Some thoughts on Wikileaks

The 21st Century has removed many barriers, resulting in dumps of information like this that has good and bad aspects. Blaming any one source is as misguided as claiming there is nothing to see here. The value of maturity and media to process this stuff is both evident.

More on Stevens

And Also: God of liberty: A Religious History of the American Revolution by Thomas S. Kidd is interesting but incomplete. Much on evangelistic faiths while deism and such is covered less. The essential unifying function of religion is not quite shown. Still worthwhile.

My quick comment on the Stevens' book review was too quick on one point. It was not his comments on "activism" that I was thinking about but his "agenda" point.

In 1972, in Furman v. Georgia, the Court effectively invalidated all forty-one existing state and District of Columbia capital punishment statutes. Rather than advancing Justice Goldberg’s purported campaign, Furman, in Garland’s view, was a failure: a temporary moratorium on executions that energized and motivated a powerful pro–death penalty movement. But that analysis presumes that the Court should have been or sought to be an “engine of reform.” That is quite wrong. The Court has no agenda of its own, but may (and must) only decide issues that litigants raise in cases over which the Court has jurisdiction.

The Court continuously has some sort of "agenda" and has various means, including docket control, to carry it out. There are various limits to this "agenda," but suffice to say "Gideon's Trumpet" just didn't fall into their laps. Other examples, back to the days of John Marshall, suggests some sort of "agenda." Some discussed his comments on "judicial activism" and so forth. I responded. Simply put, the best approach there is to focus on the merits, not just "he likes or dislikes the result" sort of thing.

Stevens also was on 60 Minutes, part of his end of his tenure media blitz, this time shown on television. The most notable bit probably is getting Souter to consent to on camera comments, including commenting how one strong opinion by Stevens was an example of him "earning his salary." To be honest, when he was nominated, I wasn't sure about the guy. Now, I think he is probably the best selection in my lifetime. Stevens was selected when I was quite young, but Souter was nominated post-Bork, when nominations were more complicated. So, that underlines the value of his pick.

The Supreme Court is back to work. A couple interesting statements regarding orders. The "liberals" via Sotomayor went out of their way to make a statement regarding a capital case that agreed with the denial, but noted that some other like event might not be as "harmless" as this one. Justice Sotomayor has shown signs of being the future strong voice on the liberal side. This is not the first time she went out of her way to flag an issue of concern.

Meanwhile, Alito pointed to a copyright case involving a teenager downloading files, agreeing there is no apparent circuit split, but the question is worth review. And, tossed in that if the case will be easy to make, some discretion to take age and other criteria into account might be warranted. Recently, I was thinking that overall Alito has not impressed me much at all, coming off as a bland conservative with some asshole tendencies. But, here he shows some promise.

"On the Death Sentence" [Stevens Reviews Book]

Justice Stevens provides a quite interesting [his final stance on the Court] review of Peculiar Institution: America’s Death Penalty in an Age of Abolition by David Garland.  The no "activism" point is dubious.  Two recent speeches on other subjects can be found here.

NYG Win When They Have To

Brandin Rackley sighting last night.  She's fun.  The Giants finished off a Second Half comeback this time, the defense doing their job when it counted.  Buffalo again played like the best two win team.  The fact they still are playing here? Again, two win team.

Desert Hearts

The stories behind both this film (see, e.g., commentary track) and the original book (which goes in some other, somewhat melodramatic, directions) are interesting.  The film itself is small/indie at its best, telling a good story (rough along the edges) with great performances.

A bit more

Saw Ms. Applegate on Conan, heavily pregnant and doing well as to her recent health issue (also a subplot of sorts on In Treatment).  Tangled seriously addresses mommy/independence issues and is overall good stuff, so some bland aspects still make it a fair bargain. 

Happy Thanksgiving! [Football Edition]

Dallas (down to the wire) and Detroit (into the Third) failed at upset attempts while the Jets again waited until the Second Half (but not as late as usual) to dispose of a mediocre team.

Nice Film, Psychoanalysis Optional

Tangled is an enjoyable take-off of the Rapunzel fairy tale, if more tame than the original.  Pretty tough backstory all the same, if a somewhat boring love interest.  Nice songs and scenery with the cute animal stuff also well restrained.  Oh, it's "PG" but not too harsh.

Happy Thanksgiving!

Not my family's approach.  Happy Birthday to Christiana Applegate.

Big Picture on Airport Screening Controversy

[Via TPM, here is a TSA information video.  This sort of education should be a main priority, including informing media centers, travel agencies and businesses that influence public opinion.] 

The big picture should be kept in mind here; the fact that someone does not personally fly, rarely flies or even finds this of trivial concern does not end the issue.  The matter can and should be addressed from various angles.  Some will focus on one or the other and if this leads to more focus overall, all the better. 

Some, particularly those who do travel a lot, find this a wrongful invasion of privacy.  Any single invasion can be explained away. Even a warrantless invasion of one's home. If the police stops by your home and asks to come in to ask a few questions, one might say, "I would say 'sure,' since I have nothing to hide." But, invasions of privacy as with everything else is not a singular thing. This occurs to some people more when the issue at hand is (whatever that might be) concerns them the most. Then, as here, they care.  See, e.g., Glenn Greenwald today on the "theater" of the whole thing, but also see here on concerns about unnecessary use of radiation in other contexts.   "Reasonable expectoration of privacy" is going to on some level have a populist flavor, minority rights not always weighed equally. 

The issue at hand isn't quite novel. Before many who are wary of their "junk" being touched were born, the Supreme Court upheld a detention at an airport to allow time for drugs to be excreted and/or to allow a rectal exam. Justice Stevens noted that this otherwise would be unjustified, but she was given an easy alternative -- an X-Ray. We have here a similar "alternative" (more graphic* but the patdown is not quite akin to an extended wait and rectal exam either). The dissent rejected this invasion of privacy to prevent the evil of the day, citing health concerns as well.

Drug profiling has been criticized in part because of its questionable efficiency. Rep. Rush Holt, a member of the "biomedical caucus" (obscure but probably more important to the general public than many of the hot button caucuses), raises this and other concerns here, including the dangers of repeated exposure (as would be the case for business travelers; FDL flags other possible sensitive groups here). Cited is the Israeli screening system, particularly since Holt often traveled there and experienced it first hand.  The matter was briefly addressed on Keith recently but I received few specifics.  There might be a reason why it is not used here.  This underlines the need for a full and educated (and educational) discussion of the issues, including in media accounts.  I was also pointed to this.

Efficiency should be a pragmatic concern of those who do not have as emotional of a response as some people (the same applies to other things, such as torture and cruel treatment). Not being an expert, I just raise it as a concern, particularly since societal opposition has to be taken into consideration. Sometimes, privacy and other good things has to be invaded. But, since they are important as well as essential rights under our system, it has to be done with special care. The same applies to the secrecy of the methods here. Yes, the TSA might rightly in various cases retain some secrecy. But, if handled badly, society (and members of Congress) won't trust them, and the net effect can be that it won't be allowed to do so even arguably when it should.

An alternative suggested is racial profiling. Of whom? Jose Padilla doesn't really look Muslim to me. If there is to be any profiling, it should be by action and other neutral criteria. Just you watch. Some Timothy McVeigh sort will try something. After all, if an doctor can be assassinated in a church, why not an airport or airplane? Rationality isn't the name of the game here. Some scenario can be imagined where some explosive device will be used that can threaten the well being of the passengers and plane. Again, I'm not an expert.  ["Arlington" is and has various posts that are worth reading.]  It's just put out there as something to consider as part of the mix.

Finally, in respect to the planned protest. I have mixed feelings. I don't really buy the hyperbole of some who deemed it "cruel" or the like. I can be convinced that it's misguided. I also sort of doubt THAT many people would actually go through with it; surely, not enough to shut down the airports or anything. If the only result is that there are some delays, it very well might be worth it. Protest is not some painless event. It is likely to result in some discomfort to ordinary people. It's hard to judge though until I see the effects of the actual protest.

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* At first blush, I personally don't find the images as offensive as some people do. We are not talking about actual pictures of our nude bodies. "Sexual assault" is a bit much.  And, the "don't touch my junk" business is a bit infantile.  So is fear of "homosexual" TSA agents. Keith has been a tad overblown too. 

But, yes, some intimacy is at issue, so some special care should be involved.   A look at the FDL flier linked about suggests this is not just stick figure stuff; questions about protecting the release or storage of the data also have arisen (but see here -- this sort of thing has lots of nuances).  Likewise, as to the patdowns, they are more intimate than the run of the mill sort of thing  but as noted above, in other contexts, intimacy is violated too.

Ultimately, as Arlington notes, the whole privacy thing on some level boils down to personal opinion.  And, Chris Hayes was right last night to have mixed feelings about the whole thing overall.

May It Please The Court (Peter Irons)

Re-listening.  Some sloppiness, including some simplistic analysis and mislabeling justices.  Still, worthwhile effort, especially in the 1990s.  And, you want activist? Try this attempt to overturn Roe by twisting a minor regulation after interpreting the others narrowly!

Bye Old Man

This seems patently obvious for the Vikings; not saying it will happen.

Lunch Quickies

But what Tom Coughlin called "a callous disregard for the football" cost the Giants (6-4) again. They now have a startling 30 turnovers through 10 games and a turnover ratio of minus-8.

Yup. Meanwhile, if true, this Mets fan wanted more of a spark.  Funny Rachel and Anne on SNL and the political satire hit the mark too. 

Jets Play With Bottom Feeders Again

Given the number Buffalo (sic) did on the Bengals, the Jets can toy with mediocre teams (who have talent but not enough) again on Thursday. How else to explain that defense fail in the 4Q?  The Giants had chances (again) but (again) choked.  Helps some Jags are next.

Road Trip!

This is a fun and interesting account of Truman and his wife taking a trip on their own in 1953, while the author provides some color commentary of sorts along the way.  Nice Xmas idea.

Brandin Rackley

Guess who was on cable last night, this time playing an American?  Actually, seriously, she is pretty talented.  She is quite good in a stand-up routine under her married name.  She provides an amusing story about filming the movie here. Comes off as a fun girl. Not fake.

Nah Prof. Amar, Let's Stick With Discouraging the Use of Torture

Akhil Reed Amar is over at Slate providing his own spin on what "the Founders" thought about things, this time in response to the Ghailani verdict.  I have read him some, and his fresh perspective is often quite good, particularly if we don't assume it necessarily is exactly what "the Founders" thought.  But, sometimes he jumps off the rails, and his conceit (it comes off this way) of trying to make us assume that his spin is actually clearly what they thought (it gets a bit annoying) is sometimes trouble.  You can read what I said over at the fray to that article, but a taste of what turned me off:

The Founders' Fifth Amendment did operate as a rule of exclusion: It excluded the government from introducing the defendant's own involuntary testimony. But it did so precisely because such testimony was viewed as unreliable. For example, even an innocent defendant, if forced to take the stand, might sweat, stutter, or get confused, and might thus be made to look guilty. But in Ghailani's case, no one tried to put him on the stand. Rather, the government wanted someone else to testify—and the Fifth Amendment simply has nothing to say about this question. (More here on the basic purpose and limits of the Fifth Amendment.)

First, there is not clear determination what "the Founders' Fifth Amendment" is that won't divide many experts and given all of the water under the bridge since then, it should be taken with a grain of salt. We have Our Fifth Amendment now, which includes a couple more centuries of experience. Second, the concern was that evidence obtained from torture would be unreliable. Why this suddenly changes when it isn't the defendant's own testimony is unclear.  Citing what he might do on the stand is misleading overall -- that's not the only place where the concern arises. Finally, avoiding torture overall is relevant. This includes benefiting from the crime or aiding and abetting the process; this is so even if the jury wants to do so:

For those who agree with me, no distinction can be taken between the Government as prosecutor and the Government as judge. If the existing code does not permit district attorneys to have a hand in such dirty business, it does not permit the judge to allow such iniquities to succeed.

Again, the guy was convicted and was being held as an enemy combatant anyways.  The judge noted this fact as well as  that in this case it was granted that during the years of being in a proverbial black hole that he himself was coerced (at best; tortured at worst).   Given that, I really can't assume the whole process wasn't tainted given the mentality used, even if some of the evidence (who knows? do you have the evidence involved in front of you? I don't) is true and all.  But, focusing on narrow things like the reliability of the individual evidence is a rather narrow view of things.  The ultimate end is to avoid torture or benefiting its practice by allowing its fruits into evidence.  Does crime suddenly pay now?  Finally, if we want to determine what "the Founders" (yeah, that sounds fake) thought, English Law Lords a few years back held:

"The principles of the common law, standing alone, in my opinion compel the exclusion of third-party torture evidence as unreliable, unfair, offensive to ordinary standards of humanity and decency and incompatible with the principles which should animate a tribunal seeking to administer justice."

As I note over there, I'm with Justice Clark (who wrote Mapp v. Ohio, which applied the exclusionary rule to the states, after it was appied to the federal government since at least the 1910s), a former U.S. Attorney General, and fairly conservative on the Warren Court.  The rule is necessary to protect the Fourth Amendment, especially since alternative techniques simply do not work in the real world.   Outside of Professor Amar's ivy tower.  But, torture is an even easier case, as shown by UK and Canadian practice of treating it differently even under their somewhat more loose evidence inclusion rules.

Finally, the facts of this case are particularly bad to use as an avenue for Amar's campaign.  I'm still with Samuel Dash (The Intruders), perhaps best known as a Watergate chief counsel, in thinking him wrong generally.  But, using this case in particular is a bit stupid.  Adding to the meme that something wrong happened, at least to the degree of the government offering him too many rights or whatever.  It isn't even a matter of the Self Incrimination Clause, since a military commission with looser rules would have likely excluded the evidence. 

Sorry, Professor.  Fail. 

Quickies

Dolphins not showing much tonight.  Meanwhile, after named favorites by some to go all the way, now the Giants aren't even favored to win their next game.  And, reportedly (via Maddow) Murkowski will vote for DADT recall. That answers one question!

Murkowski wins, Still a Weenie

Rachel Maddow fans care about this development because it allowed the executive producer to shave off his beard.  But, when Chris Hayes (filling in for LD) after her show asked Murkowski's position on two matters coming up, she hedged.  You just won ma'am.  Why not?

The Ghailani Verdict

Amy Davidson had a good account, including a few hopeful signs regarding our jury system.  But, other media sources will speak of "major setback for Obama administration plans" front and center.  Meanwhile, we hear Ghailani thought the trial was "fair." Fail?

"National Book Award for Patti Smith"

I dreamed of having a book of my own, of writing one that I could put on a shelf,” she said. “Please, no matter how we advance technologically, please don’t abandon the book. There is nothing in our material world more beautiful than the book.”

"Tea-Partying Like It’s 1860"

NYT online has a great feature at the moment -- a type of Civil War blogging.  Mixed in is a pretty interesting look at the Boston Tea Party and its place in history.  Yes, it's by a National Review contributor.  Still worthwhile. A tad light on coverage of the modern version.

Because It is Wrong

Somewhat tedious, but the Fried father/son team does get a nod for not compromising on torture, though the dad doesn't want to punish anyone.  As to "simply" breaking the law, unlike Lincoln et. al., Bush wasn't open nor did he ask Congress almost immediately.  Fail.

Well Intentional Breach of Judgment

A gay teen is getting some nice support (I responded) for speaking out for his suspended teacher.  As the ACLU lawyer notes, however, a "teachable moment" includes not kicking out a student voicing a personal opinion that many share. I fear this can worsen things.

Decent Breakfast Alert

Picked up a box of this stuff on sale and it's good for a week's worth of breakfasts (probably more), especially if you (recommended) add a banana or something.  Best if cooked on stove. Microwave = messy.

The ACLU Freedom Files

And Also: David E. Kyvig's book about impeachment was discussed here. His book, Repealing National Prohibition was very interesting, particularly since many of the same arguments against pop up regarding Drug Prohibition.

The ACLU Freedom Files is a collection of ten 1/2 hour episodes covering many subjects that the organization handles. It provides various stories, lessons and dramatic portrayals to do this in a creative way. For instance, we meet Lindsay Earls, who lost a lawsuit against mandatory drug testing for involvement in after-school activities.  [Justice Breyer's concurrence suggests the troubling nature of his pragmatism, if  left too unbounded.] Also, the mother who lost three children in a horrible domestic violence incident, but in an arguably "activist" (overruling a lower court to provide a "better" understanding of state law) ruling, lost a chance to sue for damages.

The case heading alone suggests what is at stake, Jessica Gonzales (now Lenahan) serving as "best friend of her deceased minor children." Deceased as in "murdered by a father who then committed suicide by cop." Legal minds can determine if the 10th Circuit of Appeals and Stevens' dissent here were wrong. But, it is notable that what was at stake was a chance to make a claim. There is no guarantee she would win. In fact, when the matter went in front of an international body, the U.S. argued there is evidence that suggests she would lose her case.

The Inter-American Commission on Human Rights held that it had jurisdiction to examine the claim, but I could not find (though one citation noted a ruling was due earlier this year) any decision on the merits.* Since the U.S. never signed a treaty that would give any bite (see penultimate link), the ruling would at best provide "declaratory relief, attention to an issue, and international shaming." Some audio here reminds us also that the treaty involved isn't generally involved with the imperfections of domestic violence enforcement. Still, the lack of seriousness given to restraining orders does result in tragedy, if thankfully rarely this horrible. And, if her case is weak on the merits, why not grant -- surely given the breadth of the injury -- a hearing to her?

I know -- suits against states will not just arise in cases involving such gigantic injuries and/or when the liability of the government is clear and convincing. I still find the case troubling and Stevens' dissent convincing. A libertarian institution also shows this is not merely a "liberal" sentiment. The value of a hearing was addressed in a story, the details of which escape me. The idea was that a farmer or some such person accepted a loss in a lawsuit -- he felt he had a chance to be heard, fairly so. This inability to be heard, a gateway to justice, repeatedly was an issue in matters that came up to the Supreme Court of late.

Anyways, though at times I wanted to know more about the stories told, the series was well done. And, see here for an interesting discussion (using a cute animation software also used for some amusing videos) on privacy and Facebook.

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* As one account noted:

The admissibility phase of this case was the first of a two phase process. In the second phase, the merits phase, the Commission decided whether the U.S and the State of Colorado violated the human rights of Jessica Gonzales and her children, specifically the rights to life, nondiscrimination, family life/unity, due process, petition the government, and the rights of domestic violence victims and their children to special protections. The merits brief was filed on March 24, 2008.

She is a pioneer in using the commission to address domestic violence.

Retirement Age Nuances

If the life expectancy numbers (same as healthy working years?) are variable, this should be taken into consideration. But, again, extended education etc. should as well. Do janitors start working the same age too? (Years put should factor in.) What will 2050 be like?

The Good Witch's Gift

This is basically an enjoyable piece of undemanding fluff for fans of the Hallmark movie series, but it does have a subplot (if without too much bite) about a recently released bank robber. Some aren't big fans of redemption/forgiveness in such cases. See, Michael Vick.

Obama SG Does Its Part to Mix Church and State

The Establishment Clause case I discussed here was broadcast on C-SPAN over the weekend (audio with pictures). The taxpayers might lose, but I think their lawyer argued well. And, why is the federal government against them? It's a complicated/nuanced state case.

"Redskins Sign McNabb for Five More Years"

For lots of money. Now, this is the Redskins. Still. Oh, they are losing 59-21, still in the 3Q. Both starting QBs are in. Well, I know why McNabb is still there. Looks like Giants will be playing for first place.

Every Dog Has Its Day

Today it is was Dallas -- a shot to make it 10-9 turned into 16-3 and Giants never recovered. Buffalo did finally win (Detroit failed the 2 point shot to force an OT) and the Jets (no thanks to their kicker) won about as OT expired. Giants fans are Redskins fans tonight.

Gender Blender

I got this book for someone else but a charm is that the boy/girl body switch plot faces up to the embarrassing intimate aspects too. Like when a "boy" first wakes up. Or, a "girl" looks at her body. Many versions of this idea wimp out some addressing such details.

Love her in The Notebook

“God, she’s going to make a fortune in this business, because there aren’t a lot of girls out there with that much sex appeal and beauty who can also be comic.”

True enough -- Rachel McAdams is great, including in Morning Glory, a mostly enjoyable (if you want real depth, see Broadcast News) bit of fluff made worthwhile by the leads like her and Harrison Ford.

Newdow Loses Again

I respond here to the First Circuit upholding a Pledge of Allegiance law. Trying to explain why de minimis violations (if it is; it's really the only way to uphold it) are not violations at all generally fall apart upon scrutiny. The ruling received a somewhat critical response there.

Another Last Minute Drive

I still don't take the "repeal the 17A" movement seriously. It's required: in the last minute, each team had one more shot last night. BTW, cat food is too expensive for the "Catfood Commission" to work. What about pasta, potatoes or ramen? Talking about cats ...

Armistice Day?

Still, it would be nice to focus on and celebrate peace. Would that we had a reason.

I agree. Great interview of Jon Stewart on Rachel Maddow. Serious with some disagreement and push-back. Why can't we have more of that? It's b.s., Jon, btw, that's the problem. It's not evenly sprinkled.

Stupid and Greedy

As noted here (h/t Rachel Maddow), on the whole, Democrats will help more people with tax cuts and cost less money. But, who breaks "tax cuts" down? Without context, the Republican plan sounds better. And, high end, the benefit is actually relatively small. More here.

Raising the Retirement Age

Keeping it the same expands benefits -- people live longer, have better health care and so forth than the 1930s. People as a whole also started working later. My grandfather had an eighth grade education. Not atypical. So, a NO WAY to me is a tad curious. Better: for what?

More on Sotomayor

Mike Sacks has a good reply to an article about Sotomayor and Kagan that he rightly is suspicious of as some stretching to find a way to promote a book.  It is a bit early to to say much about Justice Sotomayor during her second year on the Court, even though there is already a biography out and Joan Biskupic is starting on her next project, which in part involves her as well.  Assuming what will become of Kagan is even more of a stretch, but that is the nature of much commentary, political, legal or sports related: a lot of assumptions. 

Still, especially after Professor Tribe's bad mouthing of her when she was first nominated coming to light, we can talk a bit about her all the same.  Linda Greenhouse has another good NYT blog post that covers ths issue some, including addressing some background to a dissent from denial of cert.* by Sotomayor that has received some attention from those who pay attention to such things.  You know like me or Orin Kerr, who I suggested at the time framed things in a somewhat slanted fashion.  It is that sort of thing, even though on the whole he is a pretty good sort on the Republican side of things (he did work for Senate Republicans), that is a red flag for me.  LG adds more detail that underlines the case wasn't just a throwaway:

The justices treated Mr. Pitre’s appeal, Pitre v. Cain, as something more than completely routine when it arrived at the Supreme Court last spring. First, the court instructed the Louisiana prison officials to respond to the petition, which they had failed to do. Then the justices considered the case three times in conference. In the end, perhaps Justice Sotomayor was the only member of the court who wanted to hear the case. Maybe there were others at one point. All we know for certain is that she was the only one to note her dissent from denial and to explain her reasons.

Greenhouse notes that it is not surprising that the Court did not take the case, since it would be basically for "error correction," which they say is not really their job. OTOH, voices from the left aren't the only ones who sometimes want that sort of thing, providing an example.  Also, both sides have now and then -- it's like a little ray of sunshine for SC nerds keeping track on its website -- did what she notes was more disfavored in the Rehnquist years,  providing dissents from cert. as a window into dissent among the justices. 

I am not aware of the level of such denial opinions during the Rehnquist years in part because it is a lot easier now to keep track of such opinions. I recently found an old tape recorder (audio tapes -- no, I'm not that old, really) and started playing Peter Irons' May It Please The Court series again. Back in the early 1990s, it was a big thing to listen to excerpts, even excerpts that was put together in a somewhat messy way as some critics have pointed out. Later on, I could get a CD with whole arguments on them. Then, listen to them at Oyez.com. Now, the Supreme Court itself provides recent audio. [Why not provide earlier audio?]

As with everything else, one can be overwhelmed. After all, we have trivia down to appointment of counsel in a case the Obama Administration conceded. [It's okay: it's not related to executive immunity, secrecy, gays in the military or such. Snark.] But, it remains a remarkable resource, and sometimes it is good to remember that. Ah, per a recent post, another "but." That should be part of the subtitle of my blog.

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* Linda Greenhouse summarizes:

Against this background, a solo dissent from denial that Justice Sotomayor published last month was telling. A Louisiana prison inmate, Anthony C. Pitre, refused to take his H.I.V. medication in protest against a transfer from one prison to another. He then sued prison officials on the ground that they unconstitutionally retaliated against him for his recalcitrance by assigning him to especially hard outdoor labor, including working with hand tools on the prison farm in temperatures of over 100 degrees and pushing a 150-pound lawnmower in similar temperatures. He suffered various medical complications, but when he complained and asked for lighter duty, he was told that the situation was his own fault and that he should take his medicine.

Kerr framed the facts -- see various comments -- in a way that is arguably (to be generous) misleading.

Keith Olbermann Again

He's back and his statement and clarifications were appreciated.

Shocker There

A federal prosecutor will not bring criminal charges against any of the Central Intelligence Agency officers involved in destroying videotapes depicting the brutal interrogation of Al Qaeda detainees, the Justice Department said on Tuesday.

But, DADT being overturned has to be appealed. It's the law and all.

One Last Drive

Bengals lose, but not before yet another game coming down to an end of regulation final drive after a missed FG.  Conan starts pretty well.

Rachel Corrie

Lawrence B. Wilkerson, who was chief of staff to then-Secretary of State Colin L. Powell, wrote to the Corries in his official capacity in June 2004. He referred to their query whether the American government viewed the military’s final report “to have reflected an investigation that was ‘thorough, credible and transparent.’ I can answer your question without equivocation. No, we do not consider it so.”

Mr. Wilkerson recommended that the Corries pursue the matter in an Israeli court. An observer from the American Embassy in Tel Aviv has attended every session of the case.

Oh? I thought it was just some lefty anti-Jewish thing.

Keith Olbermann Again

A full statement here. Overall, okay, including recognition he (mistakenly) broke a rule (more than fans some admitted) and noting the lack of due process. Dirty pool MSNBC! But, known to the public? Not quite. And, inconsistently applied? [Update: See reply at link.]

Jurors Vote for Death in Conn. Triple-Murder Case

Last month, I noted that Justice Kagan had her first on record dissent in regards to wishing to grant a stay in a death penalty case, the specific matter concerned with lack of clarity on the purity of the drugs used in the execution. Suffice to say, Mr. Landrigan was not a prime case for sympathy, but the situation in various respects was problematic, including an earlier 5-4 ruling. Still, this was no Troy Davis, where the innocence of the person is credibly offered, or any number of cases where guilt is apparent but some other problem arises.

The death penalty, however, does not rise and fall on such cases, since like Jesus' lost sheep, the stakes are high enough that even a relative few problem cases taints the system. The system will by its nature bring with it many cases that seem mostly benign (so to speak), but enough troublesome cases -- to varying degrees -- that a red flag arises. Toss in a general problem with the death penalty as a substantive level (the former more a procedural concern), even the most heinous cases do not justify it.

This includes, for me, a lack of clarity on knowing if a person has the level of guilt to warrant an execution. Free will is not so clear and strong that execution is an easy call. It isn't keeping me up at nights, but to justify taking a life, you need a pretty hard standard that I doubt is truly met. I don't find it totally benign or anything to keep people in lifeless cages for decades, something that will be deemed cruel and unusual in the future, but we do it for non-capital crimes. So, I'm unsure on that level why people who kill should get an "out" on humanity grounds. And, wrongful killing remains worse than wrongful captivity.

The immediate reason for these musings is the capital sentence in a particularly heinous (check out the picture of the family of four ... well one now ... this is the sort of thing that made Last House on the Left so visceral) crime:

A jury in Connecticut voted on Monday to impose the death penalty on a longtime criminal for his role in a home invasion in Cheshire, Conn., that left a mother and her two daughters dead. The panel had deliberated just more than three full days.

It's useful to read the details to get a practical feel of what is behind these often technical legal principles. The appellate courts are intended to be deciders of law, but in other areas, those who oppose the death penalty are likely to want them to also keep the facts in mind. They influence the law. The cases have two side, the state (serving justice for the victims) and the defendants. Victim impact statements suggest a cloudy role there; one of the two videos on the SCOTUS website is the attachment to a dissent by Justice Stevens on the matter. The proper balance is messy; the crime does have a role to play.

The death penalty opponent does not take a blind eye to the victims. Some work to help both sides. The abolitionist does question the value of executing these people, generally a random few even among the most heinous criminals. One person was executed in Connecticut since 1960. Appeals and such could not be the only reason for such a low number, there being time before Furman and since Gregg to execute some of the heinous criminals of the state. Hopefully, the sort of crime at issue here (which the person here claims, fwiw, was not planned that way beforehand -- but criminals are known to not go about things like that anyway ... it's a reason why deterrence is not a great defense of capital punishment) has been very rare as well.

The judge noted that this case is likely to go on for years. I wouldn't doubt if there was some flaw -- the heinous nature of the crime(s) doesn't stop that -- in the prosecution or sentencing. From biblical times, we made this complicated with the knowledge that will cut down the number of executions. Still, this is likely a more pure case (a rare context that Steven J. Hayes can be called "pure") than others. It still doesn't convince me the penalty is justified. And, again, the system doesn't only give us pure cases.

[And More: I'm not totally comfortable with the jurors meeting with the family here.  They there not to help the victims, but to try a particular defendant.  Justice for the family is not their direct role -- it is to try this one individual.  I understand it all and yes I'm sure others meet family members in other cases.  Also, as to if he "deserves" to live.  This underlines that the penalty, particularly in "pure" cases, often is clearly a matter of retribution.  That is the bottom line.  I realize too, see here, some think people who suggest such things are simple-minded monsters.] 

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* I noticed that I use "but" a lot. This is a result of my tendency to see most important things as pretty complicated with more than one side. Still, even with synonyms for variety, it does come off a bit off, huh?

Not Quite, But You Have A Point There Watch

Saletan is often a tool, but recent columns on how only the Dems are supposed to change and how the Dems lost the battle, won the war, are sort of right. The Dems do need to change / he's right about the hypocrisy.  And, I'm not as gung ho, but yes, there is a bright side.

Didn't I Just See This Alert

The same team that barely got nine points (with help) last week, did a Giants on Dallas, 45-7.  A low point: down 21-0, Dallas, after wasting a dumb goal line "what's the point" challenge, had no time outs to overturn a dubious TD.  The last time out did help make it 28-7.

Oakland Raiders Win Again

Today's win helped by one of those d'oh moments: third team to tie late and win OT, helped by KC not getting anything on an easy score at the end of the First Half.  Colts lose: too little time after spending too long to get it within two. Another last chance drive though.

OTOH, Giants Win A Laugher

Down 20-10 with 10 minutes left, Jets Win

And what magical despair do the Bills hold for us this week? 

-- Fan Comment

Another close loss. Meanwhile, the Jets were sloppy again, but one roughing penalty led to a missed Detroit extra point, which turned out to allow a win in OT.  Team showed something there and Pats lost.

What About Plant Based Cheeses?

The Bush and Obama administrations have helped to promote cheese, including pushing fast food to use it more, partially with government funds. Sounds unhealthy in more than one way, but will the selective libertarians in Congress care?  Their focus is to inhibit health.

Supreme Court Quickies

It's a great resource, but most Supreme Court orals are boring.  Still, as with hateful protests, the video game orals should have a wide audience.  Meanwhile, we have an update on Troy Davis.  SC or nothing.  Hey, just commute his sentence already, Georgia!

Someone should satisfy standing

And Also: The 9th Circuit also heard the now infamous Arizona Senate 1070 "papers please" law.  The oral argument suggests the criminal provisions struck down below are toast, the civil provisions partially so.  Meanwhile, a British court overturned an election because a candidate distorted his opponent's views too much!

An important if somewhat technical Arizona voucher case was up for oral argument last week and the below is mostly a post I had in reply to Dahlia Lithwick's color commentary.  Of interest is the Obama Administration getting involved -- which is somewhat curious in a state case of this nature though it is an issue of national significance that touches upon a whole Cabinet department and all -- furthering the restrictive standing policy of the Supreme Court in this and other areas. 

Reference was made to the tax payer standing case HEIN v. FREEDOM FROM RELIGION FOUNDATION and the suggestion was made that it basically gutted an earlier ruling. I'm not so sure. The ruling noted that the funding at issue -- executive spending -- did not arise from an appropriation that "specifically authorize the use of federal funds" for alleged illegitimate religious purposes. I agree with the dissent that this shouldn't have mattered and it can cover a lot of ground.  I do find those who use such things to say the Establishment Clause is "toast" tediously exaggerated.  As I noted more than once, and more than once was ignored, we have a death penalty and so forth, but our Eighth Amendment is not "toast," even though I guess exaggeration man here might think so. 

The law at issue here, however, sounds pretty 'specific" to me though the case might be used to find yet another loophole for religious funding, which someone who would respect Madison's beliefs (not a three pence! ... the reference should be read to link up to a reference in the article that justices appear now to see Madison as a "tenth justice" ... originalism isn't my thing, but he's pretty right on this issue) on the matter (avoiding funding of religious teachers was a key matter in a religious freedom law he helped Jefferson pass in Virginia, a law so important that Jefferson had it referenced on his tombstone). A taste of Madison's opinion on the matter:

We, the subscribers, citizens of the said Commonwealth, having taken into serious consideration, a Bill printed by order of the last Session of General Assembly, entitled "A Bill establishing a provision for Teachers of the Christian Religion," and conceiving that the same, if finally armed with the sanctions of a law, will be a dangerous abuse of power, are bound as faithful members of a free State, to remonstrate against it, and to declare the reasons by which we are determined. We remonstrate against the said Bill,

One concern is of equality -- certain sects and believers do not believe in such a measure or will not have the people to form schools. Thus, the measure will favor certain sects over others, a matter of religious belief not only divisive but not evenhanded. Such is often the problem, even with what appears to be benign mixture. Will a prayer or religious message be neutral enough or too neutral? Will only certain religions get a state authorized display or "day of prayer"?*

A resident of Arizona ["Tax Paying Arizonian"] argues that this is an end around to a state prohibition and deserves to be seen as the problematic 1A issue that it appears to be. Voucher programs have split some people who are usually allies but even then it is important for the individual parent to have control, not some third party like here.  The opposition during oral argument underlined the point, arguing that in practice the parent doesn't have direct control, a third party which often only accepts certain religious believers (as religious schools have every right to do if not restrained by public funds; this is not just about secular ends here) in the process.  Even some fans of vouchers might feel this is a bit hinky. The reference of Kennedy to use of such funds to support discriminatory schools is telling since there too what couldn't be done directly was tried more creatively.  Namely in the 1950s and such.  Madison et. al. didn't/don't find that appealing; if anything, it can be more divisive mixing.

This if the Supreme Court doesn't play it's game of avoidance, some members wanting them to do so because they fear the result otherwise. But, as to standing, since money to schools is involved, I would think that other schools could have standing to challenge the measure. Not taxpayers alone, but the competition, so to speak. The stem cell case in the news recently comes to mind; standing was found by the appellate court because some group's funding was threatened.

In Hein, Justice Kennedy concurred separately to suggest that he would not avoid all taxpayer standing and also ended thusly:

It must be remembered that, even where parties have no standing to sue, members of the Legislative and Executive Branches are not excused from making constitutional determinations in the regular course of their duties. Government officials must make a conscious decision to obey the Constitution whether or not their acts can be challenged in a court of law and then must conform their actions to these principled determinations.

That restraint of limited value in various ways, standing in the courts still is valuable here.

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* A state just passed a measure banning the use of "Sharia law" in the courts. What will happen when some dispute involving a Islamic house of worship or marriage contract that references Sharia is some way arises? Will it similarly not use Jewish law or Catholic law in comparable situations? The measure appears to be a blatant violation of the 1A, a sectarian abridgment of free exercise that also has establishment problems. And, any number of litigants can be imagined other than taxpayers.

Late Night

A couple good interviews: David Letterman having one of the Chilean miners on (did he ever need a translator for a guest? she was charming herself) and Craig Ferguson having Dick Van Dyke. That miner is a character. Van Dyke was a joy and the interview was fun.

Keith Olbermann

Rachel Maddow had it right -- FOX underlines true mixing of media and campaigning, but KO broke the rules. The point made, he should come back on Monday. I'd add KO should know more than FOX that special care is a good idea. Also, repeatedly people miss key details.

Jill Clayburgh Dies

She died fairly young but did not let chronic leukemia keep her down. Clayburgh continued acting after her heyday, early films including An Unmarried Woman, First Monday In October (just on t.v.) and Silver Streak, to name three I saw. Time marches on, I guess.

Keith Olbermann

I checked various blogs regarding his suspension and few comments noted that he interviewed or covered the people to whom he donated. I want to know that sort of thing and if he didn't inform his bosses, it's a no no. Even if the "indefinite" suspension business is stupid.

Seriously Iowa Voters?

The Iowa judicial retention election process might be an acceptable idea in theory but kicking out three justices for a unanimous SSM ruling? Not cool. Really? I think even kicking out justices for a Bush v. Gore ruling, still one ruling, is dubious at best. This is disgusting.

More Post Mortem

Well, I will say a bit more about the election.

First, not too surprisingly with the balance 32-30 and some members of the majority leaving something to be desired, it seems the Democrats will lose control of the NY State Senate. It is still unclear if it will be 31-31 (the lieutenant governor does not have a tiebreaker here) or something like 32-30 the other way. How much this matters is unclear though it can be very important in respect to redistricting of the NY federal congressional districts.

Second, in the U.S. Senate, the Democrats really basically did okay. The Republicans picked up six seats, but they basically came from open seats. Blanche Lincoln (yeah supporting her in the primary made sense, huh Obama/Clinton?) and Russ Feingold, the latter a tragic case, are the only incumbents (Joe Sestak* sort of was one, but not only came in 2007 but would be a newcomer to the Senate) who were defeated there. You will likely figure that in midterm elections, putting aside the times, that some seats would be gained here. And, there were a notable number of open seats, particularly if we include those running for full terms (e.g., Kirsten Gillibrand).

The real turnover was the the House of Representatives. First, it is notable that in both houses, there was transfers of power repeatedly since the 1990s. The margin of difference might be somewhat narrow realistically speaking, but it belies the sentiments of some that incumbents will simply always win. Not true. Second, a guess estimate would be that around half of the pick-ups were defeating those who won in 2008 (e.g., Alan Grayson) or were Blue Dogs, a soft underbelly in the first place. Toss in some open seats, and the breadth of the pick-ups is somewhat less significant than one might thing. Again, midterms and hard times will lead to changes usually, even if the majority party is not that bad.

I also noted last time that some appreciate divided government. I see the value of this but don't really trust the current national Republican Party further than you can throw them. This was not always true and at times individual members show some sanity even on the federal level. I also think someone like Marco Rubio might be credible even if I don't like much of what he stands for. Anyways, putting that aside, if this is a good thing, the election should not mean that Obama and the Democrats should just act like Republicans. [Or more so, some might add.] This will be what some will say. The election after all showed they are all losers. Strong independent candidates, not glorified Blue Dogs, are what the party needs.

They are not all winners, obviously, but going too far here is moronic. The net result of this election, as is often the case, will be a tiresome matter of trying to get the best we can. We see this in respect to Iraq (see Doonesbury today): the sane policy would be not to have gone in; we went in; then we had a decade (ongoing) of unpleasant at best of making the best of a bad situation. The scope of the problem made the debate important as is true in regard to supporting Democrats that support some sanity and good policies. It is fine to criticize them and their leader (Obama) as too mainstream and even malignant in various ways (see Glenn Greenwald), but ignoring that the two sides are not the same (if too similar) is also important. I fear that GG et. al. don't really recognize this at times.

I don't have that much faith (or whatever) that things will go that well over the next few years, especially since the election will be sold not a message to do things better but to do less (or more Republican), but Democrats should stick to their values, compromise less since that is what a minority power in the House should do (the Republicans just took that too far) and show themselves as credible leaders who should be trusted with power. If you think as Greenwald today said that the Republicans are really only "slightly less bad" (really? McCain/Palin would only be "slightly less bad" than Obama/Biden? seriously? this is the path to VOTING REPUBLICAN, since heck, marginal difference), the results are of the "told you so" variety. But, on some level, I agree. I expected more from the rhetoric, realizing in practice it would be watered down. Dawn Johnsen's defeat continues to be a symbol of that.

But, what is the answer? Alan Grayson feels a major part of his defeat is because his base didn't come out this time. Rachel Maddow put out poll results voters support the Democrats, but actual voters did not. This is a shoot yourself in the foot strategy. Staying home doesn't send the message that needs to be sent. The message sent is the winners are right. This has to be underlined and people like those beyond Gay USA (strong critics of Obama's policies in many cases) et. al. understand. You can be totally pissed off, but the the hell is the value of helping Republicans get into power? Primary challenges makes sense. If there was a third party option in some of these states, that would make sense. But, the message sent by staying home in general elections, or voting against Russ Feingold, is poisonous in practice. Hopefully, some valid lessons will be reached. Often they will not!

And, since the midterms were not too surprising (a third less Republicans could have gained seats and still the party would have gained control of the House), it made sense for the Democrats to use the time they had to get stuff done. Even if the critics are right that more should have been done. Some of the complaints are clearly b.s. anyways, including in regard to economic policies the Republicans supported or would have if they were in power at the time. Romneycare also was supported by a majority or a majority either supported it or wanted more. Some of the remainder didn't really know what was in it. Not a bad record of accomplishments, especially if DADT is actually overturned. Overall, taking into consideration the imperfections of governing, the Democrats simply did not do that bad of a job all things considered.

So, you try to be philosophical and not overcompensate. We shall see how it goes.

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* Since his election was so close, there can be various arguments made regarding why he lost. I just read one person noting that his competitor benefited on the spending front, a lot of the money coming from outside the state. This was not a rarity. The Iowa Supreme Court anti-gay recall election was greatly funded that way. This underlines the importance of some sort of campaign finance reform law or addressing it overall, such as some form of the Disclose Act among other things. Such things, not just "Obama is a loser" should be addressed. Will they be?

Wild Target

There are a few movies that looked interesting but this seemed the best bet as a lark, which was my mood at the time. It did the job, if imperfectly (e.g., a bit too many killings), the leads all fun in their own way. The pleasant trifle takes skill so kudos.

Anti-Muslim AND Unconstitutional?

The state that passed a measure against use of Sharia law in the courts seems to be asking for a 1A lawsuit. All "international law" is targeted though it must not include that which falls under federal law now. But, selective targeting of a religion still is a no no. [Accord.]

Post Mortem

And Also: I like the first two new patients on In Treatment and War Bride was a good rental about a Londoner marrying a Canadian during WWII; the lead was particularly good; London scenes also very well done. Surprising bit of full frontal nudity in a bath.

Eric Cantor was on MSNBC last night with a shit eating grin (as Keith suggested, why not?) and was full of shit. This included the "failed policies" of the last few years that led to the new Republican majority in the House. The need for fiscal responsibility really pissed me off. The f-ing Dems are the adults there as Lawrence O'Donnell noted separately. They also legislate:

Asked shortly after Obama's 2008 victory (in an election in which the Democrats' majority in the House expanded to 255 seats) what she wanted to achieve in the next two years, Pelosi identified "growing the economy, expanding healthcare, ending dependence on foreign oil and ending the war in Iraq" as her priorities. And she largely delivered.

The story of the first half of Obama's first term, let's not forget, is one of partial legislative triumph. On issue after issue, Pelosi's House produced for the president. The stimulus was larger before the Senate watered it down. Cap-and-trade made it through the House, before dying in the Senate. A stronger healthcare reform package -- one with a public insurance option -- was pushed through the House, only to be stripped down by the Senate. Ditto for Wall Street reform. And let's not forget the lower-profile legislation, on fair pay, student loan reform, cash-for-clunkers, and credit card reform, that made it through both chambers. The 111th Congress will be remembered for the way it ended, with a seismic Democratic defeat, but that doesn't change the fact that it was one of the most productive -- ever.

Some will be happy because we have divided government though (damn if this wasn't probably familiar to many) the filibuster in effect made that so repeatedly before the election of lots of traditional Republicans, including those who screwed things up a few years back, while newcomer career navy vets (Sestak), independent reformers (Feingold) and gadflies who join with the less asshole R. Paul to targeted the FED (Alan Grayson) lose out to a bunch of losers, including yet another Republican lifer.

The way we do things doesn't help. Republican regulars vote for opposition to the Democrats on Election Day. There was a few surprises in the Republican primaries, some costing them actually, but not too many. So, discontent often meant voting for old timers. That is one thing that depresses me. A balanced dissent, but that is asking too much, would kick out Republican old timers too. Again, that happened a few times -- Murkowski got a second chance it looks like -- but not much. Arkansas by the way is telling -- Blanche Lincoln was a goner but Obama et. al. felt it necessary to help her int he primary. He didn't do that for the Democrat running against independent Lincoln Chafee, did he? The value of new blood was shown in Pennsylvania, where the Sestak lost in a close race. I doubt Specter, the tired old Republican turned Democrat insider would have made it that close. So it goes.

[A bit more: Bad times and discontent led to the voter rebellion with the basically conservative, moderate at best, approach of many Democrats -- again the Senate helped here -- part of the mix. But, we don't live in the 1930s or 1960s. A President didn't just die with a legislative lion in power. There aren't bread lines in the streets. Vietnam led to tens of thousands of deaths, not thousands (Americans that is). So, structural change IS needed, but the Declaration of Independence underlines it is not quite in our blood to risk it, even if we don't like the current reality. I'll stop there. Post mortems now and in the future will be tedious. And, this has probably started to sound that way.]

These times require legislation. We got some but apparently a bad economy that the Dems did some -- if not enough (whatever that is) -- to help requires that we kick out some good people (and dweebs) and bring back into power a party who has not shown itself to be an opposition worth respecting. I realize it is hard for me to look at them with a neutral eye since I oppose what they stand for, but this conclusion did not come haphazardly. It has been years in the making. I'll try to be kind here. I reckon that there are some -- as back in 1996 -- in the new class that actually are serious about change. This includes even a few from NY, even though the Democrats as a whole did pretty well here, down to our two senators.

Under the same leadership of tools like Eric Cantor. Enjoy your mandate. Will the Dems in the Senate suddenly decide that blocking legislation passed by the House would be anti-democratic? Would be a good time for filibuster reform -- Republicans might see it as a way to ease their legislation! And, it took a couple close calls and Tea Party voters going too far for the Dems to retain the Senate. I'd gladly trade two of them for Feingold and Sestak, the two hardest blows, probably worse than Kennedy dying and being replaced by Scott Brown. Obama's seat going to a Republican didn't help. At least, Delaware is safe. And, Connecticut.

Still, there's this. One more depressing act of voters lashing out. Just one bit of bad news on the local front.

Voter discontent = voting in more assholes.

I can say more, but it's too depressing and aggravating.

"Grand Theft First Amendment" (h/t Slate)

And Also: No major voting decisions for me today except for a term limit provision I rejected. [It won.] Had to fill in ovals three times, since the first two sheets were rejected by the scanner because the paper was torn on the bottom. Also, wrote in a protest candidate for a local judicial race, since I never heard of these people.

It is a tad ironic that the current governor of California is the named plaintiff in case heard in front of the U.S. Supreme Court today concerning violent video games. Minors, particularly teens, are after all a major audience for his violent movies, many of which inspired violent video games. I don't know his opinion on the matter, but as seen in the same sex marriage case, just because a governor (or executive in general) is named in the case, s/he is not necessarily a big fan of the legislation. Right, Obama?

The matter has received a lot of attention from some of my favorite haunts (see, e.g., here and here, plus Slate, Volokh Conspiracy and surely other places). The immediate issues:

1. Does the First Amendment bar a state from restricting the sale of violent video games to minors?

2. If the First Amendment applies to violent video games that are sold to minors, and the standard of review is strict scrutiny, under Turner Broadcasting, Inc. v. F.C.C., 512 U.S. 622, 666 (1994), is the state required to demonstrate a direct causal link between violent video games and physical and psychological harm to minors before the state can prohibit the sale of violent video games to minors?

As with a law against crush videos, video games bring the Supremes into new areas, raising various questions involving the virtual world. The Supreme Court already dealt with "virtual porn," protecting virtual expression that depicts things that might be illegal if done by real actors. It struck down this attempt to go beyond obscenity. This includes a law with some protection of minors aspect, if not regarding what they themselves watch. Expanding the forbidden zone to violent video games would do something disfavored by if left open by the crush video case.

As the opening links suggest, children are exposed to violence in any number of contexts, particularly in various types of literature which are deemed "classics" by many people. Why should video games be deemed so different to warrant a prohibition? Now, it is pretty unclear that a majority will decide that they can't be regulated. One area that I think it very well overturn the lower courts is in regards to the (compelled) labeling provision. Labeling of music was a big controversy back in the day because it is inherently subjective and a sort of mark of Cain that can lead to stores not selling them. But, who knows what the majority, including Breyer and Kagan, will decide there. [After reading analysis, seems a majority is against the law as a whole.]

The case is also about standard of review. The lower court opinion suggests (as does the Julie Hilden essay) that not requiring the "direct" link would in effect be a matter of overturning precedent. If they didn't want to do that, why take the case? Reading the tea leaves is a messy proposition. Breyer likes precedent. Kennedy is a pretty strong First Amendment guy, but does think children are different. Kagan is soemthing of a question mark -- this case can serve as a way to get her on record. And, though the pickings look a bit thin, will the evidence be enough to convince a majority to uphold the law? Analysis of the orals suggest a majority wants to provide something for those who support regulation here.

The state hopes that the "variable obscenity" rule applied to minors in respect to sex will now be applied for violence. The law itself is patterned after the three part test for obscenity, minors style. This underlines the problem with the expansion of one more verboten area -- the rules there are already so vague. What does "deviant or morbid interest of minors" mean, exactly? The rules clearly aren't the same for children and adults (keeping certain non-sexual books out of a children's library is acceptable, less so for the adult section) but the lower court opinions and so forth provide good analysis on why this shouldn't save the law. The double standard leaves something to be desired, even though for good or ill it reflects our society's sentiments, but evenhanded censorship in this case shouldn't be the solution.

Still, the Court might suggest certain regulations might be legitimate here for children (the district court suggested a very narrow law against really realistic games, perhaps if was for those under 13 or again maybe some sort of labeling law). The Slate article said the law was "pretty precise," but it also potentially covers a lot of ground -- many games involve maiming and killing people, including combat type games. Will an accurate "war on terror" game be covered? The "common sense" (to quote Justice Breyer during orals) thing is to recognize that children will have many ways to access this material, including online.

I suspect the Court will allow some additional regulation, perhaps labeling, but find restriction of sale pursuant to this law overbroad. There might also be concurrences that provide different perspectives, though I would not be surprised if a united Court would collect around a relatively narrow ruling.

And, She Voted For Kerry After The 2000 ****!

Meghan McCain actually is quite likable and down to earth in Dirty Sexy Politics, though she does come off as a bit childish and shallow at times.  She sounds like a typical twenty-something who loves her dad.  But, you still sort of want a bit more from a Columbia grad.

Not Quite Right Mr. Stewart

Keith Olbermann for the moment has suspended his "Worst Person" segment in honor of Jon Stewart's sanity rally/remarks.  Good gesture and  KO is right that the two sides don't really deserve equal criticism, particularly at top.  One side at least tries to work with the other.

This Isn't Depressing At All

Rachel Maddow suggested yesterday that the Dems were focused more on legislating than simply winning the next election. Also, the average registered voter thinks Dems are better. But, the actual ones are due to pay back the Dems by kicking them out. This will encourage more Republican-like behavior. The base will then complain more. Ha ha!

Game 5: Lee & Company Made It Another Lame WS

The starting pitching for the Rangers wasn't that bad, except for Lee's first effort, but the Giants were better: including tonight. No score until the 7th, but a three run homer against Lee (goat #2?!) vs. a solo did the job there. Feliz came in early -- finally. Too late.

Scalia Tries To Diminish Religion Again

Justice Scalia said various things that might be disputed when talking to the St. Thomas More Society, but I surely disagree in respect to one's religion (though "Catholic" can mean a lot of things) having no effect on judging. Even if they don't want to face up to it. More here.