarious purposes. If there was any hugging, I missed it entirely.

Well, no. Kennedy and Breyer -- by the analysis itself -- appear to be unclear about what to do. By a new alchemy are we now told that Kennedy is a "liberal" or what? Note the law school is being defended by a former solicitor general of the Bush Administration. Curiosity too: Michael McConnell resigning the federal appellate bench after about seven years of service.

Notice is also made that it seems the some of the justices (remember Sotomayor and Ricci, the fire department racial discrimination case?) might be upset the appellate court disposed of the case too blithely. Darn Ninth Circuit! Well:

Before: KOZINSKI, Chief Judge, HUG and BEA, Circuit Judges.

The [**3] parties stipulate that Hastings imposes an open membership rule on all student groups--all groups must accept all comers as voting members even if those [*646] individuals disagree with the mission of the group. The conditions on recognition are therefore viewpoint neutral and reasonable. Truth v. Kent Sch. Dist., 542 F.3d 634, 649-50 (9th Cir. 2008).

Kozinski was a Kennedy clerk back in the day, so maybe his conservative bona fides should have an asterisk? OTOH, though there might be no "hugging," there was a "hug" here. Kent cited an equal access policy ruling involving a requirement that:

any organization which denies membership on the basis of race, color, creed, sex or political belief

could not be sponsored by the school, but that -- pursuant to federal law -- a religious club that did not violate that general rule should be allowed. IOW, a religious club there wanted to be treated like everyone else, not to be treated special.

It is debatable if general student funds should even go to certain religious groups. But, if it is, a true "equal access" policy works both ways -- take the money, you have strings.

Empathy in Sentencing

Some insist this is a "special exception" where judges can use "empathy." But, why? It is a matter of weighing various facts to determine what sentence is appropriate under law. Judging does this in other contexts too. Humans are involved there too. No sale.

Hey, K-Rod, Why Are You Pitching To Pujols?

Sometime after the Rockies (with six walks) did something the Mets never did -- get a no-hitter -- the Mets finally won in the 20th. An absurd result really given two position players pitched the last three innings. Mets managed one more than K-Rod gave up. 2-1.

Goodwin Liu Hearings

More can be found here -- note the panel discussion's moderator is Slate's own Dahlia Lithwick.

Liu has written a lot about legislative policy, which also is beyond the job of a judge in various ways. Thus, e.g., he thinks welfare rights or education policy are necessary for national citizenship and the Fourteenth Amendment has a role to play. A left leaning approach, but even he (apropos Obama) sees this as mainly a legislative effort. The judiciary would interpret statutes, which they would generally hold were constitutional. There would be some role around the edges mainly procedural due process. The core actors would be legislative all the same.

It should be remembered that a lower court judge (even a justice, really) has a limited discretion to put into practice their particular understanding of the law, being bound by precedents and the individual cases they decide. This is all underlined by the number of unanimous or nearly unanimous rulings, though there can be some flexibility in the writing or breadth. But, there is enough wiggle room and debate for the individual judge and his/her judicial philosophy to matter.

I'd add, though Liu was sure to take the conventional line that it is not the case, that personal opinion influences this somewhat. After all, even he cited "human" judging here. Finally, though there was some attempts at "gotchas" and targeting of his strong criticism of Alito (long analysis ignored to focus on some strong adjectives -- fine, take it, Liu has the chops to survive it) and Roberts, the Q&A seemed (I skimmed some of it) pretty substantive. Well, fwiw, better than the Sotomayor hearings.

One would hope this sort of thing will continue when the justice nomination is up.

National Day of Prayer Unconstitutional?

In passing during the Liu hearing (well, two parts, one day, so it's a "hearing" right?), a federal district judge's ruling holding the National Day of Prayer unconstitutional was cited. Liu begged off saying religious jurisprudence was not his forte. [More believable than him not really being familiar with Judge Reinhardt, the liberal lion of the Ninth Circuit -- hmm, vaguely heard of him ... not sure of any of his opinions ... kinda obscure, isn't he?]. So, it was let go, but hey, that's too easy for us, right?

Some good articles on the ruling though for some reason they don't seem to want to cite the case and provide a link as this blog shows is quite easily done. Talking about blogs, this hits home:

Kelly, unembarrassed about her role as an anchor/activist, pushed back to defend the National Day of Prayer. "[W]hy can't it be a day where we take a moment and we stop and we acknowledge the role that God has played in the formation of this country and its laws," Kelly asked incredulously. "What's so promotional about religion there?"

I have talked about this issue before, including last year when Obama tried a somewhat lower key approach to things. All the same, pursuant to a federal statute, he put out a "call upon Americans to pray in thanksgiving for our freedoms and blessings and to ask for God's continued guidance, grace, and protection for this land that we love." This is not a mere "acknowledgment of the role of religion in American life." As the excellent ruling here argues:

Unfortunately, § 119 cannot meet that test. It goes beyond mere “acknowledgment” of religion because its sole purpose is to encourage all citizens to engage in prayer, an inherently religious exercise that serves no secular function in this context. In this instance, the government has taken sides on a matter that must be left to individual conscience. “When the government associates one set of religious beliefs with the state and identifies nonadherents as outsiders, it encroaches upon the individual's decision about whether and how to worship.” McCreary County, 545 U.S. at 883 (O’Connor, J., concurring). Accordingly, I conclude that § 119 violates the establishment clause.

Apparently, introduction of the bill in 1952 by "Representative Percy Priest" is not enough, though I think "red flag," don't you? Seriously, as the ruling notes:

religious expression by the government that is inspirational and comforting to a believer may seem exclusionary or even threatening to someone who does not share those beliefs. This is not simply a matter of being "too sensitive" or wanting to suppress the religious expression of others.

As I noted before, realistically, absolutism in this area is not the state of the law, if it ever could be. But, accepting violations as a pragmatic thing is not the same thing as a federal judge finding a way to do so. Sometimes, it is, as shown by rulings upholding "under God" in the Pledge of Allegiance. Still, this is a problematic enterprise. What is the law?

The President shall issue each year a proclamation designating the first Thursday in May as a National Day of Prayer on which the people of the United States may turn to God in prayer and meditation at churches, in groups, and as individuals.

This is not a mere honoring of religious freedom or practice. It is a specific instruction to the President* (which is different from a congressional resolution or the President doing this on his own) to selectively honor those who "turn to God in prayer and mediation." The way this is done is even cited with "churches" (a nice neutral word that applies to mosques and synagogues, surely?) listed first. As noted by the ruling, this comes out in how the day is honored, including the religious favoritism and controversy that pops up. This sort of thing is divisive, probably violating even Justice Breyer's somewhat weaker test for violations in this area.

It is understood that minor violations of the First Amendment of this sort (to the degree they are violations, if we use that term to mean violations under current understandings of the law) are likely to continue. Other examples in other areas can be cited. But, it does not erase the problems, and it is appreciated that judges as well from time to time provide such eloquent and well written overall explanations of why. This applies to the Supreme Court as well:

It is worth noting that, just because Marsh sustained the validity of legislative prayer, it does not necessarily follow that practices like proclaiming a National Day of Prayer are constitutional. See post at 672-673. Legislative prayer does not urge citizens to engage in religious practices, and, on that basis, could well be distinguishable from an exhortation from government to the people that they engage in religious conduct. But, as this practice is not before us, we express no judgment about its constitutionality.

A ruling upholding passive Ten Commandments displays, especially those one of many monuments at some public park, really doesn't negate that.

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* The ruling notes that all Presidents did not have similar views as to proclamations that advanced religion, including the lesser known separation of church and state supporter, Andrew Jackson. This sort of thing, along with the debate over Sunday mail service, deserves more coverage. History can be our friend here. See also, Thanksgiving Proclamations.

Don't Remember This Joke

Airplane was on TCM last night. Missed this joke earlier:

Female announcer: Oh really, Vernon? Why pretend, we both know perfectly well what this is about. You want me to have an abortion.
Male announcer: It's really the only sensible thing to do, if its done safely. Therapeutically there's no danger involved.

Bet that is edited out of many broadcast showings!

Goodwin Liu Hearings

His confirmation hearing from yesterday can be found here. I first saw him promoting this and he came off quite well here. But, sorry, personal views do affect judging. He in effect said that when talking about "human" judging, but total honesty is verboten here.

Income Tax and other Constitution Stuff

[some edits made]

Justice Breyer at one point alluded to the new health care law as something that would result in many cases. The implication here seems to be that constitutional matters would arise. But, earlier he cited a complicated law that resulted in various statutory interpretation litigation. Some people over at Vololkh Conspiracy having wet dreams aside, I think he mainly meant that. Even if some sort of constitutional issue arose, this would not mean something like the so-called individual mandate.

Twenty years ago, Randy Barnett (talking about VC) edited a book entitled The Rights Retained By The People: The History and Meaning of the Ninth Amendment. It is basically a collection of law articles from the late 1920s on discussing the amendment along with Madison's speech introducing the Bill of Rights to the House of Representatives, proposals of the same from various states and Justice Goldberg's Griswold concurrence. Interesting overall, though the conservative takes simply are not convincing.

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census or enumeration.

There is some argument made that the Seventeenth Amendment (involving direct election of senators) greatly changed federalism somehow. How so? Why should indirect selection by legislatures voted by the people being changed to direct selection (when some moves were made already to balance the two) matter? Senators in the past were not under the wing of state legislatures. Proposed amendments (to go back to the last issue) aside, there was no power of removal. And, moves toward democracy was already in the air overall, including one with less of a local focus in some ways. Expansion of government never truly ended after the Civil War, especially as the 20th Century continued on.

Something related might be said about the income tax. Some argue the income tax amendment was an important matter in changing how the federal government had the means to pay for a modern welfare state. If you look at the background and opening cases related to it, however, this too is very unclear. First, even beforehand, the controversial (and bound to be overturned at some point) 5-4 ruling in the 1890s striking down a federal income tax law was applied narrowly. For instance, corporate income taxes were upheld as an excise. Ditto inheritance taxes. Many taxes on professions would be okay too.

The property related "direct tax" (so the five said) in that ruling was a relatively narrow matter by the time of the passage of the amendment. The idea was not that this class of taxes could not be applied. The concern was that it was a "direct tax" that had to be tied to state population. As noted in the discussion, an early case held:

[T]he Sixteenth Amendment conferred no new power of taxation but simply prohibited the previous complete and plenary power of income taxation possessed by Congress from the beginning from being taken out of the category of indirect taxation to which it inherently belonged.

In effect, the motivation behind the amendment was to (like the Eleventh, see Hans v. Louisiana) correct a sort of misstatement of law -- income taxes really aren't direct at all. A somewhat later case confused things somewhat on that but still did not claim that the scope of taxation was not expanded as such. Income taxes possibly might be "direct" but the amendment just allowed collection to be made easier by removing the apportionment requirement. Again, the ruling is a bit confused on the point, and as with other Lochner Era rulings, it is probably the case that income taxes would have been allowed the same as now soon enough even without the amendment.

So, the amendment did in some fashion ease the application of income taxes across the board, but as with a ban on federal poll taxes basically being moot given the Supreme Court struck down state poll taxes without such an amendment (yes, a ruling could be overturned, but that's rather unlikely; the amendment if anything supports a state poll tax by being of limited scope; in this respect, it was arguably counterproductive in a fashion), it is unclear just how important it truly was. Clearly, it has a symbolic value, those no big fans of income taxes clearly having an amendment that firmly legitimizes them. Some tax rebels, notwithstanding.

Anyway, happy tax day, and here is part of where your tax dollars are going.

Colbert strikes again

See, e.g., his recent interview with the Wikileaks person (challenging him on labeling something "murder" when only 10% will watch the whole video to decide) and the This Week temporary host actually having a group fact check the guests. Take that Charlie Rose!

Test Abortion Case?

And Also: Over the weekend, a late season surge collapsed when a do/die playoff chance for the NY Rangers ended via shootout. Rangers fans that hoped were screwed again. Former Mets fav, NF, won for the Phillies and then the Mets lost in extras. Again. Well, at least we aren't the Astros.

As noted on Rachel Maddow, a law was just passed targeting late abortions performed by the doctor that helped to handle murdered Dr. Tiller's clientele. Actually, we have a twofer

Yesterday, Nebraska’s Republican governor Dave Heineman signed a sweeping new law that criminalizes almost all abortions after 20 weeks’ gestation and another bill that forces women to undergo extensive mental health assessment prior to obtaining an abortion before 20 weeks.

The second law is ironic given the first:

grants exceptions only in cases of medical emergency, the pregnant woman’s imminent death, or a serious risk of “substantial and irreversible physical impairment of a major bodily function,” a provision experts interpreted as an effort to exclude an exception based on a woman’s mental health.

Thus, one law is concerned with mental health when it might burden the choice, the other ignores it when it might be the reason for the choice. The law also would not allow abortions in various cases when the fetus has some severe abnormalities. As to the pain issue, evidence twenty week fetuses feel pain is disputed. And, to the degree it would burden the women, the fetus couldn't trump even if it was clear.

The hope is that Justice Kennedy will vote the way he did in Gonzales v. Carhart. Though consistency is perhaps a bit too much to hope for, lower courts need not be convinced by that ruling. It upholds a barrier to one procedure, not a complete "a substantial obstacle to late-term, but previability, abortions." Fetal pain is not the test of "viability." As the NYT article notes:

The law it replaces, similar to those in many other states, banned abortions after a fetus reaches viability, or can survive outside the womb. This is determined case by case but is generally considered to come around 22 weeks at the earliest.

I'm unsure how much this matters since Webster suggests a state can play it safe, in effect, providing a safety net around the outer limits of viability which provides a couple weeks at least of wiggle room. Kennedy did say laws can recognize a "profound respect for the life within the woman," but not over the significant health risks of the mother. Past rulings included mental health here. This would still not cover one class of late term abortions -- severe fetal abnormalities. For instance:

Take Tim Mosher, who testified before the Nebraska Judiciary Committee this past February at the request of Trust Women PAC. Tim and his wife, Dawn, learned at 20 weeks that their baby was suffering from the most severe level of untreatable Spina Bifida. After consulting with medical experts and their families, they decided, in Tim's words, that, "We couldn't force our little girl to live in constant pain and suffering before dying a pre-mature death." But under LB 1103, if the woman's life isn't in danger -- one of the few health exceptions in the bill -- parents who find themselves in the same situation as Tim and Dawn in the future will be forced to carry these painful, ultimately fatal pregnancies to term.

Some states, even a few conservative ones, even allow state Medicaid funding to go for such cases. Cases like this are controversial -- the focus tends to be on the woman's health alone -- but these cases are of the narrow cases where even those with fairly strict views on this matter are willing to make an exception. And, laws like this underline the myriad of often complex regulations targeted toward abortion -- encouraged by Casey and Gonzalez v. Carhart* even more so -- that chip at abortion rights, often hurting those in very troubling cases. Finally, a nod to Stevens in one of the links above:

In the 2000 Nebraska “partial-birth-abortion” case, Stevens stated: It is “impossible for me to understand how a State has any legitimate interest in requiring a doctor to follow any procedure other than the one that he or she reasonably believes will best protect the woman in her exercise of this constitutional liberty.”

Well, not in the minds of some.

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* Pre-Casey, the Supreme Court followed a strict scrutiny policy that was more wary of limitations than under the "undue burden" rationale, and provided less flexibility to those laws focused upon the embryo or fetus over the woman.

Casey provides judges more wiggle room (see here) while later cases showed that the Supremes do not favor "facial challenges." This leaves open laws that can have many unconstitutional applications while making health providers wary about breaking them, protected conduct in danger of being violated.

"Murder City" and our immigration policy

And Also: Term of the day: "reluctant reader."

Whatever the chances for some sort of "immigration reform," one of the areas I have not kept up on, various issues need to be kept in mind to truly understand the issue. Democracy Now! had this report today:

A new report by the Mexican government has found the death toll from the so-called drug war is much higher than previously thought. Nearly 23,000 people have been killed in drug-related violence in Mexico since a US-backed military crackdown on cartels began more than three years ago. The report said 2009 was the deadliest year in the drug war, with over 9,600 people killed. The death toll is on track to be even higher in 2010 with more than 3,300 people in the first three months of this year alone. We speak to reporter Charles Bowden, author of Murder City: Ciudad Juárez and the Global Economy’s New Killing Fields.

Powerful stuff. Amazing how little attention this is getting even when workers at our consulate are killed in broad daylight.

One point made was that of the top three sources of income, one was illegal (drugs), one was on the way out (oil) and a third was money sent back (directly) from mostly illegal workers in the U.S. Workers largely there for two basic reasons: we need/want their labor (cf. slave labor -- the "need" is a matter of choice in both cases) and current policies -- including NAFTA -- drives people away from the country.

The author notes that one aspect of sound immigration policy is recognizing this fact. As with proper control of corporations and protections of basic things like health care in our own country, the will is not quite there. One more reason why true immigration reform is so hard, no matter what is done around the edges.

Not Kagan

And Also: Not that good of an episode, but curious bit about Audrey formerly dating the chief judge (justice) of the New York Court of Appeals. Well, not him. Some fictional one, who is younger and gayer.

Last time, I said Pamela Karlan would be my dream pick, and I'll stick with it. There are other good options out there [including a pal of Thomas']. Some have been suggested. This includes as a matter of "realistic shot of being nominated." See also, Dawn Johnsen.

Though given the importance of the seat and the party in power, in theory, Pamela Karlan (repeat advocate in front of the Court, has the brains to challenge Scalia, not too old/young) has various qualities that should meet the test. I know ... no need to tell me how things work, but fights include things that move the line. Note how the Republicans are pushing for Merrick Garland (whoever that is ... and his friends at the moment make me nervous ... the name sounds kewl) as the "best choice we can get," even though it's not likely they will get it. Makes them seem reasonable.

But, pushback should be made against Elena Kagan, deemed to be the current frontrunner. Last time, Judge Diane Wood (who has a nemesis around Slate parts) was said to be the frontrunner and Sotomayor got the seat. I thought Sotomayor was a fine choice at the time, especially given the likely options. But, Souter is not being replaced now. It isn't his first nomination. And, making Republicans happy isn't a great political choice before the '10 elections either. Hint: if Orin Hatch or Jeff Sessions doesn't like someone, it just might be said person is a good choice.

Anyways, Kagan is a question mark. Glenn Greenwald today (he is not alone) makes a good case to be wary of her. On executive power in particular. She will satisfy some on social issues, but even there, he notes that it is not totally clear how firm of a choice she is. Replacing Stevens really shouldn't be some stab in the dark. The executive power issue in particular is important. Some of the best rulings in the last few years have been by Republican nominated lower court judges who realize that our system of limited government includes restraint on the executive.

As someone once noted, let us not let appearances alone decide someone is okay. In some ways, Kagan looks like a good pick. But, seems more of a risky one that in some ways is a matter of settling. Is that what a replacement of Stevens should be?

[To put it out there, so to speak, it is interesting how many lesbians are listed as credible options. Pamela Karlan and Katherine Sullivan (involved in some big cases, at times with Tribe) are longshots while Elena Kagan is pushed as a frontrunner candidate. Though, let's be honest, if told, you wouldn't be shocked or anything, the fact Kagan is a lesbian is not really apparent from many reports.]

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* Democracy Now! notes:

On Capitol Hill, speculation is growing over who President Obama will nominate to replace the retiring Supreme Court Justice John Paul Stevens. Speculation has centered on three top contenders: Solicitor General Elena Kagan, U.S. Appeals Court Judge Merrick Garland and U.S. Appeals Court Judge Diane Wood. But the White House says about 10 candidates remain under serious consideration. Salon.com blogger Glenn Greenwald joins us to talk about some of the contenders, in particular Elena Kagan.

So, even if there are some "top three" list out there, it need not be deemed final. After all, the "White House says." I didn't know the building talked, but it seems trustworthy.

Eyes Like Stars

Eyes Like Stars: Theatre Illuminata, Act I (my copy didn't have the subtitle on the title page, thus the cliffhanger was a surprise) by Lisa Mantchev was a page turning coming of age story with the fantasy of theater characters coming to life. Audio preview sounds great.

Army Wives

Don't know why they didn't rerun the season finale (yes, it was online ... but I didn't watch it in time), but the new season opened well all the same. The fact we can understand both Pamela and her husband suggested the complexity. Ready for Diva too!

Paul Again Is Half Sane

Okay, so he says Obama isn't a "socialist." Cheers. But, "you don't have to participate if you don't want to" now. Also, the bill did not "put the power over health care in the hands of corporations." Already there. It tempered it a bit. Is the "R" for BS promotion?

Candles on Bay Street

Caught the last part of the t.v. version. As a whole, it is more complete (the book rushes through the adoption angle and lingers on the death too long) but the movie ends rather abruptly, largely because the euthanasia subplot was removed. Well acted.

Date Night

The reviews are right to suggest the film settles into cliches, but also that the cast shines (including that "intern" from Letterman) and it is funny. The finale had a bit too much Get Smart (same lead) in it, touch of sexist really. But, wait for the whole credits to roll!

Empathy in Judging

And Also: Slate recently had a piece on "vegans" eating oysters. Having perspective is a good thing, but by definition, that might be a problem. Why Animal Suffering Matters: Philosophy, Theology, and Practical Ethics by Andrew Linzey was very good -- great argument summaries too.

Dahlia Lithwick and a former Stevens clerk wrote how empathy was an important aspect of Stevens' tenure. Concerns about diversity (and talk in some quarters include getting a politician here) should take into consideration that a well off white guy "got it too." I would add that some things in his background did help here, including service in the military and some family problems with the authorities. "Diversity" means -- as Sandy Levinson notes in a collection of essays with that word in the title -- a diverse number of things.

In a recent opinion (his "Pledge Dissent"), Judge Reinhardt noted:

Empathy, a much misunderstood term, even in the world of the judiciary, means “the intellectual identification with or vicarious experiencing of the feelings, thoughts, or attitudes of another.” RANDOM HOUSE DICTIONARY OF ENGLISH LANGUAGE 468 (1979). It is a quality that is most desirable in, even if frequently absent from, today’s federal judges at all levels of the judicial system.

Many took it as a code word last time around. It really meant bias to a specific side. But, done right, here it means evenhanded empathy. The ability to stand in the shoes of all sides, seeing things through their eyes. When a teenager comes to court to defend her right to join a religious club at public school as much as when she seeks an abortion without total parental veto. Nor is there something special about appellate judging that changes matters. Appellate judges examine facts in a myriad of cases. The idea that empathy is only relevant at sentencing also is specious and lawyers, judges and members of academia repeatedly said as much.

And, then, taking everything into consideration, you determine what the law holds. But, if you don't take each side seriously (not asking questions or belittling litigants doesn't help), it's hard to do that. Part of this is empathy -- one factor among many in human judging. Respecting each side in this fashion doesn't mean you necessarily agree with them. It helps in treating them fairly though. In this respect, Harlan is a case in point. Justice Harlan was a slave-owner who wrote opinions honoring the rights of blacks. His grandson was a patrician conservative sort that was honored for being a "judge's judge," one who saw all sides of an issue.

Likewise, along with his charm and grace, such things helped him attract support from his colleagues and others. As Justice Ginsburg notes:

John Paul Stevens is the very best and most collegial of jurists. On the bench, his polite "May I . . . ," invites advocates to get to the nub of the case. Work from other chambers invariably takes precedence over all else on his agenda. I will miss his bright company, but his caring opinions, sometimes pathmarking, sometimes prophetic, remain to inspire generations of judges, lawyers, and law students.

A "caring" opinion includes one that respects both sides. Some replies to the Dahlia piece cynically felt she only liked his empathy because he tended to vote for people she supported or that his empathy is reality is selective. Putting aside that judges have a special obligation to the disadvantaged (Madison didn't say the Bill of Rights was in place to protect the powers that be), repeated cases of him voting against such people will not convince. I do think some projecting is going on here, but whatever -- me personally, I think empathy is important.

It is both useful and more interesting to see and respect both sides' arguments when reasoning things out. Sometimes, one side isn't worth too much respect, but the arguments in front of the Court tend not to be so clear-cut. I was even called (the horror) "conservative" at times for doing this. Oh well. One last thing. Stevens' is the great liberal on the Court. We need a replacement, especially now, that provides a somewhat similar passion and ability to get votes. Sotomayor was in some ways a "safe" choice, but does not seem so far to be too different from Souter in regards to vote placement.

Some simply safe replacement for Stevens would be a bad move. For instance, there are troubling signs that Elena Kagan will be weak in truly protecting against executive power. Some FDR appointments showed that at times pre-appointment positions can change, but the failure to defend the Dawn Johnsen nomination (which was fucking pathetic -- at least one Republican was on board, even before the Brown election) does also suggest Obama wouldn't mind that much anyways. The Democrats might lost a few Senate seats. Who knows what will be the situation the next time.

If not now, when? Why not pick a Pamela Karlan, Koh or someone else who is a truly liberal and forceful voice from the left? Someone who has spend years showing how smart and skillful they have been while also defending a view of the law that Stevens has upheld for decades? Maybe, Judge Diane Wood is good enough in this respect. But, why not someone who, yes, has a bit of an edge. Health care is passed. Why not focus on this as "the" fight of the Summer? Politically, I think it will help in the '10 elections too, if you want to be simply partisan about it.

I truly was satisfied with Sotomayor and in fact thought she was a fine pick in various ways. I don't think she was a matter of "settling" overall. Will that be the case later when the next nominee is brought out? I can empathize (and agree) with those who fear not. We shall see.

It Begins Again

In the short term probably shifting things rightward, Stevens announced his retirement. Since he thinks she is a "highly-respected constitutional scholar," maybe Obama will nominate Dawn Johnsen. Apparently, that is a bad thing for certain jobs, though. F-ing crap!

Figueroa Update

Guess who is a Philly now? Hint: see losing pitcher.

There Are Ways To Collect That $695

And Also:Virginia's governor and attorney general has done some asshole sort of things already, particularly in regards to homosexuals. The "slavery, oh yeah, that is important to the Civil War" deal is probably a new low.

Tim Noah, who has done some good work in effect blogging on the health bill/law, recently had a piece entitled: "Maybe the Individual Mandate Is Enforceable -- The IRS commissioner explains how he'll make you buy health insurance." A criminal action or a lien is removed, but the law references another section of the code that deals with the collection of taxes generally. I looked at it when Noah talked about this before.*

Though some people suggest it is impossible, actually, it is possible to actually read the legislation and think things through. Of course, lots of talk about process (that few care about any more) and "death panels" etc. dominated coverage so this sort of thing was not done as often as it could be. Instead, only after the legislation is passed did I see a summary of it in my local paper. Yes, there was some efforts beforehand, but this basic issue underlines it was not done enough. Same here: why not just call a tax attorney or CPA? Noah is getting paid for that sort of thing, isn't he?

Anyway, there are more than two ways to attack the problem. As noted in the article, I don't think (though don't think it won't be tried) "liens" means that if you were going to get a rebate after doing your 2018 taxes, and didn't pay that $695, the government would be required to provide it anyways. I'm willing to bet that the rebate arises from actually paying all your taxes. You know, you (or your accountant) determines all the taxes you owe and deduct it from those you paid, and you get the rebate. If you are getting back $200 but didn't declare that $695, you don't really rightly deserve that $200.

As the article notes, we are talking about a narrow group here anyways:

Since only people who earn income above the filing limit and for whom health insurance premiums are less than 8% of income are covered by the penalty, I would expect that most of the people who might get hit by the penalty will be independent contractors and self-employed individuals—farmers, ranchers, lawyers, accountants, movie script writers, consultants, etc. Most of these people have complicated taxes and probably will 1.) want health insurance, and 2.) prefer to keep their heads down with the IRS. If you are filing a hundred-page tax return, the last thing you want to do is to throw up a red flag in the face of the IRS.

Some will fall between the cracks, but that is the case for lots of people who don't pay all their taxes. People who don't have insurance will likely still follow the law -- people still tend to do that sort of thing. Some of the rest will have tax rebates, if some audit is done or whatever, that covers this sort of thing in whole or in part. The rest is a fraction of a fraction and doesn't make the measure pointless.

Finally, the no nos are criminal penalties and liens. Well, there are a lot of other things possible. A civil fine is not a "criminal penalty." Also, do you want a federal contract or to work for an institution that has some sort of federal funding, including let's say doing a building job of some sort so related? Oh wait. You have a pending tax bill that you never paid. No criminal penalty or lien required -- no job for you. Again, we are talking about a narrow group of people anyways.

More evidence of much ado about nothing much, except that this sort of thing should have been addressed better beforehand.

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* It you follow the link and page notation in Noah's article, you get this:

The penalty provided by this section shall be paid upon notice and demand by the Secretary, and except as provided in paragraph (2), shall be assessed and collected in the same manner as an assessable penalty under subchapter B of chapter 68.

It would be helpful if Noah or someone else paid to determine such a thing would explain what this means, but a quick Google search suggests this might be it.

Word Play

The word "mortgage" came up in an early episode of Once and Again, and the mom noted she didn't know the origins of the word. This explanation for the word ("dead pledge") helps explains things. Etymology is both interesting and helpful in understanding things.

TV Quickies

The season finale of Being Erica was good, including some of the music. Hope it is picked up for a third season. The Mets game lingered on ... a two inning comeback took forever. The loss was quicker: 10th inning, pitching costing them on both ends. Stress alert!

Hearts Afire

From the creators of Designing Women (and friends of the Clintons), this political satire/romantic comedy is likable if a bit forced. More '90s fare rediscovered online and/or DVD.

The Runaways

Good lead performances, especially (but not limited to) Dakota Fanning as the young singer whose book on which this portrayal of the beginning of Joan Jett's career is based. Story is a bit disjointed at times, but good look. Note the writer/director. Some beginning!

Opening Day Win ... Done

First inning runs, blown bases loaded situation and benefiting from Marlins poor defense all contributed along with Santana and some work from the newbies. The not so newbie Nieve worked fine though fan fav Figueroa (has that blue collar Mets vibe) might have fit in the roster over a green phenom and disposable (salary too) reliever.

I'll Support Her ... If Her Website Didn't Block Her Out Too!

A singer received a fine for disorderly conduct arising from stripping as part of a public video. Even she spoke of concern for children. It was made strolling down in the middle of the city, not some isolated area. And, even her website has a censored copy. Why not littering?

"Conservative"

And Also: I recently got a chance to borrow the first few episodes of Once and Again on DVD. It is a bit pretentious (and/or annoying) at times, but I do remember liking it. The first four episodes suggests why. And, well, Sela Ward.

An article (see also*) about Justice Stevens included this tidbit, which is something of boilerplate but still has some bite:

“What really for me marks a conservative judge is one who doesn’t decide more than he has to in order to do his own job,” he said, relaxed in shirt sleeves and his signature bow tie in chambers floodlit by April sunshine. “Our job is to decide cases and resolve controversies. It’s not to write broad rules that may answer society’s questions at large.”

In an early opinion, he noted:

For the proposition that regulation of the minimum price of a commodity -- even labor -- will increase the quantity consumed is not one that I can readily understand. That ... merely reflects my views on a policy issue which has been firmly resolved by the branches of government having power to decide such questions. ... My disagreement with the wisdom of this legislation may not, of course, affect my judgment with respect to its validity.

Reasonable "conservative" legal scholars realize it applies to the health legislation as well, even if they don't care for it or the current doctrine. Efforts to the contrary by some over at Volokh Conspiracy, notwithstanding. For instance, some of the justices who guided the New Deal jurisprudence they abhor were not always a big fan of the legislation involved. In one case, with apparent pleasure from him, an interviewer called Justice Brandeis a "conservative."

But, things have changed a bit since a Republican President who as a legislator tried to get his predecessor impeached, nominated him, perhaps.

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* The NYT article suggested some reasons why Stevens seemed tired when reading his dissent in a recent case. This article cites one of his former law clerks for some personal touches. Her blog suggests someone quite interesting in her own right. Overall, her writings as well as others suggest why Stevens will be missed when he does retire.

BTW, the book on justices just cited makes me wish for a Chief Justice appointment like Charles Evans Hughes. His successor (also covered by the volume) was fine on some levels, but deemed by many not as good of a Chief Justice. The skills of Warren are known, but he isn't quite on the level of Hughes. Those afterward were a mixed lot on some levels (Rehnquist was a good CJ in various ways), but all had a certain taint as ideological appointments, even if they had other talents.