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

Friday, December 31, 2010

Pinstripe Bowl Decided by Wrong Stripes

I only saw a bit of the game, not the part where Syracuse started to score, but an exciting finish in Yankee Stadium's new bowl game ended up resting on a flag for saluting the crowd. The possible tie two pointer suddenly field goal range, it failed. Come on. Lame.


I received an Amazon Kindle for Christmas and tried it out. I did not get the more expensive version (3G) but thought that free WiFi would be available (if not at home in my area). I went somewhere where free connections are apparently available, but it did not load. I will try again elsewhere. No matter. I downloaded some stuff directly from my computer and connection to the Web is not that important given the purpose of the device.

I also downloaded a copy of the instruction manual, since it is easier to move through it online than via a Kindle device, and don't know all the bells and whistles yet. But, one thing that is annoying is that there are only a limited number of ways to alter the size of the image. I don't know why they don't (cf. the simple Paint program, where I can carefully size wallpaper and such) allow you to do it by percentages. This would be helpful since though the two books I downloaded are easy enough to look at (though we are talking a small screen of text), not all the .pdf files worked out as well. A 125% view, e.g., might have worked better.

All the same, it was a useful way to download context for view away from the computer without using a laptop (though my very first computer was one, I'm not a big fan of laptops, at least finding the cursor annoying). It is in effect a mini-laptop of sorts and Kindle books are cheaper. The dictionary and search functions are useful in that respect, but there is something to a hard copy of a book (also, a book is less valuable than a Kindle, so can get wet, drop etc. without as much hardship). Also, the search function doesn't seem to search by page. A .pdf file allows you go "go to" a page as do other documents. OTOH, the first book I downloaded allowed quick back and forth from the page to the end note.

Film: Slowly -- last year it was Broadband -- I'm entering the 21st Century. A quick word as to film. This year also was my first with Netflix, though I only had it a couple months, waiting until I built up some new releases before using it again. I'm due to re-start my account next month or so. Overall, however, 2010 was not a great year in my eyes film-wise (useful to qualify that, given events). It might have been, especially by the end, better than 2009. Some, including True Grit, I have not yet seen. Not many more that will be seen, though, probably.

The year started with the disappointing Darwin flick, well expected in some parts, Creation. Agora also was disappointing, though it did somewhat of a better job highlighting an important era and turning point in the area of knowledge. Date Night was pleasant, if one wasn't too fussy about it. Cairo Time started some late year worthwhile viewing including Tangled, The King's Speech (my Academy Award favorite thus far) and Fair Game (which should get at least one nomination, perhaps for Sean Penn, maybe more likely for Naomi Watts). I again did not see some much talked about films, such as Social Network.

May '11 be a better one.

Huh. Thought It Was All Obvious and/or Gossip

WikiLeaks has brought to light a series of disturbing insinuations and startling truths in the last year, some earth-shattering, others simply confirmations of our darkest suspicions about the way the world works. 

-- CBS News Item

Thursday, December 30, 2010

45 Going on 46?

The Sound of Music was on last weekend and I'm a fan, though the Baroness is another thankless role akin to "the other woman" in The Parent Trap.  One of the actual Von Trapps just died, a chance to note that the actual story as usual is rather different from the movie.

Grammar Girl and Nutrition Diva

Wednesday, December 29, 2010

Quickies: Abortion Doc and Childish Reply to Criticism

I concur that this is a great segment on the complex personal stories behind abortion decisions. It's easy to get loss in the details, but I think GG is great on the Wired thing, and find this emotional laden reply ["obsessively trolling" etc.] f-ing childish. More b.s. cited.

Misleading Framing? Maybe.

This is to replace a post about the call to the Eagles owner not being "about" Vick since there appears to be some debate on the point. So say that. I still say a lot who harmed women got off lighter than Vick.

Too Many Al Qaida Cells!

I recently became a fan of Sue Thomas: F.B.Eye, which is a syndicated show about a deaf FBI agent. After a few weeks, it appears they overdid it with this plot line. Still, even then the characters, plot details and guest stars are well done. Can't have everything!

TNF: Joe Webb as the Viks Future?

There were some lousy match-ups for night football games of late, but for the second time in a row "SNF" had a surprise in store. It might have hurt the Giants chances, but I really don't care. The Giants dug their grave, if it be one. As to Obama/Vick, see here (w/comments).

Tuesday, December 28, 2010


And Also: The nomination of Justice Sotomayor, among other things, underlines those who make Obama simply some big disappointment, not worth our time, are full of themselves.

[This discussion is in response to this book review.]

Since most abortions occur early in pregnancy, it is at least curious to me (if not troubling) that the generic term "fetus" is used when discussing the matter, including by those who support a broad right to choose whether or not to have an abortion.  But, though the matter often arises in that context, the below discussion suggests it is not limited to that area.

Medically, it appears that the norm is to define the word to mean development after the eighth week after fertilization. Before this, in the time in which most abortions and many natural miscarriages occur, is the embryonic stage. Colloquially, this also is different from "the fetal" stage. For instance, some don't tell others about a pregnancy before late in the first trimester. Many who have mixed views about abortion think it can be acceptable for various reasons at this stage, including as a religious and moral matter. The pregnant person also often doesn't look the part this early, nor treated as such by others, though they do feel the part in various respects.

By treating very early periods in the pregnancy as involving a "fetus," the conversation is altered. A visual picture emerges with that term, particularly of a fetus in a later stage that looks much like a newborn baby. There are various stages of pregnancy. "The fetus" is generally in at least the second stage [maybe third, if one thinks pregnancy begins at conception] and an open-ended use of the term is questionable.

It is therefore troubling that the "unborn" and "fetus" is used so interchangeably, even among those who should know better.

Republicans = Fiscally Irresponsible

The key is that deficits created by tax cuts are permissible but those created by spending hikes are not.
Congressional Republicans aren't serious people.

No, Sick Giants Teams Don't Count

Cannabiz provides an interesting but somewhat thin at spots (e.g., no mention of Marinol) account of medicinal marijuana. Bottom line, I wanted a bit more, though it does provide an honest account of some problems in a clearly positive leaning account. Recommended/flawed.

Monday, December 27, 2010

Path For Certain Legal and Religious Minds

And, then there's Souter's speech [video version].

Sunday, December 26, 2010

Week 16: Jets In

Carolina is bad and looked it.  Arizona is pretty bad, but Dallas played worse, down to a missed extra point deciding the game.  The Jets couldn't stop Chicago enough but got in the playoffs shortly after via the Redskins' win.  A few other teams got in or were eliminated.

How Do You Know

I'm not Jewish, but dinner and Chinese is the family thing for Christmas. I'm with those like this reviewer who appreciated this film as having messy charm though Nicolson had little really to do and it felt underwritten as a whole.  Flawed but worth watching.

Friday, December 24, 2010

Joseph in the Gospels

[The below is a reply to this article.  It is a slightly edited fray reply. Joseph is not mentioned in the epistles; Mary indirectly so, if in an interesting way.]

Joseph must have been a good provider, too. 

We don't know when he died. Mary could have been cared for in various ways, including by her original family or stepchildren, particularly if Joseph died before Jesus could take care of her. And, Jesus seemed to play a large role there, given in John he has the beloved disciple take her as a surrogate mother and vice versa. The gospels overall mostly take place in Jesus' adulthood, and it is unsurprising that even if Joseph was a young man, that Mary (still likely years younger) would outlive him. Mary is rarely heard of herself. 

Joseph is given no lines to speak in any of the Gospel

Joseph is important even without lines since two gospels provide genealogies that go through his line. Luke does have an interesting comment (RSV) about Jesus "being the son (as was supposed) of Joseph," but still the line goes through him. He is spoke of by others as "Joseph's son" in Luke and John. Mark however calls him "Mary's son," which is interesting given he is the earliest source; Matthew cites his job but not his name. This might imply Joseph wasn't gone from the scene that long though many it is just that his name lingered.  Still, Luke has Joseph around when Jesus is twelve. 

Joseph plays a significant role in Matthew birth narrative, in fact, things are viewed through his perspective without any lines [reference to article] for Mary either.  Matthew has Joseph the one who "called his name Jesus," recognizing his role from the start as told to him in a dream. Matthew in fact speaks of multiple such dreams.  There is a tendency to combine gospel narratives, so Matthew and Luke are often combined when the narrative is told, but each gospel in fact has its own story to tell with its own special nuances.  Joseph's leading role therefore is telling.

Matthew also at the very least suggests that they eventually had sex -- he "knew her not until she had borne a son."*  Given what usually occurs in marriage and later reference to siblings (though some argue they are step-siblings, down to divining the meaning of the word usage), without saying anything is proven one way or the other, the average person without preconceived notions would think that implies only a small window of abstinence.  The immediate concern was a virgin birth, not a life of being a virgin.  That concern came later.  

Luke is much more Mary focused for particular reasons, it might be supposed. Mary is told to name him Jesus. No dream is referenced to inform Joseph that all is all right. Joseph isn't instructed by God via a dream -- the trip to Bethlehem is by governmental decree and no trip to Egypt afterward is referenced. The account of him at twelve is the only reference that speaks of Joseph's thoughts directly I can see ("they did not understand") but still reference is made that suggests Mary later told the story (she kept things in her heart ... for later telling?).

Joseph is clearly a minor character but in Matthew in particular had a special role. As a whole, Jesus was recognized as "Joseph's son" and Luke has him still around when Jesus is twelve.  Given that, Joseph clearly had a significant role in his upbringing and probably in the type of person he turned out to be.  Clearly, for various reasons, Mary would play a bigger role, but Joseph too deserves to be somewhere in the picture.  Probably (and this is not just a name thing!) a bit more than he is now.

Merry Christmas!  Or something.


* If not, could they truly have been "married" at all?

Thursday, December 23, 2010

Dem Control Winds Down With More Victories

Sen. Kirsten Gillibrand. Looking a bit too thin there. Chris Hayes did a great job filling in for Keith Olbermann. Some good things happened in D.C. recently though even the patently obviously wasn't easy. Next year, it will be more a downer. Lot of reminding will be necessary.

Another Nominee For OLC Chief?

The choice seems to have various liberal bona fides, but if they are concerned about experience, there's always Dawn Johnsen.

Wednesday, December 22, 2010

Tara Samuel

Actually somewhat based on a true story (the original had a smaller role), Sue Thomas: F.B.Eye with a good ensemble cast is my latest find. Plots are mixed, but impressive overall. And, TS is my fav in the supporting cast. "The Actor" was a very good episode.

Tuesday, December 21, 2010


Viks played a home game outside again, so the old man had to start, though it didn't work out that well. Legal nerds (guilty) should appreciate a blog on that new field of law, Law and the Multiverse: Superheroes, supervillains, and the law. Maddow mixed on Wikileaks.

Monday, December 20, 2010

State Recognization of Racial Appearance

And Also: Amusing SNL bit on Assange; see also, "why Julian Assange is a journalist." I added a comment there as well.

[to expand on something cited a few days back; originally posted on Slate fray]

A lower court opinion involving illegal transporting aliens in Massachusetts suggests why Arizona SB1070 type laws are controversial: current federal (including constitutional) law allows racial appearance to be judged in certain instances, and bans on "racial profiling" often amounts to "illegitimate racial profiling," not racial profiling across the board. Thus, stringent laws, including those that might not properly take into consideration the needs of innocent parties, are noteworthy. To quote the ruling:
The thrust of Ramos's argument is that, on the facts stated above, there was no reasonable suspicion justifying the "seizure," the reference to Middle Eastern appearance could not supply the missing ingredient, and any consideration of the fact that Ramos appeared to be "Middle Eastern" was impermissible and tainted the district court's conclusion. We disagree.
Such appearance can be judged as a matter of "totality of the circumstances," as part of an overall judgment for Fourth Amendment purposes. [Race can also be taken into account for affirmative action purposes, though some seem to give more concern to that sort of thing.] Thus, it might be the "tipping point" to stopping a certain person or choosing to 'seize' a certain vehicle. Per a 1970s U.S. Supreme Court ruling concerning border control stops:
even if it be assumed that such referrals are made largely on the basis of apparent Mexican ancestry, 16 we perceive no constitutional violation
This should be done carefully, and generally arises in certain special circumstances [but not merely for international flights or border areas alone, the latter involving much more than merely the border itself], but it is again not presumptively barred. This issue has been addressed by experts in the field as well. It underlines the sensitive nature of immigration policy and border control and the federal government has the discretion to take special care to deal with the negative implications of the power the courts (to some extent, probably wrongly) give in this area.

The fact the resulting policy might trouble some is not too surprising, since areas such as these have no simple, painless answers. But, federal discretion in the area does provide the federal government constitutional discretion to set one overriding policy here.*

The specific Supreme Court case discussed by the Slate article concerns what policy the law at issue set in place. Some discussion has been general in scope, which is fine, but just because the federal government can do certain things, it doesn't mean they did. This case specifically is about what a single law says and allows, not federal policy writ large.

* Sensitive constitutional concerns that do not compel but do counsel a certain policy applies to what happened over the weekend. Many think DADT is unconstitutional. It also is bad policy that touches upon constitutional concerns of inequality and so forth, even if it does not actually violate the Constitution.

It is like a policy regarding fair trials. Fair trials are important enough that merely strictly following what is required (if the exact nature of what that means is even possible to determine) is not a good policy. Like a fence around a home, better safe than sorry, since the underlining matter is so important.

Result Expected, Means Not Quite

Packers made it a game vs. the Pats with a back-up QB, after doing nothing with him vs. Detroit.  But, they still gave one too many gifts (including a key special teams collapse), ending up with a hard luck loss.  Will the Vikings be as bad as expected?

Sunday, December 19, 2010

Jets Hang On

Actual offense and late defense (including a safety) clinched it.

C-SPAN Kagan Interview

On now.  Zzzzzzzz.   Really, nice to put a human face on the Supreme Court, but she is such a boring choice.  Better than a bad more interesting choice, but still, this is the person replacing Stevens?

Week 15

[expletive deleted]

The Fight Continues

My point of view is that this is good, but it's still not good enough. My bar is high; nothing short of full equality is good enough.

- Zack Ford (accord: Lt. Dan Choi)
As discussed, even on this very issue, there are things to be done. BTW, Lieberman was nice here and all, but let's not forget, he is still a tool.  Just not a total one.  That's McCain.

Saturday, December 18, 2010

Blake Edwards

Not really a fan of the Pink Panther movies (love the cartoons), but do like many of his movies, from Operation Petticoat to Victor/Victoria, some better than others.  Blind Date, e.g., is a mild amusement.

Race As Legitimate Factor

It has been noted in the past, but this ruling underlines that the "we won't profile" line in the SB1070 case (Arizona) only takes you so far. The government is allowed to take appearance, including race and nationality, into consideration for Fourth Amendment purposes.

Cloture Watch: DREAM Act (No)/DADT (Yes)

A previously bi-partisan (for it, before against it?) bill failed to obtain cloture with the help of five Democrats (deciding votes). This sort of thing helped Harry Reid retain his job. This is what a minority blocked the majority from voting on:
Most immediately, the measure would have helped grant legal status to hundreds of thousands of illegal immigrant students and recent graduates whose lives are severely restricted because they are illegal residents, though many have lived in the United States for nearly their entire lives.
A real milestone of equality and common sense did occur with the U.S. Senate voting 63-33 for cloture (will Lucy truly leave the football in place for the final vote? yes, Virginia, it seems so) on DADT repeal. The House, as it did repeatedly, was a significant factor here in twice voted for repeal, most recently as a stand alone bill. In the past, entry of women and blacks into the military (and integration of both) was a key milestone of true equality.

The votes underline the importance of the Democrats in control.

Update: The final vote for passage was 65-31, which is typical: once cloture is provided, often more people vote for it. The issue also was one my junior senator has come out strongly on:

Anyway, there is a ways to go before true equality is in place:
What happens next: Obama has promised to sign the bill next week, making repeal a true legal reality. Then the Pentagon, the Joint Chiefs of Staff and Obama must work out an implementation plan and officially certify that the military is ready to allow its gay and lesbian servicemembers to come out of the closet. Sixty days after that, DADT is "officially" repealed. Such is the language of the bill the Senate passed today and the House passed earlier in the week.
And, then, to other things, including DOMA!

Holiday Display Cases

[slightly edited form of a post from last year]

The above is a sign noted in a news article from years back. I have had something of a Xmas tradition (other than helping putting up the family tree or buying overpriced stuff in catalogs or wrapping something on Xmas eve) -- reading a Supreme Court ruling on some religious display dispute, now with the added benefit of being able to listen to audio at Oyez.org. Hey, we each have our little traditions.

An opinion by Justice Stevens did a good job discussing why this matters in a fashion. Such disputes are sort of like the Tiger Woods mess -- somewhat annoying, not life threatening but still relevant and addressing important matters. The case cited is particularly notable in that the locality tried to handle the situation by avoiding controversy, but Rehnquist Court "religious speech is mostly like regular speech" doctrine (one area where conservatives have successfully used the courts to promote their views, see also anti-affirmative action battles) stopped them. This makes the case somewhat different from some locality being challenged for sponsoring a display or allowing it on their land.

I find the doctrine cited stupid -- religious speech is different because the First Amendment specifically treats religion differently. Thus, as Stevens notes, if a display can be reasonably understood to be sponsored by the government as here, it can (and should) be avoided. Likewise, neutral spending that directly funds religious institutions can be a problem. The doctrine in effect belittles the value of religion by treating it like any other sort of viewpoint, which is exactly what the First Amendment does not do. The result generally is a watered down sort of establishment, which can lead to an ironic result:
The creche has been relegated to the role of a neutral harbinger of the holiday season, useful for commercial purposes but devoid of any inherent meaning and incapable of enhancing the religious tenor of a display of which it is an integral part. The city has its victory -- but it is a Pyrrhic one indeed.

The respect for religious holidays tend to be selective. "Majority rules" is not the proper test. People are upset, they want to sing their Christmas carols [all carols might not be a problem or holiday songs] in school and have their Nativity plays. But, they can -- outside of public schools, which are not the place for selective use of religion. The push for true religious diversity is both often a fool's errand given the breadth of options (even if President Obama was right on the Golden Rule) and likely failure of a decent job in truly honoring religious beliefs in the eyes of many. Weak tea like "In God We Trust," which is not free from problem anyway, is how useful?

In practice, to be honest, weak tea is a sort of vaccine that provides a weak form of what in large doses can really hurt you and provide a sort of immunity from too much harm. But, equally honest, the result is also that some people are benefited more than others. Certain beliefs deemed more acceptable and the weak "ceremonial deism" also somewhat ironically also making some more strong beliefs a problem as well. If "In God We Trust" is the official line, those who insist on more forceful exhortations are as much troublemakers in a fashion than the loud mouth atheist.

Display cases remind us about such issues as well as the value of not getting the government too involved with religious symbols and messages. Individual government agents might express their own views, including President Obama citing his views as to what good religious belief promotes. Religion is part of whom we are and influences political positions. But, when the government as a whole is involved, strict neutrality should be our guide. Christmas clearly has secular components, its very timing arising from pagan practices, but its religious aspects are basically none of the government's business (again, collectively speaking). As Stevens noted:
The Establishment Clause should be construed to create a strong presumption against the installation of unattended religious symbols on public property.
The "attended" part reflects the difference between a speech and freestanding display, religious statement and so forth. Lest we forget, the holidays do have various meanings, though somewhat selectively honored, which I do care more about than such questions. All the same, the cases do suggest the importance of such things, the things that matter are personal, the government having a duty to be neutral.

[Notable event: During one display case, Justice Thomas actually asked questions, admittedly, before not doing so truly became his thing. But, it underlines how his p.o.v. -- no snark -- can be worthwhile, and how asking questions can be useful to add to the conversation.]

Friday, December 17, 2010

Knew It

It amuses me to catch someone like this on new things. I knew her from Due South and now caught her guest starring on Doc.

The Whites of Their Eyes: The Tea Party’s Revolution and The Battle over American History

Jill Lepore was on Rachel Maddow some weeks back to put the Tea Party's revisionist view of history in context. This short book does that too, while providing a quick version of the actual too. A bit thin, but still interesting, including this tidbit. Good post-election reading.

Thursday, December 16, 2010

Kagan Matters Watch

Kagan's non-involvement led to a 4-4 tie recently and this suggests the matter is of some significance. Interview forthcoming.

Good Week For Comics

See here for more ... good plot lines!

Wednesday, December 15, 2010

Justice Brennan: Liberal Champion

This new biography, an "official biography" of sorts, is something of a disappointment. It is not bad but often doesn't really tell me more (sometimes less) than other works about the Court and its justices in recent years, especially given its size. Not very deep.

Health Care Reform Act: Another Ruling

The Slate fray and others are again discussing the Patient Protection and Affordable Care Act now that a single federal district judge found the "individual responsibility requirement" (aka mandate; see section 1501, which also discusses the commerce power hook).  Lots of other discussion too.  Back in September 2009, I was involved in an online debate over the overall topic, as I covered earlier in the year.  In part:
Although Article I gives the Congress the power to legislate for the common good, I would never argue that this means that health care is a constitutional right.

On the other hand, anyone who argues that health care is not a Human right, is saying that it is permissible to leave an uninsured hit and run victim bleeding on the side of the road.

To review: Constitutional right? No. Human right? You betcha.

I responded:
Art. I provides a means for Congress to legislate in the area. It is not necessarily the place to look to determine if health care is a constitutional right as such.

If it is a "human right," and we are all humans, it would seem to be a right we all have that is not enumerated as such -- a "right" being something that has remedies, and government is in place to better secure them, at times obligating them to help do this. This might make it a 9A right. I'd add that in many cases, the average citizen has no legal obligation to help such a victim.

I also would think that it would be hard to truly uphold equal citizenship if health care is provided unequally, or that a certain select group is deprived of it. This would make it an equal protection matter, particularly since the government is already involved in health care. Equality would also affect non-citizens, since they too are protected by the Constitution in various respects. Since Congress has a particular duty regulate interstate commerce, inequities in national health care policy would be its logical bailiwick. Similarly, federal tax policy at times tries to promote equality.

Other constitutional hooks can be considered.

See here. Someone else was resistant to the idea of framing it as a "constitutional right," and some refused to accept that we all had some sort of constitutional "right" to such protection. A "right" doesn't mean the best care is secured, any more than a right to a lawyer means you have some "dream team." It doesn't mean that courts are involved in all aspects of the question; a possible comparison is how separation of powers is a constitutional matter that often is left to political branches to be decided. It is no less of constitutional dimension.

As I noted, perhaps strategically the first part is not the way to go. All the same, many agree with Nancy Pelosi when she speaks of a "right" to health insurance, one Congress clearly has the authority to secure in various ways. Bottom line, if it is so much a "human right" or basic matter of fairness, chances are there are ways for Congress to handle the situation. And, the word has a certain cachet that underlines the nature of the issue:
The word "right" is there already. I don't think it's mandatory to use it, but it doesn't fudge the issue since people basically use "right" here to mean a certain protection that state provides as of right, a certain special obligation that is different from good roads or other nice things that are not as essential as those basic things necessary for the general welfare.

[I continued.]  Though lots of verbiage is provided, the idea that this all is somehow unconstitutional really is not something I take seriously. Not that it and other stuff (like "death panels" aka helping people make end of life decisions, not -- as the case in Arizona today -- cutting off transplant funding for budgetary reasons) is not repeatedly piled on, like some old fashioned manure dealer. Like Republicans who once claimed they agreed with the Democrats on over 80% of the bill, but like greedy bastards, do all they can to block supermajority rule. Can't allow Congress "to ram" something through ... only has been over a year now, decades in the long run. To block something that will help people while reducing the deficit. Something the other gang too often had been 0 for 2 in promoting.

I added: The interested might find this "property right to medical care" argument intriguing. Similarly, there is an argument that once the state gets involved in providing a benefit, it must do so equally, or it violates the Constitution. See here (also n14).

Anyway, two things.  The ruling here is not convincing.  The judge's connections to Republican causes has received some concern, but along with cries of it being a "partisan" ruling, I rather not focus on that.  Don't think it would take you that far.  The ruling does more to state the arguments on both sides than to actually explain why the mandate is unconstitutional.   The "activity" bit is lame (is there some "activity" requirement to enumerated powers?  how is making health choices an "inactivity")  while the regulation not tax bit is at best somewhat weak tea and involves some degree of mind reading.  

I do like to focus on the Commerce Clause (and Necessary and Proper) "hook," since that is really the ultimate thing being regulated: a national commercial market.   The mandate and tax incentive is a tool.   And, it is really a "mandate," since if you are penalized for not doing something, what is it after all?  Tax incentives are allowed though.   The "penalty" is formulated as a tax policy, income tax policy actually.  But, if some one who has no "income" is covered or if it is some other "tax," it's allowed either way.  And, the above suggests some more creative ways. 

Anyway, second, it is not surprising that the not surprising fact that some judge found a small portion of the law [which he held was severable from all the other provisions and since it was not immediately in place, a mere declaratory judgment was acceptable] received a lot of feedback and coverage.  More so than the other judges who upheld the law.  He's still wrong though, will most likely be overturned and the above holds true either way.

Tuesday, December 14, 2010

The Phillies? Sigh

The Yanks have a need so overpaying for Lee this time would be not too different than the Mets with Santana. And, it's nice he signed for a bit less money for comfort level, but the Phillies still are spending a lot and competitive balance-wise, this sucks. And, I am a Mets fan.

Monday, December 13, 2010

NYG Win When They Have To

This time a day late and against someone other than Favre, who is human after all. Lack of a MN offense, an end of the Half TD (7-3 until then) to make things comfortable and another to clinch the deal (showing the NYJ the value of a run game) did the job.

Republicans = Fiscally Irresponsible

Republicans do not care about deficits. They care about tax cuts. Arguably -- and you have to be generous on this front -- they care about the size of government. But not deficits. The only pressure for budget balancing comes from the middle of the Democratic party.
Rs claim to and are believed.

Smithsonian Museum Removes An LGBT Art Exhibit After GOP Threatens To Defund It

Last week, Smithsonian Institution officials in Washington removed an artwork from an exhibition at the National Portrait Gallery. The critically acclaimed show's subject is a century of gay identity in art.
This act of censorship was a result of bigotry with the assist of the likes of Boehner and Cantor. As the article notes:
Coming after months of news reports of bullying and shocking teenage suicides, and in the week of a fresh Pentagon study supportive of gays and lesbians serving openly in the armed services, the context of the action speaks volumes.
The problem here includes the usual matter of critics singling out small portions of the work that has some particular controversial aspect, particularly one of a sexual nature. Given that art is known sometimes to be controversial, and adult fare is part of the deal, there is always going to be something to excite some people. I see it as akin to obscenity and ratings (I left some comments) -- missing the forest for single trees. Here anti-gay motivations and selective protection of religion ("sacrilegious") are tossed in.*

As with the Library of Congress and Wikileaks, this is an example of the continual pressure and censorship activities of our times. It is a preview of what is to come when top Republican members of Congress blatantly threaten arts funding based on differences of content. As noted above, it is also a piece (see DADT) of their anti-gay bigotry. Freedom of expression along with freedom in general requires support. It is not merely the ability to do things in private (itself not always possible) when you are able to do so.

And, when something like this happens, it's a major red flag.


* Religion often is selectively used to censor and inhibit what should be protected conduct, "blasphemy" (also "profanity" -- what is being profaned?) or "sacrilegious" or "immoral" often the epithets used. Obscenity laws were often historically based on such things. One of many problems here is that the respect for religion is selective as when one person told me "monotheistic" religions didn't believe in same sex marriage, even after repeatedly being told that some very well do. Free speech etc. is also involved.

Sunday, December 12, 2010

New York Football

Buffalo won, snow delayed the Giants until Monday night (neutral field) though Dallas didn't help them with a close loss to the Eagles and the Jets had another pathetic offensive loss / low scoring affair. Torture to watch for Jets fans. A couple other dogs had their day.

A day of infamy

A good collection on why Bush v. Gore (ten years ago) is a "day of infamy," maybe more so than one that really wasn't given the factual background. Up there on my personal "key moments" c.d.

Saturday, December 11, 2010

"our ideas about God are shaped by culture"

At least two people I interacted with over at the Slate fray made religious arguments in the midst of legal discussions, arguments that were shoddy even if I accepted the basic premises. But, they do suggest the last sentence of this review is pretty clearly true.

Friday, December 10, 2010

Read the Whole Thing (You too Obama)

Incidentally: how, exactly, did we get to the point where Democrats must plead with Republicans to accept lower corporate taxes?

-- Paul Krugman

Fair Game

I recently tried to re-read Kayla William’s Love My Rifle More Than You:, which I liked the first time. Didn't get into the second time -- the 'tude of the author annoyed me this time, but don't really agree with this review either. That is an unfair simplification of her substantive analysis of military life and life during wartime Iraq. The author later commented about a U.S. solider who she knew, one who committed suicide in part probably because of her negative response to exposure to torture.

Torture is just one thing we have to be ashamed of as a country in the last decade. The continual blockage by Republicans (and now a spare Democrat, on specious grounds) to DADT repeal, even though everyone except them (even many of their family members aren't on board -- see McCain's wife and daughter) thinks it is the right and pragmatic thing to do. The President, top military officials, the troops themselves, the House, 57 or so votes in the Senate (more if faux procedural concerns are taken seriously), the American people, justice and basic morality ... well, heck with all that. Maybe, we can blame this on the '10 elections, like they apparently show the people want to extend tax cuts to millionaires. Increasing the debt ... the Tea Party way.

There were blatant moments where I basically stopped taking the President, Republicans and their enablers seriously, one being the proposal to amend the Constitution to block same sex marriage rights. [A nod to those like Eugene Volokh who thought it a serious question, if you know, it was limited to full faith and credit issues ... also, torture? not really something I want to think about. Not my thing. Need to spend more time on gun rights and age of consent laws]. But, the Valerie Plame matter is up there. Someone who was out there actually doing something about WMDs and her husband who back in the day did something about Saddam Hussein without bullshitting the American public into war over it.

Not that the press came off totally well in that affair as with the WMDs issue as a whole. In fact, the first film on the affair (to the displeasure of some) was a fictional one that focused more on a Judith Miller type. Didn't see it. It sounded like it dwelt on serious First Amendment issues though given how things went in real life, the portrayals of the reporter (much softer here than the original, down to the casting of Kate Beckinsale) and agent (the accounts suggest a more bitchy character than the socialite vibes of Plame) would probably be hard for me to put aside.

This one is basically VP's story, one deemed "essentially accurate" by real reporters contra to their paper's op-ed smear job. The reporters note that the film does give her more control than real life apparently warranted, but dramatic license usually does things like that, so singling out any one film on that level is silly. The bit about the Iraqi scientist is unclear though. But, I can't really judge how much blowing her cover meant to the agency. They denied to meant that much, but would they actually fully admit that one way or another? The fact some unnamed source told the reporters so doesn't really convince me one way or the other.

[The movie cites both of the Wilsons' books as source material; I reviewed her own here. Suffice to say there is a lot more than can be said here or in the movie, but the source material does underline this is not just Valerie Plame's story. Joseph Wilson also is a major player, various scenes about him alone.]

Dramatic license about such things as if Valerie Wilson really seriously worried about divorce or the like is even less problematic. The "affair" put serious pressures on their marriage. That's the point and it was portrayed well. Below even suggests that "there needs to be a hero and a villain" shouldn't be taken as if the film is simplistic. Rove actually has only a small role here, the original much longer script perhaps more anti-Bush in that respect (Rove is an easy villain; Libby comes off as more complicated, if deep down, maybe he isn't). Joseph Wilson (Sean Penn excellent, down to the body type, which is much different than the more skinny looking Mayor Milk ... another Oscar nomination is quite possible) also comes off as flawed -- letting principle overwhelm discretion at times. Valerie might come off a bit too heroic, though Naomi Watts is quite good. A bit more nuance there might be warranted. As the reporters note, she did eventually take that Vanity Fair interview.

As with other things, the matter is so wrong that even a reduced level of outrage is enough to make it an archetypal symbol of how the Bush Administration operated. Mr. Libby (I will avoid the stupid nickname) is actually portrayed with a somewhat light touch, but the insidious nature of lack of doubt (if there is 1% risk, can we take the chance? of what? killing hundreds of thousands of Iraqis?) and "changing the story" by releasing classified information (declassified for that purpose) and smearing the Wilsons comes off probably even worse given that. And, the film underlines that WMDs was and continues to be an important issue.

Seriously addressing the problem, as shown in a documentary that Plame herself took part in, is too important to use those doing their part as playthings for power politics. They should not be "fair game" and the fact that saying as much remains a partisan issue is a major problem. I don't agree with Sandy Levinson totally but structure is a problem. As is anything that lets this go on.

[With Wikileaks and all, this discussion by me is relevant on why the Plame affair is a problem. It isn't because any leak is a problem. Thanks to the person who accessed it.

One more thing. "Joe Wilson" had a great point in the film when he asked an audience how many know the "16 words" that helped us go to war -- few -- then, how many knew his wife's name -- many. Again, change the frame, the frame becomes the story, not what is really important or even worth knowing. I might have said this but it's important enough to repeat. And, the clarity of the scene underlines why the film is well worth seeing.]

Wednesday, December 08, 2010

A blocked field goal put in perspective

“We have to say it. Remember, this is just a football game. No matter who wins or loses. An unspeakable tragedy confirmed to us by ABC News in New York City. John Lennon, outside of his apartment building on the West Side of New York City, the most famous, perhaps of all of the Beatles, shot twice in the back, rushed to Roosevelt Hospital, dead on arrival. Hard to go back to the game after that news flash, which in duty bound, we had to take.”

-- Howard Cosell

That Deal

Much can and was said about the tentative deal over tax cuts and such. KO and RM were rather negative. Even if one is more sedate, Ezra Klein and Paul Krugman suggest reasons to be upset and depressed, even without KO's feelings of betrayal. Past actions too.

Tuesday, December 07, 2010

RIP Elizabeth Edwards

I saw her once at a book event (to cite a touch with greatness) and overall think she was a much more appealing person than her husband turned out to be. She lived a good life and I wish the best for her family. She continues to be a symbol of/for others like her.

Jets Creamed

They were likely to lose, but not THAT badly. The Pats were beaten by the Browns, and they managed it. So, wipe the tire marks off, and move on. Was that Sam Seder filling in for Keith? Good to see ya. Depressing lead story though. OTOH, what isn't these days in D.C.?

Monday, December 06, 2010

Prop 8 Orals

The Ninth Circuit panel heard oral arguments for the Prop 8 appeal (standing and merits) today. Not too exciting, especially the first part, and no preening for the cameras or whatever. Don't see why appeals can't be televised. Selective reporting will occur either way.

Week 13

NYG made Redskins look bad while Buffalo was whipped by the back-up of NY's next opponent. Jets will have a challenge tonight. More Monday magic? Tampa AGAIN lost against a good team. Colts and Chargers lost. Elizabeth Edwards is not doing well.

Sunday, December 05, 2010

Explicit and Authentic Acts: Amending the U.S. Constitution, 1776-1995

David Kyvig's book was very good and comprehensive, though a few errors (including John Kerry's state!) were annoying. Over at Slate fray, I and others point to the inanity of the "Repeal Amendment" that some actually take seriously. Better empty symbolism, please.

TV Quickies

The Most Wonderful Time of the Year and A Season For Miracles are two of my favorites in the "ABC Family Christmas film" genre. And, then there's the latest Brandin Rackley, Twilight Vamps. A bit disappointed in my girl here, but the others, especially Beverly Lynne (nice fyi here), are great. Real sense of humor here. Seriously.

Saturday, December 04, 2010


NYT: "Senate Rejects Obama’s Tax Plan, Setting Stage for Deal." The AP actually honestly labeled it as the "Republicans" but also "Bill blocked to let upper-income tax cuts expire." The bill actually focused on extending certain tax cuts and "upper" here means over 250K.


Just heard the President say that we need to renew the middle class tax cut (actually a cut on 250K or less of income from all parties) and to do so will require "compromise." The parenthetical is a compromise. Will the "cure" be worse than the disease in the end?

Supreme Court Watch

The Supreme Court was back this week hearing oral arguments, the biggest (and most controversial) one involving long term litigation involving health rights of California prisons. Probably the win for good audio. A more mundane case involved an "argument regarding whether the Eleventh Amendment prohibits an independent state agency from suing state officials in federal court for an injunction to remedy a violation of federal law." Another involved the breadth of freedom of information requests, where both sides won in part below.

The Supreme Court provides audio (in different formats) at the end of the week of the oral argument on its website along with the transcript of the case (which is released separately usually the same day as the argument) as shown in that last link. It is a major development though few know about it and for all the delay, seems to have came off without a hitch. [Any problems weren't reported at Scotusblog, for instance.] It would be helpful that the audio page had a summary of the case instead as simply a case label. I don't know why such a logical thing isn't there now.

The state immunity case seemed remarkably civil, the justice (even Scalia) more than once complimenting the "good" arguments made though the state lawyer and the assistant solicitor general (who supported the independent state agency) had a bit of trouble at times from the justices. The latter is Ginger Anders ("Ginger" isn't exactly a serious sounding name), who "performed as a soloist at the Park Avenue Chamber Symphony in New York." She also was involved in a failed attempt to limit lethal injection protocols. One can see why the Obama Administration is on board:
This case arises from VOPA’s attempts to investigate two deaths and one injury in facilities operated by the Virginia Department of Mental Health, Mental Retardation, and Substance Abuse Services. As part of its investigations, VOPA repeatedly requested certain records related to the deaths and injury, but state officials refused to provide them.
The law at issue ties federal funds with a need for independence in the agency involved in controlling the use of the funds, including the power to sue. This basically seems to be the issue. And, the state's problem is in part that even though they consented (which Scalia flagged) that this is a Eleventh Amendment problem, since here a state agency was suing its own state in federal court. The oral argument didn't really address another issue, that is, the federal law can be upheld by a means other than used here. Breyer tossed one of his usual law professor questions, getting a laugh:
Suppose you have a State which loves litigation. 48 percent of the population are retired lawyers. Nothing pleases them more than to have everybody suing everybody else. So they pass a statute which says, for purposes of lawsuits in this State, every department can sue every other department.
Or, didn't mind independent agencies could sue the state in federal court for the purposes addressed here. Ultimately, the case seemed to be somewhat trivial, since the agency's lawyer agreed* with Breyer that the state could not simply reject the federal funds, but also not allow a state official to bring such a claim anyways. But, if a intrastate suit could occur in state court, if a federal question arose, it could occur in federal court. I guess states would not want to have such a blanket rule. Still, I wonder if there is a way to cabin such power to address some of the concerns. Finally, and this is partially a dislike of current so-called Eleventh Amendment immunity law, I don't see why state "dignity" is harmed in federal suits but not state suits of this nature.

The prison case was striking (as is that Dahlia Lithwick didn't cover it) but I found this one sort of interesting. There were others not covered here that appear to be fairly technical. As to the FOIA case, it is pretty narrow, and listening it to it as I type, doesn't appear overly interesting. The matter could be important in any given case though.


* "What we're saying here is that if a suit could go forward between two State agencies, between State agency and State officials in State court, and if that case involved a Federal issue, it can be heard in Federal court if the other requirements of Article III and Ex parte Young are being met."

Friday, December 03, 2010

Good Luck, John

The Mets recently lost two good pitchers and John Maine. Maine was a throw in, good in '06 and '07 and then dropped off. A gamer who got hurt. Never overpaid. Perez was and drove everyone nuts. Then, he just was an asshole. Let's lose in '11 without the b.s., okay?

Thursday, December 02, 2010

God of Liberty: A Religious History of the American Revolution

I recently referenced God of Liberty: A Religious History of the American Revolution by Thomas Kidd, which spoke of "five religious ideas connected far-flung and widely varied Americans." I summarized them in this way for my own records:
[1] Disestablishment -- no religious persecutions, free exercise rights and no preferences; freedom will further religious belief and practice (growth of evangelistic faiths)

[2] Creator God as source and guarantor of human rights from a common creation/equality

[3] Threat to human society/self-government arising from human sinfulness / flawed human nature

[4] Importance of virtue -- growing from religion and republican teachings; the former relies on faith & religious practice, belief in future rewards/punishments as well as a "moral sense" from within and without

[5] God has role in society -- "providence" and it is correct to acknowledge this via prayer and thanks
The book did a decent job covering these themes and it's an important subject. My concern was that it focused too much on evangelicals. Several chapters were specifically about them, the others often largely about their activities. By the end, it got to be a bit repetitive. The book did cover other groups, but I think not well enough. Given the title, this was a bit annoying.

My main beef was that more rational leaning religious believers (nearly no one was really an "atheist") was given little coverage. Thomas Paine was covered a bit, but given the broad coverage of evangelicals, there should have been at least a chapter focused merely on such groups. For instance, a vignette on Benjamin Franklin's beliefs might have been helpful. Or, Joseph Priestly. Or, some pages on the development of Unitarian thought in general. After all, at least two Presidents thought it the best religion out there (maybe at least three -- Adams, Jefferson and Madison). More on deism too.

The First Amendment also received pretty brief coverage and the strict way Madison/Jefferson applied it is somewhat different than the somewhat milder summary provided. But, again, the book was worthwhile. Religion was an important aspect of revolutionary history, though I was not convinced it was as important in unifying the people above all else or anything. Religion was deemed important, the term at the minimum usually a belief in God and future rewards/punishments.* How the latter could be a result of "reason" ala Paine or Jefferson is unclear to me. Franklin once noted the value of such a thing, but Paine's comment that he hoped for such an afterlife seems more appropriate for rationalist philosophers.

"Religion" is also understood to mean at least part of that today. An afterlife with a heaven and hell is not deemed necessary by many, some not liking that sort of thing, but God seems to most people to be required. "God" however is not quite essential to some religious thought though some supernatural force or overall entity of some sort might be. If heaven and hell isn't necessary, this seems to rob a key aspect of religion under original thought. All carrot, no stick, so to speak.

It appears that the way to virtue (also protected via political means such as constitutional mechanisms) is broadly defined. "Religion" is not necessary driven by supernatural entities at all. After all, in many cases, that part of it is pretty unimportant in actual practice. Consider "secular" Jews who follow kosher rules. Do Catholics or some other sect pay much attention often to doctrine? Marriage ceremonies remain sacred even if done by atheists. In this sense, "religion" retains a special value even for many deemed not religious. Matters of conscience are not just key components of religion, but in some way religious per se. As Wikipedia notes:
Religion is a set of beliefs concerning the cause, nature, and purpose of life and the universe, especially when considered as the creation of a supernatural agency, [1] or human beings’ relation to that which they regard as holy, sacred, spiritual, or divine.[2] Many religions have narratives, symbols, traditions and sacred histories that are intended to give meaning to life. They tend to derive morality, ethics, religious laws or a preferred lifestyle from their ideas about the cosmos and human nature.
The true diversity here is apparent as is its importance in our history. Virtue can be obtained by a true belief and/or acceptance in/of a certain way of life that might not be "founded upon reverence of God," or done in such a way that it is even more rational and abstract as even found in much deistic thought. [To forestall compliant, yes, mainstream religious believers can be quite rational while certain nonbelievers of that path irrational.] The felt need for such a "way of life" can still apply, just as mere belief in God is not enough for true virtue.

The core belief in the opposition to torture or injustice of inequality along with the need to live a good life and do justice, perhaps with various rituals and guidelines along the way, often seems to me on the level of "religion" even without a God and/or an afterlife, particularly given the bloodless alternative sometimes shown, based on often lazy pragmatic or passionless responses. "Belief" at times has a negative connotation as does "religion" for some people, but the inner passion referenced here is part of what is at issue here. Rights that arise from God or human experience that has determined they should be "unalienable" because of their goodness are both of a special caliber.

Not to exaggerate, the book does something of a disservice in its unbalanced focus, "religion" as with "value voters" again open to limited meanings.

[Last few paragraphs added today.]


* Justice Stevens once noted "religion" was
a word understood primarily to mean "[v]irtue, as founded upon reverence of God, and expectation of future rewards and punishments," and only secondarily "[a] system of divine faith and worship, as opposite to others." S. Johnson, A Dictionary of the English Language (7th ed. 1785); accord, T. Sheridan, A Complete Dictionary of the English Language 6th ed. (1796).
This reaffirms some of the themes summarized above. He earlier noted that in time the protections of the First Amendment expanded from the primary concerns of the original era. It does warrant noting that even then "freedom of conscience" and the like was referenced, a term that also goes beyond how "religion" was understood then.

Wednesday, December 01, 2010

Hanukkah: The Value of Moderation

And Also: I grew disenchanted with iCarly, which seemed to lose its fun, a season or so ago, but did catch a repeat of iStart a Fan War. Pretty fun episode. Rules of Engagement, unfortunately, has not gotten its groove back.

[In honor of the holiday, which begins today, I reprint these remarks from last year. Meanwhile, the complexity of Muslim adoptions.]

Update: Anne Frank's family celebrated this holiday as well as St. Nicholas Day (also noting a tradition of giving poems to each other on that day), in her diary emphasizing the latter, even though the former clearly is particularly emotional given their situation. OTOH, the latter might be more colorful and nicer to focus upon for the same reason. She also spoke about giving Christmas gifts to their protectors. I'd add, re-reading her last entry alone, Francine Prose was quite right to honor her skills as writer. Quite eloquent for someone fifteen.

Behind the spinning dreidels, holiday presents, and other "kiddy" traditions of Hanukkah lies a story of acculturation, civil war, zealotry, and tyranny. In a 2005 article, reprinted below, James Ponet explores the historical context of Hanukkah and casts the holiday in a new light.

A basic principle of Aristotle can be summarized as moderation in all things. The article cites concerning Hanukkah leads me the same place. As noted in the article, if someone picked up a Bible and looked for the story of Hanukkah, particularly the miracle of stretching a bit of oil for eight days, it might be difficult to find. The celebration started in the times of the Maccabees in the second century before the common era. The two biblical books covering their story is not found in many of the bibles out there because it is among those not accepted in the official canon of Jews or many Christians.

If we actually look at the First Book of Maccabees, the ceremony is less miraculous, no nice story about a tiny bit of oil stretched out provided:
And they kept the dedication of the altar eight days, and they offered holocausts with joy, and sacrifices of salvation, and of praise.

The Hanukkah (dedication) would be an annual event:
And Judas, and his brethren, and all the church of Israel decreed, that the day of the dedication of the altar should be kept in its season from year to year for eight days, from the five and twentieth day of the month of Casleu, with joy and gladness.

The use of the word "holocaust" here underlines the complications in reading the Bible without knowledge of what exactly is being talked about. The term has a different connotation these days; here is is a type of burnt offering. Thus, many Jews prefer "Shoah — a Hebrew word connoting catastrophe, calamity, disaster, and destruction."

But, the story in the actual book also is not solely about the "religious right" of the day rebelling against liberal Jews who started to adopt the ways of the Greeks. True or not, the book tells of a despotic king who ravaged their holy places and denied freedom to honor their God as they saw fit ... it was not that the Jews simply turned away from traditional ways. Those who did not were persecuted by the state. Compare this to the times of Jesus, where there also were Hellenized Jews (Greek cities were referenced in the gospels) AND more traditional religious practice. Or, references in the canonical scriptures of Persian leaders who respected the religious freedom of the Jews and allowed them to rebuild their temple.

Apparently, there could be such a mixture -- not all or nothing, even if people like Jesus rebelled against those who did not follow the traditional path as they understood it. The origins of the holiday either way make it a bit ironic that what many Jews deem a relatively minor celebration is highlighted by some as a sort of balance off of Christmas. A holiday that seems to some as a way to fit Judaism among mainstream culture was originally about the concern Jews adapting too much to the non-Jewish culture of the day. The problems with the fit is addressed here, in what else, a holiday display lawsuit.

The "miracle of Hanukkah" appears to be a later addition, much like many of our Christmas traditions cannot be found as such in the Bible. For instance, the very timing -- late December -- is not biblical, but more a reflection of pagan practice of celebrations that were later adapted by Christians. It's overall meaning, as with Christmas, can be many different things. A dedication to God as well as a reminder of the threat of persecution -- not necessary the same thing as religious diversity or even being ruled by non-Jews -- is one way. It also can be honored (as was the case by Anne Frank's family) along with St. Nicholas Day or Christmas, those celebrated as a sort of secular holiday by some Jews as well.

Perhaps, the eight days of the festival can be used to examine the various aspects of this matter.

DADT Report

The DADT report was released, but Sen. McCain isn't satisfied. Dan Savage on Keith Olbermann called him a bigot; it's a mean word, but at some point, it sticks. Equality is the best policy, it works, even if it is a bit of trouble. If this happens, big win for Obama.