Sports Update

Jets kept it close vs. a decent team (Bears) until their defense could no longer do so (injuries helped to limit much offense). Giants are again 1-7, Redskins mediocre enough to only add the second score margin until late in the game. Again, parity and some talent meant they really had a shot at a win (in two games, really long field goals doomed them). A late mistake doomed the Packers who gave no loss Rams a run for it. The Red Sox could have swept except for a 18th inning loss helped by errors and such in Game 3. They won in 5. Not great playoffs overall. Mets have a new GM. Let's see how much it matters. Basketball was played.

Few Links

The whole Electoral College thing isn't working, so maybe finding swords in lakes and such will do the trick. Current craziness can be helped by looking at old mental health films, thanks to the Library of Congress. Finally, a callback to Howard Cosell responding a famous protest, compared to current kneeling actions. And, Shaggy on money PTB types.

Justice O'Connor Steps Away From Public Life

After a long life in public service, including some years after her retirement from active SCOTUS service, O'Connor released a touching letter to the public (after being out of public view for a while) formally stepping away for health reasons. It underlines the importance of civics (her cause after retirement) and each justice replied. I'm not sure why her letter isn't posted on their website. It is (as Souter's reply notes) quite timely. Some think her vote in Bush v. Gore tarred her forever. But, I respect her public service and overall sanity.

Meanwhile: This move is basically a limited one with a specious Trump enabling partial dissent by two likely suspects, but it pisses me off they (yet again) don't explain themselves. You are delaying oversight involving the census that the lower court accepted. WHY?!

SCOTUS Watch

Tony Mauro reports for The National Law Journal that “Supreme Court Justice Sonia Sotomayor said this week that the arrival of Brett Kavanaugh has been greeted with the traditional ‘welcoming for a new member of our court,’ adding that “we are going to let these times pass,’” an apparent reference to his stormy confirmation process.”

She's stuck working with the guy, now given the 7th Circuit. I'm not so rather not since that is the route to repetition. I sent (seriously) a letter to the liberals and Roberts on the Supreme Court putting them on notice. Meanwhile, Roberts did his usual sales job, including opposing televising the court (in general though orals are emphasized) in part since it's not their job to educate. That's why he's out giving interviews. I think it's part of their job, but either way, it can be done and helps their main job in the long run. An uneducated public inhibits it.

Baseball and Books

Couple late nite finishes in the playoffs and neither ended well in my eyes. Brewers still need to just win two straight.The Endings is a good idea, well done: photographs that tell a tale of loss for various women, a few portrayed by well known actresses. I'm not sure how far I'd take it but Why Honor Matters is at least an intriguing read up to a point. For instance, the Republicans during court battles to me in part are dishonorable -- in your face -- and Democrats need to factor that in when responding. Pragmatics need to take that into consideration as seen by the negative reply to a recent "compromise" that I'm not alone confused about the value of. But, not sure how far that is a matter of "honor" exactly.

ETA: Another team I preferred was eliminated, the Astros only winning one, in part thanks to a bad call and great catch at the end. Well that was Game 4, but it sealed their fate.

A History Of America In Ten Strikes

I added this to the side panel and went to see the author talk about it. He is a character and has good stuff (including his grave visits and labor history series) at LGM -- strong lefty but with signs of reasonableness among the bluster. I liked the book overall (lot of material; at times had to only summarize). My overall idea is that if we are all workers and unions are so essential for fairness, what about making them mandatory, at least in certain areas with particular interstate commerce salience? Cf. public accommodation rules. Not optional. The importance for regulation of unions for economic peace was relied on in the 1930s. There is also a "free labor"/13A argument out there. The "choose to join a union" approach exists where free choice is at best imperfect. Unions provide a necessary resource. Too commie?

Trump Court Watch

There was one more time for people like myself to be upset at the Kavanaugh confirmation process when there was a ceremony at the White House last night. As of the Braves games wasn't annoying enough. (Three native named teams played; all had bad games.)

As argued here, there is an unseemly political aspect to this, especially after he already took his constitutional (Art. VI) and judicial (by statute) oath on Saturday. Of course, with Trump ("I apologize on behalf of the American people ... found innocent") and Kavanaugh (his usual b.s. including starting by sucking up to Trump and name checking various people he thanked, showing how neutral and above the fray he is) this rubs salt in the wound.  For whatever reason, it was handled differently for Sotomayor and Kagan (see op-ed) and that is how it should be.

So, after around a week, there is a full Court for the term. There were orders today (Justice Sotomayor put forth a statement concerned about solitary confinement, something Kennedy also flagged near the end).  And, oral argument (Kagan next to Kavanaugh) in two statutory cases. There were reports it was "jovial" with Kagan joshing with Kavanaugh and (per another report) Sotomayor even pinched Gorsuch (who she sits next to) to make a point, which he found amusing.  Being a grumpy sort, and not having a lifetime appointment with these people, this bothers me somewhat. Someone on Twitter argued:

The deed is done and there's nothing she can do about it. This is how adults, and professionals, are supposed to behave. You make the effort.  You make the best of a bad situation. I would expect nothing less from the decent people on the court.

The person appeared to be someone concerned with Trump at least, not some above the fray sort.  Another critic, a liberal leaning legal analyst, said that Kagan is there to make deals and so forth, and disgusting he might be, but that's how you need to play it.  I realize there are various ways to fight the battle here. You have to live with these people and work within the system when you have certain roles. Emotion alone can't rule.

But, sorry, it's too soon for such a public joshing with someone around ten days ago or less was seen as an unhinged partisan liar which the evidence suggests is also a sexual abuser of some type.  That's just me.  I need time.  It's still raw.  I for one am able to somewhat calmly talk about Thomas. Some still can't.  Time passed. Apparently, there were a few protestors outside, but no incident inside.  I find this disappointing. Again, it just happened.  When usually calm analysts like E.J. Dionne talk about needing to remain angry, the Court itself has to be reminded that things aren't okay. A public presence, reported by observers, inside would be a reminder. Instead we get reports of how "jovial" it all was.

I am not a fan of talk of packing the courts, but long term, things have to be done. The end of the filibuster for executive appointments (even if we can debate how the Supreme Court is handled) to me was necessary given how the system was abused under McConnell.  The request for calm, sometimes but not always by those comfortable enough (even if they find some of it distasteful) with the judges in place, only can be taken so far. For instance, there will be a demand for investigation of Kavanaugh if the Democrats win the House. This might seem unpleasant, but that is what happens when the first process was so flawed.

Along with continual press investigations and other types of additional ways for stuff to come out, this will call attention to the Supreme Court. For good or ill. More so than after Gorsuch where the handling of the Garland Seat lingered on without as much concrete things happening. We will hear about proposals for term limits or a full court with only a panel of nine etc. And, the "let's be reasonable" bunch need to have so limit. What about if RBG and/or Breyer are forced to resign?  Will they act the same with a 6-3 Court?  The first two seats are tainted. Sorry. It's a fact.

One moves on and figures out what to do (including like water finding an outlet, getting protections that the a better Court might bring some other, if more flawed, route).  But, like with Gorsuch, me personally, I am not fully moving on.  Respect has to be earned and if a process is tainted and/or the courts act badly, there is no special obligation to give them the same respect.  Sometimes, this will hurt, but a 5-4 Court with Roberts in the center will more often have results where that taint will benefit in the marginal cases.  And, yes, focus on elections.

It isn't all elections though. We had every right to find the process broken and even yes unjust and in some fashion illegitimate even if he got two more votes in the end.  Might does not by itself make right. This isn't naive. Power matters a lot. But, it also comes in various forms. Trump being tainted with strong public opposition matters and weakens him. Even if he won in November.

Malicious

With the usual cheap looking copy of the film ala Youtoo America, the latest bad late night film is a mid-1990s somewhat erotic thriller with Molly Ringwald (basic cable, so need to search to see her breasts) and some character actor playing a cop being the only faces that are familiar. Not that any of them act very well. Molly's character screamed "stay away, she's a nut!" when she meets the hero at a party. Maybe, his girlfriend shouldn't have been such a prude when they kissed in the library (the second time, HE was the run who cut it off). There is actually limited bloodshed, no real surprises and it is relatively painless bad film fun.

SCOTUS Steps Closer To Illegitimacy 51-49

[Cloture was today but senators made their opinions know. Final vote tomorrow.  Things were delayed into late October for Thomas. Looks like over twenty-five years later, for someone with more baggage, it will be a lot quicker. If more ugly. The final vote was Saturday and was 50-48, Murkowski voting "present" to balance off a "yes" who was at a wedding.]

Yale. Thousands of law professors. The Jesuits. A progressive leaning church coalition. Retired Justice John Paul Stevens. The ABA. Some old drinking buddies and his former college roommate.* But, like Lincoln's comment about preferring God on his side but needing Kentucky, beating Kavanaugh would require two Republicans senators. 

We got  one. Thanks, Sen. Murkowski, who made her position known by voting against cloture. Earlier, Sen. Heitkamp -- a very at risk red state Dem -- joined others in opposing him.  Sen. Manchin balanced off the gentlelady from Alaska by voting for cloture. His vote was mostly symbolic since Pence could have broke the tie anyway.  Still, annoying he voiced Republican "don't really believe the women" garage doing so.  Something, opponents should honestly face up to that many (white) Republican women share. And, Collins gave him cover. Doubt he would be the 50th vote.

It seems that Kavanaugh's Trumpian appearance (followed up by a partial walk back in a Wall St. Journal op-ed [as neutral judicial umpires do], which was all "me me me," not doing something like separating himself from Trump's ridicule of the victim's memory ... fictional at that as Colbert neatly did by comparing the two)  worked.  I don't know how much really as compared to convincing people who really didn't need to be anyway. It's hard to see to me his act convinced many senators though it might have attracted some of their base.  Which politically might be the same.

I rather Democrats don't get too many ideas about acting like Trump. We saw with Marco Rubio that those without quite the skill or stomach for that won't do well. Plus, it's a seedy strategy that debases you in the long run. I hope that is also pragmatically a bad idea for the progressive side.  Long term, yet another decade (from 1969) of a conservative majority, now without a true swing vote, might require some hardball.  I was not overall appreciative that doing so was compared to segregationists.  Long term, how much did that work, really?  Anyway, starting feeling a need to be a bit apologetic is a tad troublesome.  Some concern here is a good thing, but only up to a point.  Framing and mentality matters here.

There was two letters signed by law professors against Kavanaugh, one lesser known one (deserving more attention) from over six hundred female law professors.  Some opponents decided not to sign the letter for whatever reason, which is fine, though a major point here was the opposition alone as compared to specific details.  The author there has opposed Trump in particular as lacking a basic republican character so should get less discretion.  I think legitimacy comes from one's actions. We are a constitutional republic, a limited government, and merely because a majority under the system in place elects someone, that isn't enough.

I like democracy more than some people, but our democracy is of that sort. Elections do add some benefit of the doubt. The "presumption of constitutionality." I don't think Sandy Levinson's co-authored article was overly convincing there as to Trump though Trump's actions give enough evidence to have the courts in various cases to overrule that presumption. Others trust the people in power more, in part because they have the right enemies. Philosophically, that's understandable.

The system provides checks. One is the Senate. I have voiced an opinion on the senator's oath. Again, that is different than raw power. Many from the beginning voiced some concern for that oath and the responsibility it brings. I think it failed today. It wouldn't be the first time, but I think the case here was pretty blatant. Senator Murkowski and others have the insight on what it might breed. Some have warned that we have been on a road here from some time.  I do think there is a limit though.** 

And, [a person in the "opposing" thread linked] references the role of others, who have some importance in aiding and abetting the system in place. As with segregation, it doesn't work merely because of the governmental actors. The letters was a late awareness of what was at stake that should have been put forth earlier. The evidence was there before that Thursday hearing. It was not truly a surprise, but a stripping of the veneer.

We live in interesting times. As usual, that is something of a curse.

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* Or, as one tweet noted: 2400+ Law professors —The ACLU —Amnesty International —Former Justice John Paul Stevens —The Jesuit Society —National Council of Churches — Washington Post, USA Today, NYT, and LA Times editorial boards —70% of Americans.

** I found a comment from the mid-Bush years saying I was too naive about how the courts operated. I responded that I try to be realistic while still pointing out how I think things should work. Hopefully, things fall in the middle. The person also a long time ago said I sounded like a law professor.  Depends on what one.  (A law professor liked that comment on Twitter. Ha!) 

SCOTUS (7/8 Legitimate) Update

As talk of a sham additional FBI investigation on Kavanaugh continues, what are the justices thinking?, the 2018 October Term began. Long order list to add to recent case developments, long in length, but nothing apparently too notable (no grants). Last week, in the midst of the hearing, another death penalty final appeal was tossed out without comment. Somewhat low temperature cases to start (though a death penalty case is up) though agency discretion and property rights provide some juice. Opening should have been televised.

Sports Update

The Mets had a bad swoon from sometime in May to June and a .500 July. Since then, especially in September, they had a good run. David Wright's final game on Saturday was very nicely done. Reyes' possible final game on Sunday was somewhat less notable. Some fun games (including two decided in the final seconds of OT) but not on the NY side. Two tie-breakers in baseball today though I rather they use a tie-breaker based on record.