Baseball Quickies

The Mets are running out of things to do other than end in truly pathetic fashion, .500 a lost cause, third place and 80 wins questionable now. San Diego is also fading, again thanks to the Cubs. And, Tampa Bay also making it hard for themselves. Pesky KC!

Welcome Back, Justice [ ]

Sen. Leahy's bill that would allow a retired justice to fill in when an active one recuses themselves sounds like a good idea. Even if 4-4 splits are pretty rare (though Kagan recusals increases the chances) and the current retired bunch will lead to some ideological opposition.

Baseball Quickies

The Yanks and Rays mostly keep on pace limping to the finish line, there is no miracle finish for the Rockies this year and more Mets "fun." A great come from behind win ended after 7.2 (and failure to tack on runs) and Dickey lost the nightcap giving up a run.

So you want to vote these guys in, huh?

The 268-160 vote on Wednesday came after passionate floor debate. Democratic supporters said they were standing up for sick 9/11 heroes. Republican critics branded the bill as yet another big-government entitlement program that would boost taxes and kill jobs.

Yeah, we can only use them to bash Muslims and fight wars.

Photo Policy

In article about a suicide allegedly influenced by an invasion of privacy, the NYT provided a photo of the person AND two college students allegedly involved in the invasion. I'm wary about showing photos of alleged people, particularly in sensitive/heinous situations.

As Long As That's Not All ...

Christine O'Donnell (shades of Bush) said that God helped convince her to not quit her Senate campaign. Even aside from her audience there, disdain should be tempered. Many have a sense of right and wrong as well as felt compulsion to do stuff that is similarly um intangible.

Baseball Quickies

The Yanks, Rays and Reds are in while the Braves (with help from the Cubs) have a safer position for WC. The Mets showed some life by coming from behind in the 9th. Another good finish when all is over? .500 means 4-2, 80 wins, 3-3. NL West open. Giants ahead.

How about Arena Football?

Who knew? I past this high school repeatedly, but didn't realize that its football field is only eighty yards long. I also went to the White Castle there. But, why was it built that way? The article, as is often the case, leaves out an important detail. Stupid move anyways.

New policy on tapes release

I have repeatedly said that providing audio of oral arguments would be a reasonable if not totally satisfying compromise for the televised it crowd. So, the new policy, even with the one week delay, is much appreciated. Slowly, they advance. Justice Kagan gets two circuits.

Melissa Rogers Sighting

I include a blog by Melissa Rogers on my side panel, but she no longer is active there. But, she provided some intros to this discussion of RLUIPA at the liberal answer to the Federalist Society. Interesting subject with some strange bedfellows; see, e.g., Marci Hamilton.

That's something, right?

The Mets fan, .500 tricky, has to grasp for things to be happy about.  They lately can't even manage to safely stay on base.  Splitting the season series and having the Phillies have to wait (if only hours) after the game yesterday to clinch a spot is one such thing.

Let's Play Some Ball!

The N.Y. Mets won a series in Philadelphia, preventing them from celebrating winning the division at home. The Jets had a good game, the Giants another lousy one and the Yanks managed a win. The Braves lost again and there were some more good ball games.

Beyond Marriage

And Also: The story is a bit slight, but the lead performance and visuals make Cairo Time well worth watching. I might say the same (well for parts of it) about a couple performances in this film too. Love that faux British accent. And Ms. Lynne is usually worthwhile. 

A family is a group of individuals who love, hate, trust, question, need, console, and depend on one another as they grow and mature and learn how to give a little more, take a little less... all in the same environment, whatever or wherever it may be.

-- Lynn Johnston of  "For Better of For Worse" fame

We are in a midst of a time where there are various court cases centered on equality for homosexuals, including in the area of marriage. One thing that repeatedly arises during online debates is some group who suggests the way to go is just do away with marriage as we know it. They often sound like some high school or college student thinking they are so smart and/or avant-garde about the whole thing. This tends to annoy me since it is not realistic and the matter at hand is that one certain group is burdened. Is this how people reacted when Loving v. Virginia arose in the race context? Also, two person marriage to me still retains a certain cachet that warrants special treatment.

But, the author of Beyond (Straight and Gay) Marriage basically agrees with them. Many countries have policies that provide rich benefits to those who are not married as noted by When Gay People Get Married by M.V. Lee Badgett in particular in regard to the Netherlands. She notes that cohabitation provides 75% of the benefits of marriage, many strengthening things by explicit agreement that re-enforces what is provided by law. And, this follows the holdings and logic of many Supreme Court rulings, starting with those (e.g., Levy v. Louisiana) that provided equal protection to illegitimate children.

Lawrence v. Texas strengthened a theme that "family" need not be considered merely a married couple with 2.5 kids. In the 1970s, the importance of extended and mixed families was addressed concerned a residency requirement that burdened a grandmother raising kids. We must not "close our eyes to the basic reasons why certain rights associated with the family." As noted by Justice Marshall in another case, right to "establish a home" has a broad reach. Lawrence underlines cohabitation is no longer something that can be targeted, thus marriage is not as necessary as in the past where a religious ceremony alone would not be enough in that regard.  Cf. opinions here.

The book cites a broad interpretation of a N.Y. law regarding "family" for purposes of what a household is for residency purposes. Another Supreme Court discussion seems appropriate here as well:

Family relationships, by their nature, involve deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs, but also distinctively personal aspects of one's life. Among other things, therefore, they are distinguished by such attributes as relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, and seclusion from others in critical aspects of the relationship. As a general matter, only relationships with these sorts of qualities are likely to reflect the considerations that have led to an understanding of freedom of association as an intrinsic element of personal liberty.

And, the breadth of the problem goes beyond marriage rights:

The time has come to reframe the narrow terms of the marriage debate in the United States. Conservatives are seeking to enshrine discrimination in the U.S. Constitution through the Federal Marriage Amendment. But their opposition to same-sex marriage is only one part of a broader pro-marriage, “family values” agenda that includes abstinence-only sex education, stringent divorce laws, coercive marriage promotion policies directed toward women on welfare, and attacks on reproductive freedom. Moreover, a thirty-year political assault on the social safety net has left households with more burdens and constraints and fewer resources.

It is very appropriate to recognize how changing views on "family" and how "marriage" is not deemed to be all, end all here, is important in a myriad of contexts involving health care, child welfare, housing, social relationships and more. As in other countries and a few places in this one, there is a strong logic to having various types of "domestic partnerships" or "civil unions" that address various relationships, including siblings, households, parental units and so forth. Marriage would not be all that would be involved here and trying to fit everything in that box would be discriminatory and basically illogical.

These set-ups would provide a means to establish some collection of rights without the need of complex and often costly arrangements. For instance, right of occupancy in rent controlled apartments or control over them for the adults living there. If there is some flare-up with a fellow occupant, especially when finding a new location would be problematic for any number of reasons (such as age or disability), some degree of protection should be provided even if the person doesn't pay half the rent or whatnot. Any number of other scenarios can be imagined, such as two sisters owning a farm and if one dies, British estate taxes will require the other to sell. A right to life tenancy should not only exist in that context for married couples.

I am still not totally sold that "marriage" should not provide some sort of special legal benefits. "Civil unions" suggest a set-up where various types of families can be formulated, not just a two member bilateral one, which is one reason why it is not a fully adequate alternative as long as state sanctioned marriage is still present. But, in both cases, there are sound reasons why the couple has special rights. What is involved in most cases are two people from separate worlds, so to speak, coming together, and in more cases than not, there is some connection there beyond merely financial or even friend based.

Putting the latter aside, and honestly it is a little hard for me to do so, giving stronger protections to them than siblings (who are already united in a core way) is logical, isn't it?  Also, often the value of marriage is that two people share benefits and responsibilities, such as health proxies, for which multiple parties are less appropriate or cleanly divided.  Sometimes, this works for other two party units (or multiple groupings are easily possible, such as to share a home) but consider siblings or a parent and children.  If two parties are best, what sibling is the second when there are more than one option?   Another reason why "let's just do away with marriage" is complicated in specific situations.  A marriage has all the components over other groups for a reason, one that is far from unreasonable, and in some ways is rather appropriate. 

This is not an "either/or" situation though the concern is that favoring marriage will result in just that. But, in many cases, it is not even today. The issue of "second parent" adoption underlines this -- a key reason why an intermediate court recently decided that Florida's ban on same sex adoption was irrational is that being married is not a requirement for adoption. This is as it should be, even if marriage (civil unions) are still available. And, providing open-ended benefits in a myriad number of contexts is a good fight to make, since there are any number of situations where there is a broad acceptance to the idea. One need not be homosexual, after all, to imagine cases where rights beyond marriage could be essential for one's well being.

It does underline how ironic it is that some social conservatives find same sex marriage so troubling. As some of their brethren warn them, watch what you wish for. If you require same sex couples to take an alternative route, others will find it quite attractive as well, particularly since so many find that now.

Missed Maddow Opportunity

Even if he didn't/couldn't talk about it, why not even mention that Jonathan Turley has been in the midst of an impeachment trial, one from what I have seen is full of local characters that would be prime material for either her or TPM, which is getting too gossipy at times.

And Also

Major Witt [on Maddow tonight], the lesbian air force nurse, was ordered to be re-instated by the trial judge. Interesting article on Valerie Plame. And, "wait to the year after next?" A plan for the Mets in 2011: get rid of old wood and don't do something stupid.

Colbert Comes To Washington

[On Saturday, the NY Daily News -- Colbert's show is taped in Manhattan -- covered his appearance, only talking about his opening statement and joking comments.  The Lieberman-esque op-ed department just saw it the FOX way -- as a waste of time and in bad taste.  No comment on the other serious witnesses, how other celebrities testified in the past (including Elmo) or his serious from the heart comment cited below. 

OTOH, I talked with someone who never even heard of the guy.  Much blog verbiage is spent on just that sort of inside baseball.]

Stephen Colbert, yes him, was a witness today in a House "Hearing on Immigration and Farm Labor" though Rep. Chu noted that given some past testimony (from Loretta Switt or Elmo), it isn't totally unprecedented. Colbert had an amusing intro (a bit different from his more straight prepared remarks), but he was serious in an answer to Chu:

"I like talking about people who don't have any power. This seems like, one of the least powerful people in the United States are migrant workers who come and do our work, but don't have any rights as a result. And yet we still invite them to come here, and at the same time we ask them to leave. That seems like an interesting contradiction to me." He said immigrant workers were seen, particularly during a recession, as "the least of our brothers." While he "didn't want to take any of their hardship away from [other groups with problems]," Colbert concluded, breaking character, that "migrant workers suffer, and have no rights."

The chairwoman invited him on because he -- and this isn't the first time -- when his satire made an important issue known to the general public:

Colbert was testifying on behalf of the United Farm Workers Union, which is pushing an agriculture jobs bill to give illegal immigrant farm workers a path to citizenship. The UFW started a program called "Take Our Jobs," with the goal of drawing attention to the large immigrant population that comprises America's farming work force. Primarily, the UFW argues, this is because Americans don't want those types of jobs, and the program is a tongue-in-cheek way of drawing attention to this. Colbert is one of 16 people to take up the UFW's offer for Americans to literally "take the jobs" of immigrants.

I think this is a reasonable idea, though realize some might think it's inappropriate (see Colbert's show last night for someone who did), particularly him testifying in character for most of the time. But, it is not like he was the only one there, and he did in fact spend time with migrant farm workers. And, the quote above suggests (as does various other accounts of his private life, including being a Sunday School teacher) Colbert has a serious side that supports public service.

In reasonable doses, this sort of thing is a way to promote important issues, as does his interviews weekly that provide diverse material to the public.  [Update: Keith Olbermann had a good segment on this matter that agrees with me.]

Silly Moment of the Day

Again, naturally big-breasted women are persecuted. If Katy was a surfboard, no one would've said anything.

-- Reply to Katy Perry Being Held Too Risque For Sesame Street

Women, especially of a certain body type, show as much or more inside and out in front of children. Sort of a perverted mind-set really.

Affordable Care Act Starts to Kick In

Mary Thompson with her daughter Emily, 11, who had not been covered by her parents' insurance because of pre-existing conditions.

The NYT notes (with some articles): "On Thursday, the six-month anniversary of the signing of the Patient Protection and Affordable Care Act, a number of its most central consumer protections take effect, just in time for the midterm elections." C-SPAN had coverage of an event involving President Obama making mention of this fact (calling it the "Affordable Care Act," though some find it so hard to think of a name other than "Obamacare"*).

It's amazing really. Don't the Democrats have nothing to run on, other than fear of Republicans? Glenn Greenwald? He annoyed me recently via a neat trick: both finding a way to criticize Obama in the midst of comments promoting Democratic accomplishments (he ended with a dig at critics who are upset the Dems don't do enough, which GG targeted) and scorning their fear mongering of Republicans. As I noted in comments, Sen. Kirstin Gillibrand sent out her first campaign commercial, which focuses on her attempts at transparency. I doubt she is alone here. The fact Democrats aren't doing enough is not reason to stereotype like this.

One article notes that insurance companies have a long road to travel in handling the new law. The fact that some fear the extended benefits will not be profitable is a telling point. The fact that certain things, such as medical care for children, is not profitable in dollars and cents is not necessarily reason to deny it. Many leading Western countries realize this fact in their health care policies. One day, maybe we will in a more complete way. As of now, the law seriously expanded protections for those in need. Republicans want to repeal this:

Under the new law, insurers that offer child-only policies must start covering all children, even the seriously ill, beginning on Thursday. Insurers must also begin offering free preventive services, and for the first time, their premiums must start passing muster with federal and state regulators by the end of the year.

Obama also referenced the ability of parents to keep their children on their plans into their twenties, a reflection of modern realities regarding post-graduate children often not leaving home. Obama and hopefully other Democrats (except for a few blue dogs -- who were shown on a striking special report on Keith last night on the true nature of "small business" to be hypocrites on tax policy, claiming to be fiscal hawks but supporting tax breaks for the rich which will add to the deficit -- who campaigning on their opposition) are reminding people about these things. Republicans didn't seriously work with Democrats to protect the good and challenge the bad. They just said "no."

[Update: Republicans -- as Rachel Maddow noted earlier tonight -- actually put various aspects of the health plan in their platform. So, apparently, they don't just want to repeal the whole thing.]

Both for that and the (flawed) good offered by the Democrats, the choice in November is obvious. Like Bill Maher told Larry King, sure Obama has his problems, but he was given a mess, and the fact it wasn't clean after two years shouldn't mean we should give power to the group with a bigger part in making it. Some find this "negative" reasoning unsatisfying. I find that a bit curious, as if not getting hurt is a bad reason to cite for avoiding touching hot stoves. But, fine. The Democrats also did good things. If you want to pressure them to do more, go right ahead.

Good luck if you vote in their opposition. BTW, I love how people who think Democrats threaten their "liberty" want to vote for people who will only do so more. Of course, often that is but a line they used. It is certain policy issues that really concern them.

---

* Some over at Volokh Conspiracy like to use "Obamacare," though some have called them on it. The basic complaint is that it is a cheap political laden label that isn't even that accurate. It is more a baby of the U.S. Senate.

"Reaganomics" is a rough expression of an economic scheme truly associated with the Reagan Administration. This legislation is not similarly basic to the Obama Administration, nor did it have primary control over its basic terms, though yes, as with other legislation, it had some influence.

Summer Over, Mets Long Gone

The NYM was eliminated yesterday. After finding a team worse than them (Pirates), they were back to being pathetic. Above .500 but a few days ago, a .500 finish was possible. But, they haven't won since. Oh, Lucas Duda is hitting now. 1 of 33, he might even get to .200.

"A Judge's View"

Justice Breyer in Active Liberty summarized his "pragmatic" approach to judging, one that furthered the role of "establishing justice" (Preamble of the Constitution) via a "democracy promoting" approach. This involved interpreting statutes (he is more liable to focus on underlining principle, not bare text, including the legislative history Scalia scorns) and constitutional provisions. The latter he approaches by being concerned by underlining principles, seen through the test of time. Here's a more extensive review. But, here's a quote that gives you a taste of his approach:

[Judges] read the text’s language along with related language in other parts of the document. They take account of its history, including history that shows what the language likely meant to those who wrote it. They look to tradition indicating how the relevant language was, and is, used in the law. They examine precedents interpreting the phrase, holding or suggesting what the phrase means and how it has been applied. They try to understand the phrase’s purposes or (in respect to many constitutional phrases) the values that it embodies, and they consider the likely consequences of the interpretive alternatives, valued in terms of the phrase’s purposes.

Making Our Democracy Work: A Judge's View is more focused on one group's part in all of this, the courts, hoping to explain a way to do it well and in a way deemed legitimate by the people overall. He comes off to this reader as an ideal teacher and judge, polite and fair, humble and wise, someone you can trust with the great responsibility given to federal judges.* As pretty good review (I use qualifiers like that or "apparently" in a way he sometimes does -- I hedge because it is not a white/black thing, it is a judgment call, that often is a matter of "as a whole") notes:

It's thus a bit surprising — and refreshing — to have a sitting member of the court produce a book examining its work. And yet, Justice Stephen Breyer has written not one but two illuminating treatises that thoughtfully place the court in the larger context of American democracy. His latest, "Making Our Democracy Work: A Judge's View," extends his public ruminations with what are becoming his hallmarks: wisdom, modesty, incisiveness and a touch of naiveté.

Breyer begins by discussing the concept of judicial review and a few key moments (Marbury, the Cherokees, Dred Scott, Little Rock, 2000) in its history, showing himself as an "engaging storyteller, presenting those episodes with a light pen, illuminating the constitutional issues deftly." The Cherokees and Little Rock cases are told particularly well, including a few tidbits (such as the moderate nature of the school board) that many probably don't know. Some details are left out -- I continue to think it artificial to discuss Marbury without showing how judicial review was practiced beforehand -- but overall these are helpful snapshots.

He then explains how a judge can write "decisions that work" (counseling readers to first read a very good summary he provides about how the federal courts operate) in areas like interpreting statutes or administration rulings. This is a bit more technical but his focus on "purposes and consequences" (or "values" and "proportionality" when dealing with individual liberties) is on the whole readable for the average reader, for whom this book is geared. Again, Justice Breyer is humble here. He gives great responsibility to judges, but doesn't promise perfection. Sometimes, I think he is wrong (often using his own criteria; for instance, at worse, his dissent, not the "giving nothing" dissent of Stevens in Heller, which he joined, is the more pragmatic approach). Purpose also seems a bit too open-ended at times.

But, overall, his approach is at worse quite useful. For instance, the last two chapters contrasts the total discretion of Korematsu with the more balanced approach of the detainee cases. For some reason, he leaves out the more troubling Padilla case. Still, the comparison suggests how judicial review can promote democratic ends, democracy as understood by our system, having an independent role that still respects its limitations and the other institutions involved. This humble but assured within its proper zone approach is a good model to follow and probably has implications for other branches as well.

He finishes with "hope" that the book will help people to understand our constitutional system better and lead them to ponder it some. "That is why I have written this book." It's appreciated.

---

* When I referenced this book earlier, a link is provided to a blog post talking about the book in which I had various comments. Some regarded my belief, to me somewhat strangely questioned by Prof. Orin Kerr as if what I was saying was news to him, that Justice Scalia too often promotes a stereotypical view of his beliefs. A view that I later noted had an unpleasant edge that even led more than one of his colleagues to publicly note their disappointment. See also, here.

This doesn't mean Breyer is perfect or sometimes doesn't do something that annoys. Or, that Scalia is simply a tool. As I said, honestly, I respect Scalia for putting his (quite intelligent) views out there and challenging (with enjoyment) the views of others. This works better than Kennedy not deigning to respond to some comments made by the dissent. But, as the last link suggests, there isn't just a certain unpleasant edge to Scalia's comments. They have a certain faux nature, often a result of what comes off as intellectual laziness mixed with snotty assurance.

Breyer is pretty sure of his views, you have to be to be a Breyer justice ("activist" in the sense of actively doing the job of a judge), but he mixes in some humility. The fact he is making a value choice, one not somehow compelled by history or text, can be readily admitted, since as a human judge that is the only alternative. Scalia needs to use legal fiction but can't bring himself to admit it, since it would "ruin it" by letting the subjective cat out the bag.

Teresa Lewis: Dead Woman Walking

[Update: A comment here suggests a reason for Ginsburg/Sotomayor voting for a stay; the primary post is a bit stereotypical. U2: She was executed Thursday evening.]

Democracy Now! this morning had another feature on Mumia Abu Jamal, the cause célèbre of the abolitionist movement. I'm somewhat tired of the whole thing, since there are thousands of people on death row, only a small number receive much attention. But, this one, gets lots of it, partially because of the eloquence of the defendant. Also, even those who are no fans of the movement admit the case had various due process problems. If possible, a commutation to life would seem to have saved a lot of time and bad publicity. On the other hand, murky or not, he was convicted of a cop killing.

But, again, there are many other stories such as the Troy Davis case (which led to a truly novel order by the Supreme Court to re-examine), which are less well known, partially since a few cases like this dominate the coverage. The notable case of the moment is Teresa Lewis, even getting mixed in with an Iranian controversy, someone allegedly (though the President there denies it -- if you can't trust him, who can you trust?) sentenced to be stoned for adultery, but also somehow mixed in with a murder of her husband. Since in both cases, the men involved were not sentenced to death, that too is tossed in the mix. To personalize her:

The fact she is a woman makes her case more sympathetic for some, but then again she was involved (and, though this is in dispute, held to be the "head of this serpent" by the sentencing judge, that is, it was her plan) in the cold-blooded murder of her husband and stepson (a reservist about to be sent overseas) for insurance money. If that last bit isn't bad enough, she also was accused of encouraging her teenage daughter to have sex with the two co-conspirators. Lewis was thirty-three at the time, the two guys who did the actual murder (and received life sentences, though one killed himself in prison) twenty and twenty-one. This is the sort of case where the death penalty seems appropriate to many people. Treating her different because she is a (white) woman (or found God, who just loves prisons, apparently) is at least somewhat arbitrary.

[After she was executed, her lawyer said: "Tonight the machinery of death in Virginia extinguished the beautiful, childlike and loving human spirit of Teresa Lewis. For her family and friends, for her fellow inmates at Fluvanna, for her thousands of supporters in Virginia, the United States and around the world, her death is a tragic loss."  I realize his position and all but that was a bit much.]

But, there are complications, as there usually are. She did lead the police to the gunmen, after originally declaring her innocence. There is some debate over who was the true "head of the serpent" here, though the evidence of her somewhat reduced involvement only came out later, as part of the clemency petition. There is some argument that she is borderline retarded. As the Supreme Court noted the year before she helped kill her husband and stepson:

Those mentally retarded persons who meet the law’s requirements for criminal responsibility should be tried and punished when they commit crimes. Because of their disabilities in areas of reasoning, judgment, and control of their impulses, however, they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct. Moreover, their impairments can jeopardize the reliability and fairness of capital proceedings against mentally retarded defendants.

But, the ruling gave the states discretion over determining the proper standards here, a matter that has led to continual litigation, down to another case the resulted in the person being executed recently. Here too Justice Sotomayor would grant a stay (joined this time with Ginsburg; five votes are needed in this situation), starting to be a somewhat consistent vote in that area. The evidence is too mixed to give her a serious shot on this ground, even if someone thinks she should get the benefit of the doubt. It is this issue and the actual trigger men getting life that are the main concerns.

Teresa Lewis is a typical example of the problems with the death penalty. A few cases aside, and yes they might be enough, actual innocence is rarely a likely thing. The problem is more that it is "so wantonly and so freakishly imposed." Taking alone, many will not cry for Teresa Lewis, who helped kill her husband and soon to be serving overseas stepson for insurance money. Hard to feel much sympathy for that. But, the people who actually killed them were not sentenced to die. And, her mental state is open to question. I think there is reasonable doubt that the death penalty is being fairly applied.

Given that execution is inherently cruel in various respects, if there is even some doubt, especially given I doubt someone like this is going to kill in prison or have the wherewithal to escape (events showed her compatriots were more likely to do that in some fashion), she shouldn't be executed. And, if someone like this is "spared," yes, it would be hard to imagine who will not. Your Mumia Abu Jamal or Troy Davis might have some other issues. There always tends to be some. The lack of assurance makes the finality of death that much more problematic.

For these people and other cases deemed less newsworthy.

Lockstep Block of DADT

It is "political" to support equality and promote citizenship for those who serve in the military. Politically, one side supports bigotry, even in the face of military and majority opinion. The hope is eventually (lame duck time) a few will not be total tools about it. Whatever.

[Rachel Maddow did her job and called "b.s." on the "political" part.]

Burris plea denied

Here is a discussion of Sen. Burris' failure thus far to obtain relief in an effort to be on the ballot for a special election to complete the final months of his special term. It is a bit strange (and upsetting) that he (and potential voters) can be so denied.

TV Quickies

Rules of Engagement didn't start on a great foot and though Mike & Molly has its heart in the right place, honestly, neither did it.

Einfühlen

[I received a few hits from my comments here, a blog post citing coverage of Breyer's new book. Time to read the book and stop worrying about blog comments regarding it.]

The book Novel History: Historians and Novelists Confront America's Past (and Each Other) has a chapter discussing Gore Vidal's book on Burr (I have not read it) with commentary from Joanne Freeman [see side panel] and a response from Gore Vidal himself. He discusses something that I'm familiar with though not by that name:

The word is Einfühlen. A neologism invented by the German philosopher Johann Gottfried von Herder (1744-1803). The word is often translated as "empathy," but Herder's use of it has far more reverberations than simply being able to put yourself in someone else's shoes. For one thing, the shoes in question are often in the past and the past is a different country with different air and full of people not like us but like themselves, and though we share, perhaps, the same DNA, the worlds back of them and before them are simply not our quotidian world and so it takes a certain kind of imagination and modesty to walk about in those shoes in a physical and moral landscape so entirely different from ours.

Or, "an ability to get into the past, while realizing that it's not just another aspect of the present, with people you know dressed up in funny clothes." The charm of Joanne Freeman's book is in part her ability (or good attempt) at showing us how the world of the 1790s was so much different than our own. To obtain a good sense of the different world of another era is important to obtain a true understanding, one that too often is not done. Another era too often feels too like our own.

Justice Scalia et. al. think they are able to do this. Original meaning of the Constitution, for instance, would tell us that sex discrimination isn't a concern of the Fourteenth Amendment. Does not the Nineteenth Amendment change things some? Now flag burning, surely that is covered. He is willing to follow precedent; well, selectively. He was for cameras in the courts, but now figures people will only get misleading tidbits from them. Unlike newspaper coverage? And, Griswold is a "total absurdity" -- family privacy would surely not be a fundamental liberty to anyone in the founders' generation!

The job of a judge is to interpret the law. It is best that they focus on being lawyers and judges as compared to being historians, which might be above their pay grade. I am about to read Justice Breyer's new book, but he has discussed similar themes before. Active Liberty is a smaller volume that is based on a series of lectures putting forth his "democratic" (small 'd') view of judging. I think it is a bit too limiting (forcing the Constitution into one basic box does that -- see also, Democracy and Distrust), but like that other volume, you can appreciate the journey even if you disagree with some of the conclusions at the destination.

[I started to read the book and the appendixes alone underlines the point. He includes a pictorial history of various moments of court history and then a quite good and succinct summary of what the Supreme Court does. This is all done in a down to earth way, which is impressive if you ever heard one of his law professor-like questions during oral argument. Again, some of his conclusions are questionable, but you can say that about most judges. The way he puts forth his case underlines the charms of his style. As an aside, both he and Scalia have a child who is a member of the clergy! Now, how often did that occur? ]

The discussion seems more honest about what is going on, even if you disagree with various points made.* This includes that judging, for good or ill, is not just about looking at the text or original history. It isn't how it's done, even if you want it to be like that. As Breyer summarizes:

They read the text’s language along with related language in other parts of the document. They take account of its history, including history that shows what the language likely meant to those who wrote it. They look to tradition indicating how the relevant language was, and is, used in the law. They examine precedents interpreting the phrase, holding or suggesting what the phrase means and how it has been applied. They try to understand the phrase’s purposes or (in respect to many constitutional phrases) the values that it embodies, and they consider the likely consequences of the interpretive alternatives, valued in terms of the phrase’s purposes.

Some also break things down into six basic categories, all of which go into the making of our constitutional law and understandings. It isn't just "well, people in 1870 wouldn't have considered gay people as protected by the Fourteenth Amendment." Finding out roughly what they thought, and what went into their thinking (e.g., various racist and sexist considerations that even many originalists are loathe to accept as binding, which would justify segregation and anti-miscegenation laws) is hard and greatly debated. Originalist writings often get it wrong or provide half-ass analysis. Add that interpreting the law means more than that, Scalia's approach (or the approach he claims to follow) leaves something to be desired.

Einfühlen is helpful either way, since history is part of it and it is useful to be able to respond to critics on their own level. It also is important to understand the past in general, putting aside the application to judicial debates of this kind. Let's not even get into the whole "empathy" thing! Talking about interesting foreign words, how about this ancient Greek practice, a possible precedent to judicial review?

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* I also thought a few comments found in Drop Dead Diva realistic as well. A lawyer notes the "law never stands still ... it's a reflection of society," it is a type of "smart mirror." Times change, even if certain basic things (thus the Constitution does serve as something of a limit) stay the same: "law is the wisdom of the ages wrapped in the opinion of the moment." This is all very human, imperfect, but realistic. And, honest.

It is also somewhat ironic that Justice Breyer's path is more "democratic" in various respects, including in that the people as a whole support it (if disagree on particulars), while the other side is liable to call his side less democratic. History, they say, restrains them, not their will alone. "History made me do it." Or, "text made me do it." As if others don't claim the same.

Border Issues

[The below is what I care about, not things like this, which is not even really worth mentioning on a fiscal level, even if it was totally useless. Which as the first comment notes it probably was not. But, seriously, it is not what matters.]

There is an interesting article in today's NYT on some controversy in an Utah newspaper over immigration issues, which also discusses the complexities of the Church of Latter Day Saints' attempts to appeal to Hispanics:

“We, of all people, should be sensitive to the desire of others to provide more opportunities for themselves and their families,” Mr. Willes wrote, making a direct appeal to Mormons’ sense of their history. Like Mormons, who fled the Midwest in the mid-19th century after failing to assimilate into society, undocumented immigrants know what it is like to be outcasts, Mr. Willes said.

A post is forthcoming that in part touches upon Justice Breyer's new book, which includes a focus on the principle behind constitutional provisions. Another good "sidebar" piece by Adam Liptak suggests how principle sometimes is lost when applying the law. Justice Holmes' dry focus on only "law" aside, the Preamble's counsel to "establish justice" includes doing better for the mother and child than has occurred here. One hopes that the "fall between the cracks" nature of what happened to these two American citizens is not typical, but the mentality shown leads to some doubt. To cite the caption:

Monica Castro has asked the Supreme Court to hear an appeal in her suit against the government for deporting her daughter, an American citizen, with the girl’s undocumented immigrant father.

The article has to be read to be believed (well, not really, sadly enough). The mother of a baby is given "until [the] afternoon to get a court order if she wanted to keep her daughter," that is, not to have her deported with her undocumented non-citizen father. She was able to get her back three years later. Castro is left to seek out monetary damages to get a modicum of relief and put into practice remedies in place in part to influence future Border Patrol decisions of this sort:

Holding Mr. Gallardo and the girl overnight, long enough for an American court to sort things out, would have involved “a tremendous amount of money,” Gregory L. Kurupas, the agent in charge of the Lubbock and Amarillo stations at the time, testified in a 2006 deposition.

Asked to quantify the daunting sum, Agent Kurupas replied, “Well over $200 plus.”

Thus far, she has to deal with judges who let her know that it all is unfortunate and all, but we don't want to restrict their discretion or anything. A look at a recent en banc ruling linked by the article, shows that even one of the dissenting judges joins in (partially) with the "missing the forest for the trees" judgment. The fact that the panel is split underlines that the question is not clear-cut either way. This sort of sophistry is not compelled:

Again, Gallardo had his daughter, R.M.G., with him when he was arrested. By permitting Gallardo to keep R.M.G. with him, the Border Patrol agents did not improperly make a custody determination;  rather, they left the status quo in place and refrained from making a custody determination, in that they declined to take R.M.G. away from Gallardo against his will. The Border Patrol agents cannot be meaningfully said to have “detained” or “deported” R.M.G., because it was Gallardo, and not the Border Patrol, who decided that the baby should go with him to Mexico.

Though I might be missing something, this sounds ridiculous. The agents let the father retain control of the child and take her out of the country. The mother's claim was known, including (at least for the sake of this lawsuit, see Judge Stewart's dissent) the American citizenship of the child. But, no no, they didn't "make a custody determination" at all; they just "left the status quo in place" (the status quo was that the father had custody -- legal control -- over the child!*). As to who "deported" her, it is not like the father wanted to leave the country and was allowed to take the child along. He was deported!

And, since the mother surely had a claim over the child (what court would not give her custody in this situation?!), by "allowing" him to take the child, and not giving her even a day to get a court order, what did they do if not "detain" the child, except in a merely sophistry type sense?! But, the mentality of certain judicial ideologies leads to this sort of thing. Government agents get discretion and attempts to limit it to some reasonable degree, or penalize the government for abuse of said discretion, leads to this sort of refusal to obtain judicial relief. Legal technicalities (and family values) are sometimes important, sometimes not.

To cite one of the headlines in the first story: "Terror en familias hispanas."

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* Some might argue I'm using "custody" in a somewhat colloquial sense here, but that is something of the point -- legal principle at times resists ultra-technical application of legal terms, which in practice rarely turn out to be as clear-cut in practice. And, some family law expert probably can use "custody" quite technically and apply it in this situation.

"They got their mushroom."

Charming stat -- the Mets are leading in the category of giving up grand slams (see today) but has not yet hit one. They had about three shots in a recent blowout, but still couldn't do it. When it was 24-0, did Eli's dad tell Peyton "just let him score once" or what? Mushrooms.

Week 2

More good games, including the Jets actually deciding to play offense. There were two successful onside kicks to go for the tie in the last possession, both teams ultimately failed. The Detroit effort was lame: lots of time, only needed three to tie, but four incomplete passes.

Wisdom of Bucky

Time to Rally the Troops

Let me be clear: the idea of an inevitable Republican landslide in November is not a foregone conclusion. It’s a self-perpetuating bit of wishful thinking that’s gaining currency through the force of being recycled ad nauseam by overzealous pundits.

-- Charles Blow

It's not elitism to oppose them

And Also: A bit of music. She sure "can really wail on that cello."

Glenn Greenwald are among those who are concerned about how Christine O'Donnell and other Tea Party candidates are being treated. They feel there is some uncomfortable elitism and patronizing going on. This really helps them since being "victims" (while scorning others who claim to be) is a core thing they do. [Palin, now O'Donnell, has the "us v. them" shtick down. BTW, the woman QUIT HER JOB ... why doesn't that disgust more people?] The movement, misguided as it is in various respects, expresses some real concerns and grievances. We might add that they are akin (since they are really but a representation of it, pretending something truly novel is here aside) to "family values voters" or the "moral majority" and so forth on that front.

Sure. There are some real grievances and concerns. But, the cynicism and disdain is earned as well. Take this new video from the "Citizens United" (remember them?) crowd. As I noted in comments, the preview is filled with platitudes that could easily be said by left leaning women. Also, let's not forget some of the women glorified here did things like block the ERA -- women power indeed. Bottom line, they are promoting bad things. This much like why naturally conservative black people are so loathe to support the Republican Party. True populism mixes the conservative with the socialist, government guaranteed health care with various hands off government sentiments. This is faux populism.

I will say it again, even if I said it a lot in the comments of GG's posting -- O'Donnell is targeted for a reason. It isn't just elitism, or really that much at all. What after all has she spent her public life doing, other than running for office? [Greenwald cited Alan Grayson as a newcomer to the Congress too; a moronic comment given the guy has an impressive resume, down to serving as a law clerk.] She was a promoter of socially conservative values. And, not just as a matter of faith. She also wanted to affect public policy. To cite an example:

Christine O'Donnell opposes gay marriage and extramarital sex. She gay-baited primary opponent Mike Castle. She has issued statements opposing that which "legitimizes a homosexual lifestyle." She worked with people who "cure" gays. She once said a gay ambassador appointee had "ties to the pedophile-rights movement." (Lest there be any doubt: It was a complete fabrication.)

More here. Oh, by the way, she has a lesbian sister. Cheney has a lesbian daughter but actually publicly opposed anti-homosexual legislation, if going along for the ride when in a support position (that is, as a vice president, who doesn't make final calls on policy). O'Donnell opposed public policies promoting condom distribution because it would help the spread of AIDS. She is not atypical in this regard. Rachel Maddow has reported about how extreme many Tea Party candidates are in respect to abortion rights, even as compared to Republicans normally (recall how the Republican nominee for U.S. Senate in NH was a "moderate" conservative for supporting exceptions in the case of rape and incest). See also, here.

Again, I refer you to the book on the SSM fight ("gay marriage" being misleading, since again, you need not be gay to have one) where various conservative* leaning folks supported civil unions. It is quite possible to do so and/or have "values" (some voices at the value voter meet-up going on now, notwithstanding**) while not being a Democrat too. It is almost amusing reading some people (see Glenn Greenwald yesterday -- another piece that didn't quite work for me given this very point ... and why don't he respond to kneejerk comments from this crowd?) who think Obama has done nothing "progressive," while people are voting for people who think he and his ilk are a bunch of "socialists."

I would be able to respect, but still oppose on policy grounds, some people who vote for Republicans who are not so hateful and supportive of restricting our rights (while crying about "liberty" ... the individual mandate fight is particularly ridiculous here, given how few actually are "forced" alone). They can be against same sex "marriage" (wrongly, but so be it) but still understand the importance of some sort of civil union benefits:

The couple had always avoided doing any legal planning, but this summer, after an operation to remove part of Ms. Glazer’s kidney, they realized they had to. They wanted to protect themselves and their joint property, and they wanted to give Ms. Bacolas the right to make medical decisions on Ms. Glazer’s behalf. Registering with the city as domestic partners was the obvious solution, but it sounded as impersonal as a trip to the D.M.V.

They can be wary about federal power, but be consistent about it. For instance, if a state allows same sex marriage (fill it in for Canada) in a case like this, federal benefits should apply:

Lee Kandu never wanted to be a crusader for same-sex marriage. The Castle Rock, Wash., woman just wanted to file for bankruptcy protection so she could keep her house after her spouse - a woman she married in Canada - was diagnosed with terminal cancer.

But her case thrust her into the national debate when a federal judge in Tacoma ruled that Lee and Ann Kandu, a lesbian couple, can not file jointly for bankruptcy protection as a married couple. Federal law, the judge ruled, defines marriage as a "legal union between one man and one woman."

Catholics are a particular group who know the importance of respect for individual freedom as well even as they respect the importance of faith. After all, their views on divorce aren't quite generally accepted, though of course, many in this country are actually "cafeteria Catholics" anyways. This should be understood as O'Donnell and others put themselves out as victims, criticizing their desire to force their personal religious views on the rest of us the ultimate reason why we care about their views on masturbation or the like. I don't doubt that she is a "nice" person in certain respects, but someone who supports very mean policies.

It all seems like the stereotypical dumb blond who couldn't walk and chew gum at the same time. But, many people can; they have nuanced positions, some which I don't agree with, while not being tools. I know some of these people personally. I don't see enough of them in many of the candidates out there. Their flaws might explain why they are so camera shy, so unwilling to actually be honest and upfront outside of their comfort zone (as implied above, I don't think they are fully honest overall). And, I fear November partially for that reason.

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* Sometimes, I have to deal with people who debate over labels such as "conservative" or "liberal" (or "left" or whatever). Some will define "conservative" in a certain way. So, if a person supports same sex marriage, let's say Ted Olsen, they can't be "conservative." "Conservative" is more like the people covered by John Dean's book, in effect "conservatives without a conscience." But, this isn't really how many people define the term. To not call George Bush's solicitor general "conservative" is a bit ridiculous.

** Keith Olbermann played something said by Huckabee comparing the requirement to provide health insurance to those with a pre-existing condition to getting fire insurance for a burned down house. Oh, it pissed me off. I thought it was sick. A person all for Christian values, even supporting some government spending for that purpose (the horror), compared a person needing health care to someone's house or car.

A rather selective reading of Jesus, I would say.

Math Doesn't Suck

Smart girls are sexy; just look at and ask Danica McKellar, the crush of boys of yore via Wonder Years, who now has a sideline of all things math writing, geared to middle school girls. Some think the books are too "valley girl," but they look pretty good to me. Good luck!

I'm with you Jon Stewart -- Tone It Down!

In the book on SSM in Vermont, the author noted various Republicans and people other than the usual suspects supported civil unions. They opposed strident bigotry and unfairness. For sanity. These people need to say "no" to the likes of Christine O'Donnell.

Give or take 100K or so?

A Reuters article on the "apparent spoof of the recent Tea Party rally" planned by Stewart/Colbert (don't jump to conclusions now!) puts forth a rather high estimate of the original numbers.

Constitution Day

On the day of signing, a bit of reading.

Um not quite

This is somewhat disappointing. The comic is b.s. -- a "militant" atheist would be violent too. Also, if you call the other side "deluded" in title of your books, you are "aggressive." Sorry, Jen.

Quick Thoughts

A big believer in character actors, this guest op-ed was appreciated. As to this, (sorta) wrong -- it's a good idea, since it promotes principle over bare political expediency. Aim for the fences though yes it does have an extremist flavor. But, so does the movement itself.

Sports Quickie

It's done, so he wasn't evil or anything, but Jeter faking being hit last night (which could have but did not change the outcome) was still cheating. The Jets should have won; it took extra bit of lousy not to. They lost 10-9, including a penalty extending the one TD run.

Preposterous propositions

And Also: I agree with the image of "whack a mole," which is a useful metaphor overall, even outside our current foreign policy.

But the larger question is whether the country is ready to deliver a majority to a Republican Party that now holds problem-solvers like Castle in contempt, is scared to death of a well-financed right wing that parades under a false populist banner, and, in primary after primary, has aligned itself with Sarah Palin, who anointed O’Donnell one of her Grizzlies.

Will moderate voters take a chance on the preposterous proposition that this Republican Party will turn around and work in a calm, bipartisan way with President Obama? Or will they use their ballots to wake up the Republicans and tell them that they need more Mike Castles, and fewer extremists?

-- E.J. Dionne Jr.

A tiny pool of Republican primary voters helped but even if it was fifty thousand (see Biden interview) or some such number, some sanity can be hoped for. But, "preposterous" is a good word to apply to the perverted mind-set that allows what is happening in government these days.

Glenn Greenwald (citing Karl Rove? low hanging fruit!) sees some sign of class discrimination, but as I noted in the comments, don't quite see it. There are some real reasons to oppose her and other tea party candidates. Sharon Angle et. al. are worse than many Republican regulars (who I don't want either), including those kicked out for the crime of working with Democrats. He really goes after some candidates, crying hypocrisy that isn't quite there, suggesting the Senate is just a bunch of tools. I'm sorry, there are quite a few credible people there, and not just his token maverick, Russ Feingold.

It is helped by a certain degree of intellectual laziness displayed by calm cites of this as "interesting" as if we are supposed to take it seriously (see comments, including mine). Just going for the non-elites, who as Rachel Maddow et. al. show are not as elite-free as that last link implies, for the sake of that or in anger leaves a lot to be desired. There are outsiders (Al Franken, for instance, and various others not as well known) out there that can be used to fight the system. It is lazy and reckless to push for change by picking many of the people out there now.

Up to a point, yes, it's understandable and how things should work. But, it remains preposterous to expect reform with this bunch of insurgents. It is as or more likely that more of a bottleneck will occur and Obama will be assisted since government will seem more divided, the opposition more unhinged/a threat. Hopefully, nature ebb and flow will lead to somewhat better economic results, though I doubt support of less taxes for the rich and overturning flawed health insurance reform and the like will aid that. The enemy of your enemy is not always your friend.

I wonder how the Lib-Dem/Tory coalition is going across the pond.

Quick Thoughts

A little reported, but notable (and rare) event, is occurring this week -- the trial stage of the impeachment of a federal judge, who has an Olbermann repeat guest star on his side. Meanwhile, Lady Gaga guest Katherine Miller is pretty cute (and brave). More here.

Civil Wars: A Battle For Gay Marriage (Vermont)

That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community, and not for the particular emolument or advantage of any single person, family, or set of persons, who are a part only of that community; and that the community hath an indubitable, unalienable, and indefeasible right, to reform or alter government, in such manner as shall be, by that community, judged most conducive to the public weal.

- Art. VII, Vermont Constitution

Though the Hawaii Supreme Court put the state to the test, the Vermont Supreme Court was the first state court to make a final judgment in support of the rights of same sex couples challenging state marriage laws. As discussed in Civil Wars: A Battle for Gay Marriage* by David Moats, the lawsuit was carefully tied to state practice. A federal claim, especially in the age of Bowers v. Hardwick (the state ruling was handed down in 1999), would be trouble. But, state practice was different, including given anti-hate crime legislation and recent judicial and legislative support for same sex adoption rights. As the state supreme court ultimately noted, the last one belied the need of limiting marriage to different sex couples.

Vermont also has a libertarian side, if one with something of a conservative flavor, present as far back as its origins -- it was the first place slavery was abolished and the state had universal male suffrage way back in the 18th Century. The ability of liberal Republicanism (shown by Sen. Jeffords) to continue to thrive benefited the cause of same sex marriage, down to the former Republican attorney general who wrote the majority opinion in Baker v. Vermont, a Republican more in the shade of David Souter (NH) than many we have seen of late. The fact it is not simply liberal is suggested by a remark Sen. Leahy made during the Kagan hearings about how the state's gun laws amount to a few regulations to give animals something of a fighting chance.

And, this was seen in its jurisprudence as well. A few years before the marriage ruling, the Vermont Supreme Court provided a liberal reading of an adoption statute, making it one of the first states to expressly allow same sex (second parent) adoption. It was one of the states that held for equalized funding of school districts. And, the "common benefits" provision was applied generally, even to economic legislation. In fact, two judges were wary that the ruling here opened up more careful review of such legislation, the concurrence particularly desiring to provide some limiting principle via application heightened scrutiny of suspect classes, including by sexual orientation.

[The majority denied that it was not given special concern to the interests in question, but its balancing did appear to have a potentially broad reach, depending on how it was applied. This is comparable to Casey and Lawrence, which had some open-ended language that their authors might not intend to be taken as far as some wish.]

The focus on common benefits was a strategic move not without cost. It helped the majority (unanimous as to requiring some relief) to focus not on marriage but the benefits of marriage:

The issue before the Court, moreover, does not turn on the religious or moral debate over intimate same-sex relationships, but rather on the statutory and constitutional basis for the exclusion of same-sex couples from the secular benefits and protections offered married couples.

This is what makes the Prop 8 case somewhat different -- California provides nearly all the same benefits to those with "domestic partnerships," the issue largely focusing on the term "marriage." So, when the court here gave the state the option to do something similar (though "civil union" was chosen, since the other term felt cheap to many gays and lesbians, like "domestic help") it was clearly a large state. I myself thought it would not be horrible if a similar path was allowed by the Massachusetts Supreme Court, which also gave the state some time to properly respond to its same sex marriage ruling.

But, it rejected such a path the next year, and I'm not sure if its privacy / substantive due process approach matters on the point. The "stigma of exclusion" would deny common benefits as well. "Civil unions" are not "marriages" so Vermont citizens who wished to move to another jurisdiction that left open same sex "marriages" would not have the same benefits. Social understanding is a type of benefit too. Could the state give only some the label "not guilty" and say that it's fine since the state itself did not deny benefits to those without it? I'm not sure how the state handled civil contracts that favored "married" couples but that too would be an issue.

Overall, studies (and common sense) showed the two are not just different and equal, as Gov. Dean argued. This is one reason the state eventually passed a same sex marriage law. But, obviously, it still was a major advancement, as the leading lawyers (disappointed with the ruling all the same) had to admit. The logic of letting the legislature find its own way to provide relief -- see again the Massachusetts Supreme Court -- also is apparent. It is harder to totally defend the result as truly equal as again noted by that court as well. But, such is the nature of the judicial process -- perfection is not usually in the cards.

The book provides a page turning account of the battle for same sex marriage in Vermont, ending its story in mid-2003, before the Massachusetts ruling was handed down but after Lawrence v. Texas. It is written by the editorial page editor of a Vermont paper that was on the side of marriage equality, including civil unions. We do hear about those from the other side, including the "eloquent" testimony of a bishop. This last bit rubbed me the wrong way somewhat since the "eloquence" was in promotion of bigotry. No mention about the bishop speaking for a Catholic legislator who voted for the bill and then could not go to her usual church without negative backlash.

The book provides some personal stories of people involved, including an older small town Republican farmer/legislator who was among the members of his party supporting civil unions and paying for it at election time. I would have liked a bit more about the opponents though, a bit more fleshing out of them and their backgrounds. Again, they were not totally ignored, and they were dealt with respectfully, but the story was focused on the other side. Since the vote was fairly close (less so for marriage, where there were votes to override a veto), this is somewhat unfortunate. Still, overall, I agree with the positive reviews.

It is also a telling look at a certain period of time, one that might seem out of date even only a decade later. An interesting contrast as well with California, which went a somewhat different way, in part because of the ease of popular referendum. Other stories might be ready to be told. What about Iowa, whose supreme court also unanimously protected the rights of same sex couples? Its experience is sure to be somewhat different, it coming a few years later itself relevant.

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* The partial dissent, which argued for an immediate remedy, noted that the law was sex discrimination, even if it mostly impacted gay and lesbians:

Thus, an individual's right to marry a person of the same sex is prohibited solely on the basis of sex, not on the basis of sexual orientation. Indeed, sexual orientation does not appear as a qualification for marriage under the marriage statutes. The State makes no inquiry into the sexual practices or identities of a couple seeking a license.

The basic point also was not the intent of the original law, but the current practice that continued same sex stereotyping. The dissent admitted that the original drafters of the law probably weren't thinking about gays and lesbians or the possibility of men marrying men etc. But, current practice was still discriminatory, sexual discrimination in marriage over time relevant as well.

The majority noted that unlike Loving v. Virgina, a glaring discriminatory purpose was not in place. ["Plaintiffs have not demonstrated that the exclusion of same-sex couples from the definition of marriage was intended to discriminate against women or lesbians and gay men, as racial segregation was designed to maintain the pernicious doctrine of white supremacy."] But, the marriage law still was written on the understanding of certain (stereotypical) sexual roles. Since childbearing wasn't the only reason for marriage, as noted by the majority, this included things other than that issue.

Call it "pernicious" or not, the net result is the same: discrimination by sex and against gays and lesbians. We need not berate our ancestors to determine that current practice (and to protect "the core value" of constitutional provisions, not bare original meaning, to cite the majority's test, noting they are judges, not historians) makes their choices unjust in today's world.

Kelly Ayotte Wins Primary

"Moderate" Republicans breath sigh of relief:

She is a moderate conservative who opposes abortion, but would allow exceptions for rape, incest, and medical emergencies. She has spoken favorably of a timetable for the withdrawal of US troops from Afghanistan. And while she says she would have opposed President Obama’s nomination of Elena Kagan to the US Supreme Court, she probably would have voted to approve Sonia Sotomayor.

She was involved in O'Connor's last case as a justice.

Primary Day

Undoubtedly, the right of suffrage is a fundamental matter in a free and democratic society. Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.

-- Reynolds v. Sims

The choices made by those enjoying this fundamental right is my concern, this year depressing me on that front. If you are upset at how things are going, which is totally rational, the solution is not to vote for "tea party" (seriously?) candidates or even in most cases Republicans over the Democrats available. Glenn Greenwald et. al. might "vote for the individual," which in a party system likes ours is a bit naive in various cases, but even individual choices show generally show us that.

Take Delaware. Palin's favorite has a shot in winning the Republican primary for the "Biden seat," even though the party itself seems not to want any part of her (see, e.g., Rachel Maddow recently). This shows the Tea Party is at times not the same as the Republicans -- it is a certain conservative strand of them. The Republican mainstream candidate is Rep. Mike Castle and various people say he is a decent enough person. But, even on that front, he still rarely votes for the Democrats (the senator from Alaska, however, saw the problem with even that) and is likely just to join with the usual Republican obstructionism, even if he isn't a total tool about it. And, I don't know of any reason to vote against the Democrat either. The guy keeping the seat warm seems to be a pretty decent senator too.

Periodic glances at TPM etc. that make it look like there is a reasonable chance to think Sharon Angle types will win in November on that front is really depressing. Seriously? Things are less stressful locally, since -- putting aside some random House seat -- the Democrats are pretty safe up here in N.Y. I'm not totally happy. Not too enthused about Andrew Cuomo, who is in no way as philosophically pleasing or anything like his dad. Probably a safe mainstream Democrat overall, though at times I get sort of an "asshole" vibe. Not that he has any credible opposition.

This is the general theme today, primary day. The primary issue for Sen. Gillibrand's opponent (Keer-stin Gillibrand, Clinton's replacement, has turned out to be a hard working sort who's heart is at least outwardly in the right place on things like gay rights and health reform) seems to be the need for a primary at all. After all, Chuck "I'm a bit of an ass" Schumer has no opponent. I am sympathetic and voted for Gail Goode as a type of message. As helpful as voting for John Edwards, perhaps, but so be it. My only real choice was for attorney general; picked one of four longshots, a "people's choice" (to cite one article) supported by my local assemblywoman (who I voted for, since she did nothing I know of to warrant otherwise) and Pete Seeger (not Singer!).

There are some real disputed races other than attorney general in the city, including some city council battles. I also had to pick six members for a Democratic convention of some sort out of seven (six names and an alternate). This is about as much of a joke as voting for a lower court judge -- I have no idea who these people are other than one or two officials (one my state senator) or what they basically do. I did a bit of research on the election and did not know of them. The League of Women Voters told me:

Offices on the Ballot for 2010: The 2 New York Senators and all members of the House of Representatives; Governor and Lieutenant Governor; Attorney General; Comptroller; all State Senators and Assembly members.

Only three (Gillibrand seat, attorney general and assembly) of these ran opposed for my district and only one (attorney general -- with so many candidates, there is a chance -- somewhat ridiculously -- of a run-off; the waste of time/money underlines the value of instant run-off voting) really contested in anything but name. The primary is not a waste of time, however, for two reasons. One, it opens up the possibility of a challenge, if the person deserves one. Two, it provides a low voltage first look at our new machines.

New York has been late to the party on this front though federal legislation passed a few years back has made it a matter of necessity to end our throwback lever machines. The League of Women Voters page has a YouTube demonstration of the new system. The voter signs in as usual (our "voting id" system) and is given a paper ballot. Mini cubicles are set up with pens to fill in the proper ovals (appropriately, my polling place is a school). Then, you go to the machine in which you feed the sheet for scanning. A folder is given so while you walk, the ballot isn't open to view. The demonstration suggests that "overvotes" will be flagged by the machine, which would have helped in 2000. There is no receipt.

It was pretty painless and I guess it's quicker (and cheaper -- there seemed to be two machines to feed ballots into but I might have missed something) than some machines which are more like ATMs -- you don't feed in a ballot (surely this will give rise to some cases where ovals aren't filled in properly or something?) but select your choices on the screen. Filling in six ovals for the convention nominees, for instance, was a bit tedious. If there were more races, it might have taken longer. People are fairly comfortable with ATMs by now. This is more akin to a standardized test, which many haven't taken for quite some time. Time will tell.

[Before I posted this, I checked the Election Law blog and it did flag some problems, the second a substantive one for third party candidates. I'm not surprised there were some problems on the first day out, which again makes it helpful that a low output primary day is when it occurred. This might be a problem as a matter of selecting candidates, surely, but better in this context.]

A final word about going out to vote. I might be a bit traditional and sentimental on the point, but do feel that it a good idea to have voters actually go out and vote. Physically going to the polling place, with options for absentee as needed surely, is to me a helpful way to remember your separate role as a citizen, a voter. There seems to be -- I use that word advisedly -- a symbolic value at least to have a voter go in person, instead of absentee. For those so worried about "voter fraud," it also is (to the degree it matters, which it really does not in real terms) less likely to be problematic if someone is physically present.

And, though it is not in place here, various tools and so forth can be present to help and encourage the voter. Either way, today's an important part of being a citizen. Bad choices or not, I hope many take it to heart.

[Update: I thought there might be a run-off for attorney general, but the person I thought would win (though less of a shoo-in than I thought) did so with a narrow plurality -- not even 40%. Other state races went generally as expected though the tea party candidate for governor won the Republican primary, sharing the honors with Mike Castle's opponent. A nailbiter in NH. NY state senator troublemaker and overall tool, Pedro Espada, also lost.]

Polygamy Scenario

What would happen if a foreign polygamous couple resided in let's say New York? An opinion letter by the Maryland attorney general concerning recognition of out of state same sex marriages had this interesting tidbit:

Fn 53 While it remains extremely unlikely that Maryland – or any state – would recognize foreign polygamous marriages generally, such marriages have been recognized by American courts for specific purposes, such as inheritance and property succession. For example, in a case involving a native of India who died intestate in the United States, the court held that his two legally wedded wives in India would be allowed to share in the estate, and indicated that the public policy exception would have precluded recognition “only if decedent had attempted to cohabit with his two wives in California.” In re Dalip Singh Bir’s Estate, 188 P.2d 499, 502 (Cal. App. 1948); see also Scoles & Hay, Conflict of Laws (1984) at 446 (“The courts do recognize the legal existence of and give effect to foreign matrimonial unions that do not conform to requirements for the marriage relationship among their own people.... It may be doubted whether a foreign visitor would be permitted to cohabit here with his four wives, although even this is uncertain. Children of the union would probably be recognized as legitimate.")

The 1948 ruling cited a few cases from the 19th Century involving possibly polygamous Native American marriages. At least one case involved legal liability or rights not present if a woman was married; would this be transferable to a case of spousal immunity for multiple wives? California is more liberal in respect to comity, but cases from more conservative states were cited. As shown, it also is not just a matter that suddenly arose in our same sex marriage era.

In fact, given some tribes had same sex marriages for quite some time, that very issue in theory could have arose in the 19th Century as well. At least, applying general principles. Meanwhile, there is a case in Canada examining the very issue of polygamy. As noted by the letter, this is a potent issue given the number of nations that allow the practice.

Chiefs Hang On ... Exciting Finish

Conditions helped but the defense won the game.

NY Wins/Loses 1-0

Some guy named Reid Brignac did in the Yanks, who have done pretty well this year with flawed stuff, while a junior varsity version of that pitching duel ended on the Mets end with a win against Chan Ho Park (yeah, he's a Pirate now). Chiefs up by 14 at the Half!

Like a Bad Night at the Bar

Problems scoring all around. No score for the baseball teams (versus superior and inferior competition) into extras. But, true ineptitude, down to the final play, for the Jets. Who, with a bit less sloppiness still had a chance to win. Overhyped indeed.

Sotomayor For/Against Holly Wood

Justice Sotomayor wrote the 7-2 ruling dismissing a habeas claim of an allegedly mentally disabled (or enough so) capital defendant. But, she (alone) last week supported a stay of execution. It's moot now.

Meghan McCain

And Also: "The policy implements a referral process to relevant Offices of Inspector General whenever there are credible allegations of government wrongdoing in a case, but the assertion of state secrets privilege might preclude the case from moving forward."

Meghan McCain is promoting her new book Dirty Sexy Politics as shown by recent appearances on Rachel Maddow [two segments on "The Interview"], Jon Stewart [after it covered a search for the next justice ... in Staten Island] and a write-up in the NYT. The article portrayed her as a cheery open-minded optimist:

Her goal for the book, she said, is to “inspire people who feel disconnected from the political process,” particularly people her own age. “I’m friends with people that probably would describe themselves as socialists and people that are much more conservative than I am,” she said. “I can always find a middle ground.” ...

“I’m pro-life, but I’m pro birth control. I am also pro being realistic about the kind of world we live in.” She supports marriage equality for gay Americans, she added, because, “I have friends who are gay, and I’d like to go to their weddings.”

She says she loves the Republican Party, self-tested herself and determined she was a 8 of 10 (support of cap/trade policy hurt ... must have been when her dad didn't support it, but who knows?) but is upset at the extremism of her party today. Not surprisingly, MM is glad her dad won the primary: "My father hasn’t changed. The media bias has." Some of the comments were not supportive on that point. After all, he shift to the right seemed rather apparent and on this subject, who is she to talk about bias? But, on the other hand, maybe he always was a "whatever gets me elected" hypocrite. I'm not sure that is what she meant though.

The Maddow interview was nice and all -- RM clearly likes her energy and so forth, and I can see why -- but it was not really totally honest. Yes, she admitted that she disagrees with her dad on DADT. But, if MM (she seems like someone who would have a nickname like that) is all for moderation and honesty, she has to be faced with basic questions in these interviews. The party isn't moderate now. Does she support various hard right, unmoderate (divisive) candidates that are running now? Is her loyalty to the party kneejerk on that front?

A true moderate, like um Lieberman (who she wanted to be McCain's v.p.), would be willing to vote for the other party if the alternative was lousy. And, what about being pro-life? What does "being realistic" mean? Does that mean she realistically (is it only that?) aware that it still must be a woman's choice? Pro-life or not? And, if the candidate is not so supportive on such basic things, would she be willing to vote for the other person? Where is her line?

I think she honestly is trying to be a voice for young Republicans and those interested in politics in general, who are socially liberal on many issues, but if Meghan McCain is going to kneejerk support Republican tools (or any such people) who want to force women to have children even if their mates and religious advisors agree that they need not or to amend the Constitution to bar same sex marriages, she's still sort of part of the problem.

She is lying to herself. She is no 8 of 10 as the party is now set up and if she wants to reform it, I'm supportive. But, that includes some tough love, and some bluntness that these interviews are likely to often avoid. When it comes to her own dad, it's somewhat okay to give her a pass. Who is totally unbiased about loved ones? But, in general, not so much.

I will try to read her book when it comes out and get back to you on it.