Yanks, Rangers ... 2-0

Such is the ML start for Matt Moore, the second game as the Game 1 starter in the playoffs.  Rays easily won 9-0.  The Rangers don't do good with rookies (sounds like the Mets), which might be why Wade Davis (with a decent record) didn't start.  Next up, the aces.

DISCLOSE Act

Colbert had his lawyer discuss a striking thing regarding how he could arrange to keep contributors to his PAC secret.  Citizens United doesn't compel this.  Disclosure laws were upheld.  The problem is filibustering a bill that fills the continual gaps found in the law.

American Citizen(s) Killed By Drone

[As I wrote this, reports are out Samir Khan, a sort of Al Qaida propagandist, also an American citizen, was killed in that attack too.  More on the "pro" side at various spots here.]

The Associated Press intelligence correspondent Kimberly Dozier was told by a U.S. government source that al-Awlaki was killed in a joint CIA-Joint Special Operations command (JSOC) operation using drones and jets, an AP colleague said.

Some over the (RIP) Slate Fray were really on Obama for use of drones, even alleging "the left" gave him a pass on it vis-a-vis Bush. It got to be a bit annoying, especially given the death toll in Iraq etc. didn't make it "partisan" to think Bush was worse. Or, that I was an "Obama lover" or "didn't care" about what was going on. Glenn Greenwald's yes brigade has the same sentiment at times. This lack of coverage is curious with all the talk and coverage on blogs, Democracy Now!, Rachel Maddow et. al. Finally, there was some confusion on the difference between the requirements of those under our control (including regarding torture) and those outside of our control, including those actively avoiding it to continue to threaten the U.S., join with our enemies and make retrieval without military force very tricky. 

Drones were used pre-Obama and until now, the last American citizen killed by one was during the Bush years. Yes, drone use greatly increased in the last two years, a strategic choice to target actual terrorists (or those we think are), not a country that didn't invade us, and in a way that put a lot less of Americans in harms' way (or in a more indirect way than being shot at). The result are thousands of people killed, some fraction innocents, though what exactly that means is a matter of debate. This to me is ill advised, but again, cf. Iraq where hundreds of thousands were killed according to the Lancet study, tens of thousands even by Bush's own mouth.

Also, this is important, drone use is not inherently illegal. At least, that is the current understanding of international law. There are problems, especially if the CIA is involved, at least without better safeguards. There is also a question of locale -- it is quite different to use it in areas generally understood to be "war zones" (I use the quotes, since there is real debate over these issues) such as Afghanistan and Pakistan. Drones have an uncomfortable feel to some (killing by remote control), well grounded on some level, but is dropping bombs far above the ground truly different in kind? Howard Zinn and others didn't seem to think so when talking about WWII bombing raids. And, it targeted attacks actually lead to much less loss of life. The cost/benefit of easier warfare is hazy, granted, but the people not killed by better pinpoint accuracy is duly noted.

In 2001, Congress (yes, even Ron Paul) authorized military force against the forces (including individuals and groups, a controversial bit) that attacked us on 9/11. The open-ended nature of this authorization is troubling, and some clarification should be passed given changing times, but it leads me to be turned off when people claim use of drones against such forces is "assassination," a few even saying killing OBL is one such incident. As if killing General Rommel during WWII via a raid would be such. This aside from if it was a good idea. A strict reading of the law might question it, but it is a type of venial sin at worst. I talked about a speech on this issue here.

The federal courts, up to the Supreme Court, authorized use of military force against American citizens if they are "enemy combatants." This is after all what the Hamdi case was about. But, he was captured on the proverbial battlefield. Thus, when it was reported that Anwar-al-Awlaki, a bi-national, was targeted, his family tried to narrow things -- if an American citizen is involved, at least, the government cannot use military force against them outside of war zones. The family lost on standing issues, though one judge was wary about deciding the question at all. I find the family's claim reasonable, surely as a matter of policy, but the Obama Administration doesn't agree. Al Qaeda forces in Yemen are a legitimate target, even if an American citizen is involved. Such as the one just reportedly killed.

As noted, this apparently (you never know for sure) is only the second such citizen killed by drone in a decade. As with Troy Davis, is it really worth the trouble killing this guy? Going to a good international law blog, it's debatable. The question might be if he was in some "material" way connected to threats to the U.S. in the relevant way. This is an important question in the lower federal courts -- just strong must the connection be for the person to be an "enemy combatant," since you after all are saying you can be authorized to detain or even kill these people. There is confusion here -- some seem to think that they deserve full criminal trial rights. This might be ideal, but that isn't the rule. They are not being tried criminally, but in a military context. Some lower standard, but some standard all the same, is involved. And, when an American citizen is involved, who clearly has the right of protection from our government (see, e.g., The Slaughterhouse Cases), special care should be provided. I don't know if it was adequate done here legally. As policy, killing him was probably a mistake. For me at least.*

I might give a strict meaning to "enemy combatant," and in open-ended conflicts, Congress should not let some authorization of force a decade ago just linger on. It is true that Congress has to re-authorize funding every two years, but it is something of a joke to suggest this is a very serious examination of the legitimacy of the conflict. Still, killing American citizens, or particularly aliens, via on the ground attacks, dropping bombs from planes or by remote control in Afghanistan or Pakistan is "legal," if not a great idea. It is not "assassination" to do this. The means might be a problem, particularly if the means are done so secretly that it is unclear if the proper rules were followed. Once you get pass that, it gets closer. I think the speech referenced in general is reasonable, if too open-ended at some point. Where that point is past my pay grade, though I pretend to be able to say reasonable things about it. The killing here is rather close to the line, at least.

Congress should pass a new authorization or we should stop our roving military force. At the very least, if an American citizen is involved, family members (see the Hamdi case) should have standing to plead their cases. If they did, giving the state of the law in the federal circuit, he very well might have lost. This very well might have been unjust, but giving this guy any grounds of being some kind of martyr isn't grand either.

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* Rhetoric aside, no one is being "summarily" killed here. There is a process involved in determining who is targeted, and the Obama Administration isn't claiming some open-ended power to kill anyone deemed a threat. So, some drug kingpin can't be killed by drone when criminal process isn't successful. I fully am aware of the limits to such "process" and particularly with American citizens are involved, some court review is appropriate, but as with "assassination," some care should be used when discussing what is going on here. If not, why worry about proportional use of force or anything, since it's all bad?

Summer Vacation

Supremes style. Kagan and Thomas are hanging out? See also, the link on her page to a Q&A at Aspen.

DADT Case Mooted

The Log Cabin Republicans brought a suit challenging DADT, just declared moot by the Ninth Circuit because the underlining law was overturned. Regarding a claim that benefits might have been lost, "these missed benefits are not legal penalties from past conduct," so an exception pursuant to a previous ruling do not apply. The per curiam underlined what they were doing:

Because Log Cabin has stated its intention to use the district court’s judgment collaterally, we will be clear: It may not. Nor may its members or anyone else. We vacate the district court’s judgment, injunction, opinions, orders, and factual findings—indeed, all of its past rulings—to clear the path completely for any future litigation. Those now-void legal rulings and factual findings have no precedential, preclusive, or binding effect.

This wasn't enough for Judge O’Scannlain, who decided to underline how wrong he thought the district court was to apply Lawrence v. Texas to the military context or suggest some "fundamental right" was protected by that ruling, some broad language of what was at stake (hint: not just sex) notwithstanding. I would add notwithstanding citation of Griswold et. al. that were clearly about fundamental rights. The whole point of the opinion was that the conduct here fit into the general trend, Bowers denying it being simply wrong.

A judge does not "sacrifice the rule of law to find rights they favor" in seeing this. That tired reference to what is actually a difference of opinion based on a honest judgment (to me, also correct) is as recently noted, a pet peeve of mine. The dissent in the 11th Cir. case he cites (the same circuit that struck down the PPACA provision) underlines the point. He also cites a conservative 7th Cir. ruling rejecting a shot in the dark defense of brother/sister incest that similarly went out of its way to diminish Lawrence v. Texas. Again, cf. the concurrence to Muth v. Frank, which reached the same result without the right wing commentary.

What is the wrongful fundamental right at stake here?

Put simply, the substantive due process question raised by Don’t Ask, Don’t Tell was whether a service member possesses a right to serve in the military when he is known to engage in homosexual conduct or when he states that he is a homosexual.

The latter point is free speech, even if it is free speech that arises out of conduct. Nothing novel about protecting that. What if the military tried to silence people talking about their sexuality totally? Unlikely. How does one do that? It would require not talking about spouses or showing any evidence of it to others. The basis of the policy was that there was something special about homosexuals. Lawrence v. Texas (and Romer v. Evans) underlined that homosexuals weren't some special group in this respect. It was not merely something that struck down an "outlier criminal statute." It "resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty."

The military can have stricter rules and it is true that Lawrence v. Texas (like Heller) was sure to add an advisory section about what is not covered. But, the ruling was clear that homosexual couples were to be treated like "individuals," and that the law "demeans the lives of homosexual persons." The ruling ultimately rested on substantive due process but clearly had an equal protection flavor. This was reaffirmed in a later case that cited O'Connor's equal protection concurrence. As with Romer v. Evans (overbroad animus) and back to Griswold (married couples), basic principles are at stake, not merely narrow results.

Sorry if you do not "favor" this result. DADT was overturned because, as with racial desegregation of the armed forces, the equal protection principles found in the cited cases were deemed applicable to the military. It is gratuitous for some appellate judge to allege that the district court judge voicing the same general spirit was in effect making shit up out of policy preferences. At least. The question was at least debatable. After all, a few judges thought it was the right approach long before Lawrence was decided, even after Bowers. Merely speaking about one's status being not the same thing as conduct.

It surely does not merit the narrow reading of Lawrence provided here, responding to something not quite that "outlier." A case was cited that counseled against broad judicial recognition of rights, but as with Romer not citing Bowers, the dissent criticized the majority not citing Washington v. Glucksberg. If anything, the implication might be that the "fundamental rights" of "intimate and personal choices" made that case not applicable, since (unlike physical assistant suicide) there was nothing novel going on. Just applying old rights equally.

The restrictive approach of the DADT concurrence was "judicial activism" of a questionable sort on the merits. The two other judges might be sending a signal too with the apparently particularly forceful language but if so, they did it with a bit more finesse than trying to restrict Lawrence to the facts or something.

Tampa Again

A thread about the Constitution becomes one about tired abortion arguments.  How old. I didn't really see it, but the final innings of that Rays game was crazy -- Ayala and Logan aren't really scrubs, the guy who hit the tying homer usually is etc. Save some for Texas.

Don't Agree With It All, But Journey Is Worth It (and quick!)

The author is personally conservative but blogs in reasonable fashion and here underlines constitutional interpretation is affected by generational struggles. Interesting sequel.

Supreme Court Watch

A cop killer -- after thirty-three years (I share Breyer's concerns) -- was executed, repeated final appeals rejected by the USSC.  A new drug protocol was used per shortages.

Reminds Me Of A Classic Pic Of Clemens

He threw a bat in the direction of Mike Piazza and the NY Daily News had a great cartoon of him in a bat suit with a lit fuse on his head.

Game 162

Reyes -- after leaving the game after one at bat (a bit chicken, but a venial sin; he bunted ... didn't know Mets could bunt) -- is the first Mets batting champ, after Braun got no hits. Given that result, Reyes could have gone 1 for 3 and still won, but it would have been more risky. The SNY didn't like him coming out -- a rare strong dissent -- including since it might be his last day and they didn't even let him come back on the field one more time to get a full send-off. Reyes had his night the day before -- with two home runs, when he rarely ever hits one. The Mets did win, finishing with two games under last year's totals, but with less expectations. I need to see what off season moves they make; the true proof in the pudding will be in '13.

The Brewers did win, so are the second seed. The Cards won but the Braves blew a save and their wild card chances in the 13th. Who do they think they are with such a collapse? The 2007/8 Mets? The Mets only blew a seven run lead in September, not eight, and not 10.5 in late August. Yeah, don't feel that good -- the Phils are the problem now. And, because their ace closer couldn't do it. The Cards winning helped Arizona, since the Phils will play non-NL East dwelling birds in the first round. The Brewers are tough especially at home but in a short series, the Diamondbacks have a chance, probably a bigger one not facing the aces from Philly. Go Diamondbacks!

Meanwhile, Tampa looked D.O.A. with Price not having it (he had a mediocre year) vs. the Yanks B team, but they came back down 7-0 with six in the 8th and one in the 9th (down to the last strike, since things weren't corny enough) to tie. Then, they went back to not scoring. Meanwhile, the Orioles (though giving up a run on a balk) had another gutsy performance, only losing 3-2 in the 9th, including after dealing with a rain delay. Lousy year, but great start and finish. First, Texas gained the second seed, so its Yanks v. Detroit. Then, Papelbon didn't gut it out. Even with two outs with no one on, up by one. The Red Sox blew the save. And, then the scrubs left (Proctor in his third inning) gave up the winning run and the f-ing Rays -- I didn't believe it would happen a few weeks back -- won it in the 12th!

No Game 163, huh? Go, Tampa!!!!!

Slate Fray Ending Soon etc.

And Also: A discussion on a long term (unlawful/racist) practice of getting around the treatment of small time possession of pot in NY as a trivial matter. Another good Body of Proof episode with a good mystery. Caught NCIS repeats. Decent time waster.

When the Slate fray stops being active, perhaps today, it is too bad. It was a good platform to address the material covered as well as discuss it and other matters with other people. Using inferior posting software to comment to individual articles is not quite the same thing. I enjoyed my time at Slate, but will stop reading after the "fray" ends. The actual content isn't that good any more or at least anything that will compel me to come or anything. Political Jack, an alternative some fraysters will use is not what I'm looking for. It is merely a message board. This is fine, but I like responding to specific articles and the overall format used. This even after the "star" system was discontinued. Twice being a "star" poster was nice, though perhaps a violation of my "no titles of nobility" principles.

Blogs continue to provide a means to do what the Slate Fray offered. You have blog posts to respond to and the ability to interact with others. The threading on certain blogs (let's say Daily Kos) even offers a type of "threadjacking" possibility to address other issues. Blog threads in general often don't quite address what the person was talking about. This can be equally interesting and annoying. For instance, here, "Shag" often cites some article he is reading that might interest people. That's generally positive or neutral, if somewhat non-germane. But, Slate fray provided a platform for freestanding posts on issues not connected to the article. Not linked to the article, it would receive less hits, but still it might interest someone. It was a good system. But, not meeting Slate's needs any more.

The blog linked discussed a pledge to support the "whole Constitution." I discuss the matter there, including how "support" doesn't mean you never criticize some provision, nor does it mean agreeing with a specific interpretation. Thinking the 2A only protects state militia does not mean you don't "support" the Second Amendment, even if you are wrong. The same applies to constant talk of people "inventing" stuff, when what is really meant is that you don't agree with their interpretation. One is a debate over interpretation, the other is a matter of bad intentions. It is a tiresome matter that so many do not seem to recognize the difference. And, one side (often, quite vocally, the so-called Tea Party -- which I find a stupid name) saying they are the real slim shady here (obscure reference), that they are the ones who really support the Constitution, when in fact they reasonably can be said to want to change major aspects of regularly accepted understandings of it, is particularly hard to take.

[Sometimes, people are wrong, sometimes too sure of themselves, but there is a lot of stuff to discuss, so that is going to happen.]

But, trusting the bona fides of your opponents is sometimes not popular these days. Nor is polite debate. See, e.g., taking guns to protests or trying to shout down people at town hall meetings. Or, last night on Rachel Maddow, we heard about how Gov. Christie (R-NJ) is seen by some as a savior in the Republican presidency race. Partially, it is a matter of him seen as not just a kneejerk troll. He appointed a Muslim to the courts, after all. RM focused on his attitude -- well he is from NJ (it's okay, I'm from NYC), right?

I personally don't appreciate jerks and he comes off as that sometimes. He ran against some leaving a lot to be denied rich guy last time, so him winning was not quite a slap against the whole Democrat brand. He does (sadly) represent the national Republican brand in that they are unpleasant sorts. To be honest, going beyond his image, Christie is someone who probably is a member of the "adult caucus," which seems lacking on his side. So, he needs a hook to be attractive to the base, and his "take no prisoners" approach (including being nasty to teachers and such) helps. The Koch Brothers also like him, so he has some support from the richer than God class.

Still, I hope Jon Huntsman is the face of the future.

Church and State

First, I welcome (who knew? it's like I'm on Twitter or something) my new follower.  Second, this"prison or church" program was cited in my local paper.  If there are secular alternatives, as I note there, it might work.  Meanwhile, big "ministerial exception" case coming up.

Mets Manage To Lose The Game

One out from winning, blew it, and a closer that didn't seem to know how to throw a strike when the Reds finally (what's that? a bunt?  what's a bunt?) went ahead, but the Mets still lost.  I think the season as a whole was okay, but the last few weeks were pretty hard to take.

Game 161

The road to a game 163 continued with a 8-7 win by Boston, a triple play by the Rays, the Cards coming back with five runs and needing more ... and Reyes hitting two home runs.  And, the night continues, in part thanks to Parnell not being able to get a one out save.

J.R. Ackerley

J.R. Ackerley has my first name ("J" is for Joe) but that isn't the only thing that led me to read his books. 

The critically praised (though I didn't quite care for it) animated version of My Dog Tulip led me to check out the book.  The book's open and honest tone, the narrator was something of a curmedegon but far from an all knowing one, was attractive. He was an editor of an English literature magazine so his writing skills are not surprising, though on his own, Ackerley only thrived when providing autobiographical material of various types.  This included a play based on his P.O.W. days, a book about his father (dedicated to Tulip) and the novel recently referenced.  As a young man, after WWI, Ackerley tried to branch out but to his disappointment, failed in the effort.  His works remain critically praised and an intro to one notes, this plus the fact he served as a mentor to other writers left him as a pretty good success.

Ackerley was the son of a "banana king" (the importance of fruits to 20th Century Latin American history has been well documented) and an actress, who he later learned only married when he was an adult. His father also secretly had another family and a past with homosexual overtones.  JA was solidly homosexual though he never truly found that "ideal friend" dreamt about, a couple long term relationships (not without disappointments too) notwithstanding.  This led to years of loneliness and dispair until he obtained a dog via one such relationship, when the person was jailed on a theft charge. He used this for his novel, which is a pretty sad account of a clearly lonely man who is desperate for some recognition of his role in the guy's life -- his parents and wife seems unfairly to dominate him, blocking him out.  Only the dog (here "Evie") is loyal and there (though he's glad) so much as to refuse to share him with anyone else, even his own cousin.

Tulip was an "Alsatian Bitch" ("bitch" is how she is repeatedly described, so the word was not disreputable in that context as it might be now), a telling bit. The introductions to the books and the film commentary all underline the symbolic nature of his relationship with his dog.  Ackerley's ideal friend was a man loyal to him, somewhat feminine (since Ackerley was to be the dominant one in the relationship, including financially, which is the "masculine" role) and beautiful.  The dog here (a type of greyhound looking breed) met those requirements, but there was a sacrifice involved with such a needy breed (even vets and kennel owners spoke of their unruly behavior).  Also, those who wonder why the Tulip book is so concerned with her breeding, well, Ackerley himself sought out an "ideal friend" via many many sexual relationships, sex an imperfect way to meet his needs.  Finding a mate (to "marry" her) would therefore be a way to please her.  Transference involved.

The Tulip film as noted took a few scenes from We Think The World Of You (an ironic title, since he doesn't really think "they" do, if not as strongly as he does for his "ideal friend"), which is fine, since the novel was really a roman à clef.  The author was middle aged when he obtained the dog, the film a bit misleading, the old man a better match to the voice actor than the original.  My Dog Tulip was a slightly altered (how much, I guess, warrants a look at Ackerley's biography by Peter Parker) account as well.  There is one other book that I have yet to read, a narrative of a trip to India in the 1920s as well as some correspondence published after his death. 

This is a graphic novel (it speaks of two others) from the author of The Time Traveler's Wife.  It is a charming adaption of her short story, with an adult twist involved, about a woman who comes upon a bookmobile containing all the stuff she ever read. 

Graphic novels are not just glorified comic books, but a nifty art form in themselves with much potential.  Some serious subjects, including the Holocaust and Israeli fighting in Lebanon underlines the reach as does less serious fare such as Pride and Prejudice in graphic novel form. 

Another Gutsy Romo Performance

Baseball Update

Reyes is ahead in the batting race by a hair but overruns the base & helps the Mets lose. Cards lost to the Mets and now Astros in a key moment. And, Rays/Sox tied. Some meaningful baseball left. [Also, Arizona has a shot for second seed, one way to avoid the Phils.]

We Think The World Of You

This is the semi-fictional part of the "Tulip trilogy" that later was made into a movie. A type of beginning. The movie version of My Dog Tulip also takes some material from here. Pretty good but I enjoyed the non-fiction better as a whole. Similar emotional honesty.

Burden on Proof

There is some reasonable dispute over what happened to Troy Anthony Davis, but the burden of proof is on the "pro" side. "Beyond a reasonable" doubt, especially with life at stake is harder to meet even than "pretty sure." One can "give a little" and still win.

Sunday Quickies

Pretty interesting sports day, including in NY sports, one still ongoing. Even the Mets loss ended a long Phils losing streak (of little note). Pan Am looks possibly interesting, good Drop Dead Diva cliffhanger. [Update: The wrong teams won Sunday night. Boo boo boo!]

Gee Rights Self

Well, the games are only for pride, but the Mets managed to sweep a doubleheader vs. the Phils after an error aided big inning gave Gee the lead, which he kept. He even laid down a bunt (on the second attempt)! Tampa won too & retain a long shot chance.

Saturday Quickies

Low key, but decent DVD commentary for the t.v. news fluff film Morning Glory. Yet another very good no decision for the Mets knuckleballer/cum philosopher. They won this one. Gee struggling again in nite cap. Hope he can have a better year straight thru in '12.

Death Is Different

[posted in a slightly different form in the Slate fray]

As with torture, there is something archetype related in the opposition here that goes beyond mere numbers. Numbers-wise, even in Texas, a very small number of people are involved here. Even in days of yore, only a fraction of those death penalty eligible (even a smaller subset of murderers) were even given a death sentence, as an Explainer piece notes, even a much smaller number were executed. So, why the noise on both sides?

There is something special about the government executing those in their custody, particularly American citizens, particularly if there is something hinky about how they got there. The concern goes beyond this narrow area, of course, just as DNA testing isn't just concerned with those on death row (e.g., various people were found to be falsely accused of rape). But, the death penalty is specifically symbolic of the dangers of government wrongdoing and the sanctity of life. Even if the people involved are heinous,* we want to ensure a certain level of protection.

To quote:

The penalty of death differs from all other forms of criminal punishment, not in degree, but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity.

The judgment of society, which is ultimately what guides what "cruel and unusual" means to a large extent (if channeled to some degree, as Dahlia Lithwick noted in a NYT op-ed, by the courts) was expressed by Justice Kennedy, the current "swing" justice:

The rule of evolving standards of decency with specific marks on the way to full progress and mature judgment means that resort to the penalty must be reserved for the worst of crimes and limited in its instances of application. In most cases justice is not better served by terminating the life of the perpetrator rather than confining him and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offense. Difficulties in administering the penalty to ensure against its arbitrary and capricious application require adherence to a rule reserving its use, at this stage of evolving standards and in cases of crimes against individuals, for crimes that take the life of the victim.

The "limits" here include limiting it to cases where there does not remain some "residual doubt" after sentencing, which repeatedly has shown to be an imperfect process making appellate review and re-examination by executive bodies well justified. I and others think Troy Davis failed this test, putting aside the further belief of some of us that the "peculiar institution" du jour should end.

Meanwhile, many more lives are at risk in ways the government can address. For instance, the thousands of people who die because of the inability to have adequate health insurance, which was addressed in significant part by the PPACA. Those of us that think health care should be a protected right, such as it is for some, see this also as an important life and death issue. As with the many criminal justice issues beyond the death penalty that needs to be addressed better, these are all important issues.

But, death remains different, particularly the death penalty.

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* A few over at the Slate fray fantasize about getting some personal justice if a family member is involved here, but it is just that. In reality, we have a criminal justice system, one where "an eye for an eye" isn't the philosophy.

Clinchers

Last night was one of various clinchers, including the Diamondbacks (my playoff '11 team)and near clinchers (e.g., Tampa lost again, limping toward elimination, after having a real chance again). Slate fray lives for another week or so. Yeah, a stay from execution.

America Was Great?

“Pan Am” doesn’t say much of anything about the current state of the nation except that our best days are behind us.

Depressing times. This too shall pass. We still have to get through it, not all doing it. Meek's Cutoff looked good, too dull for me.

Blag Hag Gets New Home

And, really, Rush Limbaugh loving? I think that, not the Lutheran part might have been the problem. People do have different religious views, especially if the other isn't an asshole pro-RL. There are other deal breakers than some liberal religion type. But, to each their own.

Mets Spoil Again

After hurting the Braves, the Mets came back from a stupor (with some help) and scored seven runs in the last two innings to stop the Cards from benefiting as much as they could. Still, won't win as many games as '10. A "to be continued" feel. Learn how to bunt!

Doc Martin

A sorta spin-off of Saving Grace, if with different personality and last name, episodes of this amusing British show can be found online. The latest on Youtube. The leads also were good in other stuff, Louisa in varied cop roles and DM on the rather different William and Mary.

Scalia vs. common law judging

Since courts in each jurisdiction here and many abroad interpret a written Constitution in a way he thinks is "entirely senseless,"  it is quite impressive he is so very wiser than all those people. (/sarcasm)  A bit of confusion in Kelo reporting. Brooke Shields to play her on t.v.

"Mommy, bears don't use toilet paper."

What half-way smart five-year-olds should say to this.

Change in Death Penalty Conversation etc.?

Rachel Maddow, Dahlia Lithwick et. al. had some interesting coverage, but I don't know how much Troy Anthony Davis or the Supreme Court taking a few more capital cases will change things. 

Troy Davis Has Been Executed

"legal acrobatics"

Some comments by "Brett" on the constitutional recognition of slavery (and its racial nature) led me to supply my .02.  He was partially right to call out some who don't recognize that the Constitution is somewhat mixed on the subject, the fact it leaves an opening for a lot of wrongdoing not meaning it quite requires such a path.  The subject of the post -- the 3/5 Clause -- underlines the confusion.  The clause does not treat, stereotypes aside, blacks as 3/5ths of a person.  It treats slaves (as James Madison's discussion in F.54 suggests, "other persons" were basically slaves, even if literally others might be included, and the slaves were going to be black, again even though the path is left open for something more) that way in respect to apportionment of House seats and direct taxes.  But, the underlining principle (see Madison) does recognize slavery as legitimate and given the realities of the situation, blacks (even if free) in particular were harmed.

I added a link to my quick comment yesterday about the end of DADT, the link to a discussion on how both political (executive action covered, so not merely legislative) and court action (I guess some might think of this as "political" too; maybe "elective" then) work together to change things in the area of civil rights. This underlines the principle discussed by Pamela Karlan in my Constitution Day post last weekend: the Constitution sets forth basic rules that change over time.  This is one reason why electing Lincoln was so dangerous to certain forces -- true enough he agreed the federal government could not interfere with state power to allow slavery in any number of ways. But, there was enough flexibility there (see the dissents in Dred Scott) to endanger slavery forces all the same.  If slavery was ended, as it was without amendment in a majority of the states (including Maryland and Missouri during the Civil War), slaves wouldn't be "other persons." They would be "persons" with certain basic rights. 

And, even with slavery, a different mind-set could interpret certain provisions a different way.  Imagine if the Fugitive Slave Act was declared partially unconstitutional since "persons" (as alleged fugitives were) did not get proper due process rights. The law, after all, wasn't the only thing that led the Missouri Supreme Court in Dred Scott's case (in a separate lawsuit) to change its rules regarding recognizing that slaves that went into free areas staid free, even if they returned to the slave state of Missouri.  The majority opinion cited the pressures of the day, how free states allegedly violated the comity involved that warranted the old rule.  Electoral politics also led certain people to be elected President, people who then nominated certain people to the Supreme Court though the division of the country into judicial circuits, not by some sort of "one man, one vote" fashion that would have given non-slave areas more coverage, also influenced the breakdown.  And, the very decision of Dred Scott was influenced by party politics, Congress in fact basically welcoming some judicial settlement of the question by easing suits involving slavery in the new Mexican War obtained territories. 

It is equally naive and blind not to recognize that a mere literal reading of the Constitution fails to explain how the courts and the people at large interprets the Constitution.  It is especially true when examining things at the margins and by looking at swing votes, which our system (including in Congress) gives some extra power to at the end of the day.  Such forces are influenced by things like public opinion, personal beliefs (including empathy) and other "soft" factors other than some strict reliance to the law. Our system of law in fact encourages that sort of thing by setting up broad rules ("due process," "beyond a reasonable doubt," "rule of reason") that have a lot of play in the joints. This results in a type of "common law" approach influenced by events, even if statutory rules serve as limiting factors.  It's messy, but realistically that is how things work, even if some angrily reject it (while following it sub silento).  On the SSM issue:

So, the legal acrobatics have already been invented and exercised. The question is whether the public’s comfort level has advanced far enough toward accepting marriage between same-sex couples to embolden the Supreme Court to do its job.

I would question if the "legal acrobatics" is always a bad thing.  The ideal for some is justice, even if the sky will fall. But, life doesn't work that way.  Someone cited to me the idea that we all have inherent rights and accused me of believing we have rights, until the government doesn't recognize them.  Sounds nice, but if the government doesn't recognize them, what good are the rights?  We can imagine "natural rights" that exist but are unenforced.  On some level, that sounds good, but again, only helps the slave so much.  Practice is a bit more messy.  And, the slow change -- at times being a bit coy about the messiness involved -- approach just might be the way to go there.  After all, people can all they want pretend that the Constitution in practice meant the same thing (putting aside amendments) in 1900 and 2000, but that's not how things actually work.

The change -- kinda like evolution -- is slow, if with some major changes mixed in to keep things interesting.

Three Thoughts

Food: One medium sized grapefruit can be used to make a pitcher of grapefruit juice or mixed with wine to make a tasty cooler.  Raw carrots make good snacks.  That water you drain from pasta, especially if you added something (like a few packets of Chinese food flavorings) beforehand, can make tasty soup base.  The pasta tub in the microwave thingie works pretty good.

TV: Body of Proof is back and it started off nicely.  Good character stuff, mystery and the always charming (for t.v./film nerds) familiar guest stars (FNL/True Jackson V.P.) with an inside joke about Desperate Housewives tossed in.

Complaint: Slip-ups that seem so patently obvious.  For instance, having "no doubt," contra one recent book I read, is not necessary before "clear and convincing" is met. There is something else, which actually has "doubt" in its name, where that works better. And, even there, it is not really "no" doubt but no "reasonable" doubt.  Some argue, e.g., that the death penalty should be left open only when even perhaps a higher standard is met, even a "shadow" of a doubt, even if somewhat unreasonable, would disqualify. This from a law professor type.

Also, Justice Douglas did not "speak for the dissenters" in Poe v. Ullman.  It's a pretty important case and easy enough for a person to look up and see he spoke only for himself.  Didn't these people have readers or something to stop such stuff from being in the final copy?   No review for you!

Repeal Day

At press conference on the day DADT finally ended, Chairman of the Joint Chiefs Mike Mullen says decision to end the policy was "first and foremost a matter of integrity."

Elections matter. [Courts do too & who picks the judges?]

Slate Fray Ending Soon

I first contributed to the Slate Fray to comment on the Bush v. Gore litigation and then returned in early 2002. It allowed me to comment on articles and submit freestanding stuff, getting feedback. Good as long as it lasted. Don't think much of the new comment system.

Drop Dead Diva

Another average episode, Stacey being the most dramatic bit with her comeuppance coming at the end. The guest stars (yes, that's the guy from the football movie) didn't add too much, especially the judge.

Jets Still Looked Like The Rams

McCown, who was replaced by rookie Blaine Gabbert early in the fourth quarter after posting a dismal 1.8 quarterback rating.

The actual NY team, Buffalo, had some comeback as well.

Deputy National Security Advisor John Brennan Remarks

Some comments [by a former Obama legal adviser and critic of broad claims of executive power] on recent remarks by Deputy National Security Advisor John Brennan seems a fitting thing to discuss since they address some of my themes and answer some of the strong criticism of Obama from some on the left that to me seems rather skewered, this from someone far from enthused about our use of force. In part, an op-ed is quoted:

It has simply not been more of the same. The CIA’s “black sites”–secret prisons in other countries–are closed. Enhanced interrogation is outlawed. The laws of war have been restored. Guantanamo remains open not because Obama wants it that way, but because Congress has barred the expenditure of funds to bring its prisoners to the United States for trial.

Thus, to pretend that there has been no rejection of what came before–of what defined the “war”–is a mistake. It took court decisions, public opposition, congressional changes, new leaders within the Bush administration, and finally a new president to end the war on terror as we knew it.

And the effort was worth it. Because we got better.

What of criticism of drone attacks, even as a reply to criticism of use of the death penalty? As the analysis shows, the attacks are not open-ended summary use of force:

It’s evident that a principal purpose of this section of the speech concerning the use of force, especially outside the “hot battlefield” of the Af/Pak theater, is to further distance the Administration from the “Global War on Terror” framework that infected U.S. characterizations of our counterterrorism strategy shortly after September 11th. ”[W]e are at war with al-Qa’ida,” emphasizes Brennan–not with all terrorists the world over. (Brennan explains that our “ongoing armed conflict with al-Qa’ida stems from our right—recognized under international law—to self defense. This is not news, or controversial. See, e.g., U.N. Resolution 1373 (Sept. 28, 2001). There is no such self-defense rationale available as a matter of the jus ad bellum with respect to all international terrorist groups.)

The use of this power can be attacked on policy grounds, and in respect to some target areas perhaps legally, but to simply speak of it like we are going around assassinating people willy-nilly is exaggeration on steroids. We also are not merely picking some groups worldwide we don't like and killing them. The group is one that attacked us and membership is worldwide and continues to wish to do us harm, including by military means. The use of force was authorized by Congress (2001 AUMF) and (in various cases) international law. Cf. torture and cruel/inhumane treatment.

Aside from the fact (unlike those in custody) that the people being killed (see, e.g., drone attacks in Pakistan  to see who these people tend to be ... the collateral damage of civilians granted, underlining the problems with any use of military force) don't have some sort of constitutional right of protection. Also:

Of course, there will be contexts, particularly in some of the locations to which Brennan is referring, where capture is infeasible, for various reasons of logistics, technology, diplomacy, the nature of the consent the U.S. has obtained from other nations, etc. But Brennan’s remarks should put to rest the notion–for which I’ve yet to see any good supporting evidence–that the U.S. policy is now to kill persons who it would have apprehended several years ago.

Any "policy" isn't likely to be applied 100% without breach (see comment there on OBL, which is as the reply notes, not exactly the normal case though some harp on it like it was), but this has bite. Too much force, secrecy and so forth continues, but there are shades of gray indeed.

Constitution Day

And Also: I admit to have grown tired of Rachel Maddow, but the news in general tires me out -- it's depressing in repetitive fashion. But, I'm glad Chris Hayes has a new show; his strong "The Nation" voice is appreciated.

A couple quotes from a few years back:

Why study the Constitution? Study the Constitution because it is both the foundation and the guardian of our liberties. Study it also with the knowledge that as strong and enduring as our Constitution has been, it is nevertheless a fragile, almost intangible thing that cannot survive without the dedication and constant support of citizens. The statement of Benjamin Franklin, made in 1787, is still true today. This is a Republic, if we can keep it.

-- Sen. Byrd

On September 17, 1787, the 55 delegates to the Constitutional Convention held their final meeting. Only one item of business occupied the agenda that day, to sign the Constitution of the United States of America.

-- Constitution Day [shifts to next business day, if it falls on a weekend]

I'm not sure if 9/17/87 is the best day to celebrate, since it might be better to be concerned about when it was ratified or officially was put in place (not the same day), but then we celebrate 7/4 based on the potential over the actuality. Guess there is some message there about our culture. Anyway, the day continues to have value, the government (per the Declaration of Independence) established to secure our rights and protect our interests, the Constitution to do so better:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

A reasonable (and sane) reading of the document continues to be important, even as some use it to the public's detriment:

Keeping Faith with the Constitution wades into a long-running debate about how we should interpret our Constitution. This debate is an important part of public policy discussions on everything from judicial nominations to health care reform. For a long time, conservatives have framed this debate by portraying themselves as strict adherents to the text and original understanding of the Constitution, while claiming that liberals and progressives ignore the text and decide cases based on their own values or policy preferences.

That characterization is, of course, a caricature.

-- Pamela Karlan

This is also the traditional time that the Cato Institute releases there book analyzing some of the key rulings of the previous Supreme Court term, though it might take a bit of time to be available on Amazon (I will get it in the beginning of November). And, the first Monday of October is just around the corner as the more chilly weather upon us here suggests as well. Time goes on.

The Closer

I caught the latest episode and the ending (good guest star turn) has some bite for a person of my sentiments; the bad Mexican cop killed in custody (S4) was particularly problematic. We now have a new show about IA. Episode as a whole was good. Still don't know the mole.

Finding Bliss

I first saw this film via Netflix. [Another good watch there was TiMER] It was on television last night. Again, good film, and darn if she even sounds like Helen Hunt. Denise Richards has a nice role too.

Becoming Jane Austen

I did not read a full length biography during my "Austen" period of late but did not really care for this one. A few too many assumptions, too many family details (done in a tedious way) and a few questionable absences. Stopped reading though admit to it having some charm.

Sonogram Law Partially Struck Down

And I just cannot, any longer, refrain from making the observation that it is really ironic and disturbing to hear that liberty lecture come from people talking about [a] government takeover of medical care, many of whom would legislate the imposition upon women of unnecessary waiting periods, government scripted lectures, compulsory sonogram viewings, and government mandated unsafe medical procedures.

-- Walter Dellinger

A federal judge ruling on a Texas sonogram law (among other things) had a similar sentiment:

In short, if the Texas Legislature wishes to prioritize an ideological agenda2 over the health and safety of women, the Equal Protection Clause does not prevent it from doing so under these circumstances.

The footnote expressing the "irony" of selective concern for government control of health care. But, as with Dahlia Lithwick today (barely worth linking) sarcastically noting that on the issue of the death penalty, government suddenly can be trusted (these aren't libertarians, no matter how many times they pretend to be), it isn't really surprising. It's annoying, sure, but not surprising. The judge, for instance, noted the "almost perverse" statement that the woman handed to sign that mandates were done via her "own free will and without coercion."

The ruling doesn't seem to address the bodily integrity burdens of unwanted medical procedures, but does note the First Amendment problems with the requirements. The physician has to say medically unnecessary things of an ideological sort and the woman has to listen (they get out of actually needing to see the sonogram)unless she is a victim of abuse, a minor that had a court bypass (why?) or the "fetus [usually it would be an embryo] has an irreversible medical condition or abnormality." This would also be permanently put in her medical records, including what category she is in. Such things, particularly for abuse victims, was deemed unconstitutional.

The judge didn't accept most of the vagueness claims but did strike down a few provisions, particularly:

If the penalty provisions were less severe, the Court might conclude otherwise, but a physician should not have to gamble his or her entire career (to say nothing of $10,000 and a criminal record) on the mere hope a judge or jury will agree with the physician’s interpretation of that phrase.

They provide various confusing or at best burdensome regulations "making it significantly more difficult for pregnant women to obtain abortions." Since Casey still recognizes the liberty interest at issue, "rational basis review requires this Court to accept even tenuous rationales for the advancement of a legitimate government interest" seems a questionable conclusion. The judge notes "grave doubts about the wisdom" of such laws, laws which put the sort of substantial obstacle in front of obtaining abortions that even looser Casey rules seems to find problematic. And, since legislators are getting smart and putting in a proviso that if parts of the law are struck down that the remainder should stand, the incentive is to over legislate in this area. Casey opens the floodgates, the limits a matter of political safeguards and judicial oversight. But, the ruling still puts some up some barriers. 

Given the passage of various new laws by the "limited government" Tea Party legislators out there, judges will be busy. For instance:

If a woman certifies she lives 100 or more miles away from an abortion provider, she may satisfy the informed consent prerequisites two hours prior to an abortion; otherwise, the Act requires they be satisfied twenty-four hours in advance.

Casey leaves open such laws to review if an "undue burden" on the right to choose an abortion is involved. I don't know how they managed that distance, but it would be quite relevant in some states, including those with one provider. Suffice to say various courts rule on these things differently, various nuances of the law sometimes taken into consideration. Forced medical procedures and ideologically based scripts best left to so-called crisis pregnancy centers (code name for anti-abortion centers, though clear labeling rules saying as such have run into court action) shouldn't be a close question.

Mets Barely Show Up

Well, the pitchers (minus the "relief" today) did, but it's hard to see who else did. Meanwhile, the swept Mets (new record!) faced the Nats, who actually looked credible. And, sacrifice bunt, what's that?

Melissa Rogers Pops Up

I don't frequent some of the places on my blogroll much any more, but a recent check saw a brief sighting of someone long M.I.A. 

Lower Court Watch

Liu got a decent consolidation prize and now is deciding a Prop 8 matter sent back by members of the court he failed to join.  A federal judge blocked the "don't ask me about guns" law passed by Florida on obvious content neutral rule grounds.  Nice use of "inveigle."

Whitney

I caught this on demand. I turned it off after five or ten minutes of not that funny stuff was made less funny with a laugh track. Possibly, the actual studio audience found some of these jokes that amusing, but it was annoying either way. Doesn't look that promising.

Necessary Roughness

This is my USA Network show of the moment, "characters welcome" and all that.  Good final episode before a brief hiatus, good character stuff, the ending cliffhanger rather unexpected.  Still find the kids annoying.  Thus, ends an unexpected number of posts today.

David Wright Forgets How To Play Again

Not only is he not hitting (admittedly, not alone), but he is back to not knowing how to field -- the Mets have three more outs to not lose again to the Nats, both runs coming off that error.  Meanwhile, the Rays blew a chance to gain on Boston.  No real margin of error there.

Good word for politicians

A politician knows that more important than the bill that is proposed is the law that is passed. A politician knows that his friends are not always his allies, and that his adversaries are not his enemies. A politician knows how to make the process of democracy work, and loves the intricate workings of the democratic system. A politician knows not only how to count votes, but how to make his vote count. A politician knows that his words are his weapons, but that his word is his bond. A politician knows that only if he leaves room for discussion and room for concession can he gain room for maneuver. A politician knows that the best way to be a winner is to make the other side feel it does not have to be a loser.

-- Richard Nixon's eulogy for Senator Everett

Troy Davis Clemency: Death Penalty Positive?

The theory is offered here and it has a bit of bite. 

Goudy-Bachman ACA Ruling

There is a well known (for those in the know) comic strip concerning the person stressed out that someone on the Internet is wrong, believing it is his/her duty to prove it.  I fall under this spell at times and certain issues really touch my buttons in that department, leading me to start taking breaks from various blogs that specifically stress me out in that sense.  The ACA, apparently the true threat to freedom for some people (as limiting abortion rights, inequalities inflicted on gays, etc. do not, such selectivity leading "libertarians" to favor Perry over Obama), is a major cause of annoyance here. This includes the use of the term "Obamacare," when actual Medicare isn't named after LBJ, who had more to do with it than Obama did the PPACA.

Three appellate courts decided on this issue and the majorities of two (the outlier the conservative 11th, where a Reagan appointee took the Charles Fried sane route) held (or in case of the 4th, argued, the cases decided on standing) it to be constitutional.  The standing route might actually be what is used by the Supreme Court, having the added charm of being the most reasonable route in deciding something that would not even be applied for years.  Now, there are various parts of the law that are in place now, though some on the left who complain Obama et. al. didn't do anything of note repeatedly ignore it.  On the don't worry about one Internet idiot front, unfortunately, this reflects the thoughts of a certain group of idiots. 

Most of the excitement here has been over a single aspect of the law -- the requirement of some people to pay money (collected by the tax system -- the law goes out of its way to take other routes like garnishing or seizure of property out of the picture) if they don't have insurance. Not a particular brand (like all those "GM car" or broccoli hypos), mind you, and lots of people do not even have to purchase or even have insurance.  The idea that the insurance requirement ("mandate" never used*) holds even if you aren't penalized (and various people, such as religious dissenters, aren't covered even there) is silly, since if you don't have anything done to you, what sort of burden is it?  All the same, other aspects (again, there are many more provisions) are affected as the recent district court ruling showed, if the insurance tax/penalty falls, "provisions mandating community rating and banning exclusions based on preexisting conditions are also [logically] void."

Is it not fitting that "Bachman" is in the title of the case?  The argument, working off the summary in the previous link, is telling, if tiresome in a "yet again, this is b.s." sort of way.  The exception is that the court, as did the one appellate court that struck down the provision (the so-called mandate; see footnote), rejected the action/inaction test that is brought out by some opponents as a type of golden rule that unfortunately for them no one really heard of until recently.  Still, the judge tries to find some other artificial dividing line (that arguably is the same line in new dress) to limit the government, since without it, apparently the Commerce Clause won't have a limit or something. The fact that the legislation already has limits (e.g., regulation of an economic interstate market) is not good enough. Some new limit much be found.  The message I get from the summary is that Congress should not try to be innovative since new legislation will be struck down since old powers are being used in new ways. 

I remain convinced by analysis, including each opinion in this case, that refutes such arguments for the unconstitutionality of the ACA provision.  Regulation of those who are not "in" the insurance market can be in place if necessary and proper for the overall security of the market, particularly if it is eminently reasonable that the person will enter it.  The choice to risk it and go it alone DOES affect the interstate market. The person who does so also chooses to be involved in alternative commercial activity with an interstate reach, particularly the average person who does so while working in some business that falls under federal powers over commerce.  The health market in particular is so, providing one of many limits, and unlike mere possession of guns near schools (Lopez) or violence against women (Morrison)  has a clear interstate reach. 

I don't think this is a close constitutional question, even if one thinks the policy at stake is ill advised.  The tax argument, even though most of the judges have avoided if not rejected it, remains in my mind quite strong as well.  Suddenly thinking this is that nebulous thing (outside of a few things), the "direct tax," or some other convoluted argument is not convincing.  At some point, especially given the insistent tossing out of canards ("everyone" has to "purchase" insurance, forcing us to buy something from private vendors is somehow unconstitutional, some sort of horrible "commandeering" is going on here, people really aren't in or directly affecting the insurance market enough to federally regulate it ["ridiculous to so claim!"], this isn't a tax, etc.), it gets annoying.  "Obamacare" is a well used trope by the Republican Party in particular as if helping millions to have health care in a way that if anything is too conservative is some threat to liberty.  It is outrageous. And, badly reasoned constitutional law. 

Anyway, same sex marriage and the ACA business is getting mighty old.  We need new fodder. But, that is not how it works, huh? The same old themes tend to come up again and again. 

---

* As the helpful ACA Litigation Blog notes regarding the recent district court ruling striking down the provision: "There actually is no mandate as such. Individuals actually are not required to acquire health insurance. If they so choose, they can pay the applicable penalty instead."  [See here for the discussion of the update, though I think the point still holds. The two are connected.] 

My Dog Tulip Extra

The making-of documentary provided some insight on the author, including how he saw sex (a major part of the book) as a way to make his true friend (Tulip) happy, an outlet for his own search for a true human friend.  The film/book We Think the World of You (only semi-fictional) also provides insight, including how he got the dog.

Supremes Have A Bit of mid-September Business

The application for stay of execution of sentence of death presented to Justice Scalia and by him referred to the Court is denied. The petition for a writ of certiorari is denied.

He (seven years after this) was then executed.

Cannery Row / The Conspirator

I saw the film Cannery Row, based on two John Steinbeck novels (it was in fact largely taken from the sequel, Sweet Thursday) not too long ago. Ah the wonders of easily obtainable films (again, the library approach this time). It had various familiar faces, with Nick Nolte and Debra Winger (as the love interest, again taken from the sequel to the original book) as the leads and character actors such as M. Emmet Walsh in support. John Huston narrated, providing as with the rest suitable character and flavor.

The film as a whole was somewhat disjointed with Nolte not quite working as "Doc." He seemed a tad too passive and unsure with the role at times and the bearded original seemed better suited for another actor, though his voice did seem to fit the role. He does okay though as does Debra Winger, who again might not be who I would pick for the floozy (such is a fitting word for the milieu here) he falls for. Winger has that affected delivery at times that seems a bit phony, but they still make a good couple, and the film as a whole is a nice lark. As noted, it feels right and the supporting cast are fun. The film does have a feel of being a collection of vignettes at times, but that's fine. It is well worth a look.

Having read the books now (almost finished the second), the film is overall fairly loyal to the Depression Era story of bums, whores and a marine biologist running specimen supply service who found a home for himself among the others on "Cannery Row." The guy running the store (the sequel version) was more active in the book and the guy apparently destined to run for President wasn't black but the general story is the same (the sequel takes place about a decade later, but the film combined the two). The books, of course, are able to handle more ground. I have read Of Mice and Men, but none other of this author. I enjoyed these, a sympathetic look at the types the Bowery Boys might appreciated.

---

To toss it in, I also watched The Conspirator, which focuses on the military trial of Mary Surratt, who was involved (somehow) with the Lincoln assassination. I recently read The Assassin's Accomplice to help prepare myself for the film, a book that argues that she clearly did conspire with the others. Her son was a Confederate courier and clearly worked with Booth in some fashion and she even delivered field glasses to an associate on the day of the murder. After the heat of the war passed, the Supreme Court held such a trial to be unconstitutional and when her son came back to the country, the jury hung on his guilt. Even here, the panel was hesitant to give her the death penalty. Some time in prison was probably a suitable punishment.

Robert Redford, director here, sees parallels with the current moves to not provide regular trials on alleged terrorists. The months after the murder of the President as the last bits of the Civil War died out is a bit more serious, particularly before current ideas of civil justice. Of course, the fact American citizens were involved (and a woman -- the first woman executed by the federal government) adds another wrinkle. I do think a civil trial was appropriate, though there was some belief the Confederate government was involved. Even there, it would have been treason, and the Supreme Court case (Ex Parte Milligan) didn't let that stop them. The trial's result was not really a travesty of justice (not saying it was okay, but there are degrees) all things considered, though Mary Surratt was something of a weak link (some hints they actually wanted her son, but he wasn't much involved with the final plot).

The book was a somewhat brief account, but was useful in telling her story. I asked a person familiar with the era if there were any good books on the case and he said that there actually weren't too many out there. As to the film, which (as is often the case) actually focuses on someone else (her young lawyer), raises various things that the book touches upon. It looks good and seems to re-create the era and trial convincingly. Some effort was made in that department. And, it isn't some total whitewash -- she lets out she knew about an earlier kidnapping attempt and the bottom line was that there was reasonable doubt enough to be uncomfortable with the use of the military tribunal.

Dramatically, it was good, but somewhat disappointing. It didn't seem to have that extra spark; it seemed sorta educational, not too surprising. I didn't even recognize Kevin Kline was Edwin Stanton though -- looking closely, I saw him, but the first go along, no. The cast as a whole were impressive. I would recommend it, since it is still a good film, but I was somewhat disappointed.

Say it 100 Times, Fiction is Still Fictional

"that the extension of Commerce Clause power to the pre-transaction stage would eliminate 'judicially enforceable boundaries'"

More b.s. on the ACA. There are plenty of boundaries. People covered transact. N/P Clause? It's a fraudulent line and I'm tired such things.

What Did Obama Do?

A very intelligent post. But do you really think that presiding over the passage of a national health care reform bill that defied the efforts of presidents since Theodore Roosevelt is not a success? Do you really think that finding and killing the head of Al-Qaeda and mastermind of 9/11 wasn’t a success? Do you really think that negotiating the successful ratification of a START treaty with Russia after repeated efforts by Republican to block it wasn’t a success? Do you really think that appointing two members of the Supreme Court and winning their successful confirmation by the Senate wasn’t a success? Do you really think that the repeal of don’t ask don’t tell in the face of determined Republican opposition wasn’t a success? Do you really think that helping the Libyan revels to defeat Gaddaffy without a single American boot on the ground or a single American casualty wasn’t a success? Do you really think that being elected (by a healthy majority of voters) as the first African-American president in history wasn’t a success? If you deny that any of this was a success, you have a different concept of success than I do.

-- comment to "Lincoln as Founder of Republican Party" thread

Useful to have a nice summary to address those on both sides of the political divide who make as if Obama is some total loser.

Gunfight

What is especially ironic is that the strongest support for Scalia’s position comes from acknowledging that the Second Amendment, like the rest of the Bill of Rights, has been “dynamically” interpreted and has taken on some quite different meanings from those it originally had. Whatever might have been the case in 1787 with regard the linkage of guns to service in militias—and the historical record is far more mixed on this point than either Scalia or Stevens is willing to acknowledge—there can be almost no doubt that by the mid-19th century, an individual right to bear arms was widely accepted as a basic attribute of American citizenship.

-- Sandy Levinson (of "The Embarrassing Second Amendment" fame)

I share the overall sentiment on the Heller case -- sound result, somewhat questionable path taken to get there. The general public not quite caring about the legal dynamics of the question, special pleading on certain issues notwithstanding, this is not that bad, as Dilan noted on that thread. But, the problem is notable, particularly if we do claim to care about the legal details. I think the Second Amendment is concerned with a specific use of "arms," the individual rights view did become the dominant understanding over time but the issue there is more a separate important liberty that need not be based in the Second Amendment as such (dissenting opinion).

Either way, for those who want to know the historical background of the issue, Professor Adam Winkler's new book, Gunfight: The Battle over the Right to Bear Arms in America is a good read. Prof. Volokh, of the same name blog, has a positive blurb, providing a blessing from the reasonable libertarian side of the issue. The book has a centrist sentiment -- there is clearly an individual right to keep and bear arms, but reasonable regulations are clearly allowed too. History (let me tell ya) showed this to be true. And, a ruling saying as much can provide a moderating tone to the issue.

Winkler tells the story well, starting with the Heller lawsuit and using it as a launching pad for different moments of history. Look! The NRA started as a gun regulation organization of sorts, only becoming the knee-jerk reactionaries they are now in the 1970s. Darn if D.C. was foolish to be so knee-jerk the other way. Down to earth account, a quick reading three hundred pages. It at times simplifies things a bit too much. For instance, Scalia's advisory section on legitimate gun regulations is backed up somewhat. The strong proponents on the gun control side is not quite as knee-jerk as portrayed in an early chapter. And, the book takes very little time to actually address the Heller opinions. I think, even given the limits of space and audience, a few clarifications could have been made.

Overall, however, it is a good book and a worthwhile addition to the major opinions as launching pads to examine major issues cottage industry out there. I particularly enjoy the genre because it provides a window or platform to address various important themes and issues. This is a useful way to educate and specific days, events or rulings are good ways to handle this sort of thing.

Upcoming GPS Case

The NYT has an interesting article on an upcoming Supreme Court argument respecting the limits of warrantless use of a GPS tracking device, an issue Fourth Amendment expert Orin Kerr has addressed in various cases.  Time to update privacy rulings to the 21st Century.

My Dog Tulip

The "making of" documentary was charming but I couldn't really get into the actual film.  If one is in the mood for the simple animation, good voice work and basic old  man/dog story (loyal to book), it was perfectly fine.  But, I guess I wasn't in the right frame of mind. 

Hat issue

The Mets in '01 wore caps honoring police etc. agencies and wanted to do it again, but MLB didn't like it.  Seems pretty petty of them & yeah, I think it would have been nice if the Mets said screw 'em.  Instead, Wright wore one in the dugout for a bit.  Gutsy move there!

Sunday NY Sports

Giants played a bad second half, Yanks came from behind, Jets cost Dallas another killer loss (goal line stand & blocked punt helped) and the Mets didn't score late, totally falling apart in extras. Lousy Cubs series -- yeah, I still care.  Apparently, a bit too much.  Grr.

Pathetic

The Mets losing to the Cubs, including a save being blown, helped by FOUR errors.  And, not by back-up players.  Parnell isn't that off the hook though.  I don't trust him as closer. 

Lincoln as "Founder" of Republican Party

I note here the controversy over this passing mention in Obama's jobs speech is stupid on various levels.  (1) It isn't wrong, whenever it was said. (2) Harping on trivia is stupid. (3) It does provide a great time for the cheap shot crowd. (4) All gaffes aren't created equal.

More on 4th Cir. ACA Ruling

And Also: Rango looks good, but I got bored pretty fast, it seeming something like a vanity piece best appreciated stoned or something.  If it got better, my loss, I guess.

Yesterday's ACA opinions were interesting in that they covered a lot of ground -- standing (not surprising a former Scalia clerk wrote that paper concerned with too loose standing requirements), taxation issues (both pursuant to statutory jurisdiction issues and on the merits) and matters of interstate commerce. Toss in a brief reference to other liberty interests dismissed as frivolous, the only major issue not covered is the Tenth Amendment concerns involving Medicaid rules and such (which even the 11th Circuit, that struck down the insurance provision deemed unconvincing). If it wanted to, it even could be used as an avoidance mechanism by the Supreme Court until the provision actually is put in place. After all, conservatives think that should be true for many abortion regulations and such.  As compared to waiting until after actual women are harmed, this surely to be underenforced fiscal measure that might be changed before it is applied is where waiting makes a whole lot of sense.

Volokh Conspiracy has been a place to go to read various accounts against the law, or rather, mainly one specific aspect of it. The so-called "individual mandate," though the word "mandate" is not in there (the same people very concerned about using the word "tax" don't find this too troublesome; others keep on saying "everyone" has to "purchase" insurance under the provision, though this is wrong too). Orin Kerr, who coyly said he doesn't like current Commerce Clause jurisprudence but won't say how he would change it, defends its constitutionality under current law. He is on record against the provision as policy. Others do not. Below is my answer to one of the constitutional opponents on the lesser used tax defense, first addressing a comment made on Virginia's standing.

It could have taken advantage of the “special solicitude” for state governments that the Supreme Court established in Massachusetts v. EPA.

The “special solicitude” there wasn’t freestanding but connected to the state’s own concern for the effects on their territory. The same interest is not present here. Preventing states from trying to nullify federal laws in this fashion can very well have some bite even if alternative litigation is present to address the provision. See, e.g., an article by an ex-Scalia clerk on the importance of this litigation. The alternative is that states could challenge any number of federal regulations, from the left to the right, via mere declaratory pieces of legislation that in effect makes individual states constitutional law courts. Not really what Art. III had in mind.

The “tax” here is like many types of tax policies where someone has to pay more money (like the “marriage penalty”) if they do or do not do something. Like them, they can depend on such things as income or purchase of certain items or certain choices made. Tax policy “force” or rather encourage in various ways people to buy many items. I realize many don’t like these policies very much, the opposition to the marriage um penalty is well known, but they are both constitutional and not unlimited, both politically and constitutionally.

If a tax is ONLY applied if someone makes a certain income, yes, it is tax based on income. BTW, fines for jaywalking — unlike here — are not merely collected via the tax system. The tax also can be seen as an excise, since arises from certain choices and/or actions one makes.

The tax is not on those merely existing, like a direct tax, but is based on certain actions and choices done. The economic activity here is buying insurance or making any number of other economic activities and transactions. The dissent in the Liberty case underlined the fiction that no economic activity was present here.

The concurring opinion in the Liberty case is convincing. The Commerce Clause argument might be more popular or stronger (debatable) and it is enough. The overlap is apparent anyway, since again we get claims of no economic activity etc.

Anyway, in the past thread, a complaint was made that these rulings weren’t taken seriously because it didn’t strike anything down. It’s appreciated the other side put in their .02. 

[The threads were still pretty inactive vis-a-vis anti-ACA rulings, even with an interesting additional issue added to the mix here. Artificial line drawing on what is a "tax" is the most recent addition.  We fought a war over this folks!']

ACA Lawsuit Rejected On Standing Grounds

Virginia's nullification attempt failed, a personal suit deemed premature. The second ruling in particular furthers the often ignored tax power argument, especially the concurrence; the dissent would uphold via commerce power on the merits. Good reads.

From the "you aren't serious, are you?" file

SCOTUSBlog's round-up today included an op-ed starting:

Clarence Thomas' greatest sin was that he wasn't the second coming of civil rights icon Thurgood Marshall and had no interest in pretending to be.

If a moderately conservative black judge without his baggage was appointed, same problems? Uh no. Read the Greenhouse op-ed too.

Wednesday TV

Necessary Roughness - helped by more good guest casting - was enjoyable again. Fun with a bit of seriousness. Missed the debate; my take is that Mitt is the Kerry (safe/dull/seems a bit phony) of '12 and he is more dangerous than Perry in 11/12. Better if he loses before.

Troy Davis

Is it the end of the line? We shall see. There is enough doubt here that not commuting his sentence to life (if possible) is very questionable. Execution twenty years later is dumb anyway.

After Midnight Baseball

As for the Mets, Mr. Paterson, who is legally blind, joked: “Sometimes I don’t see the game as well as everyone else, and it’s just the better for it.”

Messy game last night, but yeah, I still watch. Miss America singing (doing a good job) at Yankee Stadium at 1 A.M. in the rain with her crown on (looking good): that's a gamer.

My Dog Tulip

J. R. Ackerley is an interesting character; this book (later an animated film) is about another. It is not a complete account but touching & well written. Not sure why half of it concerns the issue of mating though it might have some broader meaning.

Drop Dead Diva

Another good episode with a particularly (in a novel touch) good finale showing what the various characters were doing. Again, Kim has a good subplot. Looking good too. Decent upcoming Good Luck Charlie; Teddy's subplot was somewhat forced. Charlie growing up!

But, besides that, what did the Romans Do For Us?

The latest in the lack of perspective sweepstakes is criticism of Obama's move on stricter air standards, which very well might be bad (how bad? I don't know) if made under the stress of various pressures, while ignoring everything he did right. He just "caves" on everything!

Interesting Idea to Limit Judicial Terms

This proposal to have justices serve eighteen year terms and then be a sort of back-up plan is intriguing.  I'm iffy on it being constitutional. What if justices could only rule on most cases for two years?  As a voluntary move, it has more going for it, like "senior status" below.

Lebanon, PA

Another good film with punctuation in the title. Seriously, the abortion subplot (covering different angles, including a trip to Planned Parenthood and a Crisis Pregnancy Center, the commentary citing a documentary to show the accuracy of the dialogue) is but one aspect of a worthwhile indie. I have voiced my annoyance that abortion is not properly covered in fiction. This is a good exception to the rule.

The main plot involves a somewhat selfish thirty-something that has something of a life crisis while handling the death of his dad, who was a schoolteacher in the title conservative working town. The film is good in not making the characters stereotypes, particularly a distant relative (and practicing Catholic) who is raising his two teenage children alone, one of whom is the girl mentioned above. His wife died from complications of having their younger child, choosing to carry out a dangerous pregnancy, so it is not surprising he is no fan of abortion.

Meanwhile, the ad man meets a local married school teacher (well played by Samantha Mathis -- strong cast) with problems of her own. Will feels a connection, not thinking about the problems raised given her situation. It is notable in this day and age that Mathis' character smokes. Apparently, unlike here, you can smoke in bars in Lebanon. So, we have a pretty busy plot here though Will (with various things going on, including dealing with his mother, Mary Beth Hurt again a good addition to the cast) and CJ (the girl) basically have equal time. Overall, though not totally, all of this (various characters have key scenes; the father talking to the daughter about her mom's choice a high point) is juggled fairly well.  Enough here for a novel, probably.

I recall one review noted the lead character isn't that likeable. But, that is part of the point -- his experiences here humanizes him without any particularly unbelievable big changes going on. Overall, it is a good bit of movie making, the effort involved discussed in the commentary. [The commentary was interesting and well told, but I grew bored eventually.] I watched this on DVD to fill the time. It took five years to make. It is amazing to think about how much time and effort is involved in each of many films that are made, some like this only seen by a limited audience. This type of dramatic storytelling, with scenes from an ad agency to a college visit, is one reason I enjoy watching movies.

Samantha Mathis was in a pretty good movie entitled Pump Up The Volume (moment in history: my first published commentary was a letter to the editor about the 'R' rating) twenty years ago. Good to see (see also, "Rizzo" now on The Closer) she is still around.