More SC Opinions

Ayotte Abortion Case: The Supremes unanimously remanded which was listed as a potentially important (with audio broadcast on C-SPAN not too long ago) abortion case involving a New Hampshire parental notification law without a "health" exception (and, arguably, an insufficient "life of the mother" exception plus another more minor problem). The decision, instructing the lower court to try to find a more limited solution than overturning the whole law, is not really surprising. Overall, it should not upset pro-choice groups too much, especially since the law continues to be held in abeyance until final judgment. One does not even know if this foretells how abortion will be treated the next few years, but the votes are there for such baby steps to be the rule.

It is a bit surprising that there was no other opinion. The ruling really made no new law, though it might send a bit of a message to not overturn statutes like this one if possible, even if the law clearly had some unconstitutional applications. O'Connor wrote the opinion, one with a sensitive footnote* on how judicial bypass was necessary because not all teens had parents able to give them the assistance such notification laws intended to provide. The comment was not really necessary, and perhaps was drafted by one of the two liberal clerks someone noted that she had this term.

[Another take, which also suggests why overturning the law might be the sound way to go after all.]

SCOTUSBlog described another decision today that was decided on procedural grounds, the defendants losing the right to take in effect a second bite of the apple, given they already lost the first time around. The alleged facts are particularly sympathetic, but law is law, I guess:

The complaint alleged that Susan Hallock and her husband Richard owned and operated a home computer software business. After Richard's identity was stolen and his credit cards used to purchase online child pornography, Customs agents obtained and executed a search warrant on the Hallock's home and seized their computer equipment. Although the seizure did not result in criminal charges being filed, when the computer equipment was returned much of it was damaged and all the stored data, including trade secrets and account files, was lost. As a result the Hallocks were forced to close their business.

Also, in a third case, Justice Breyer obtained a second vote for his move to do away with peremptory challenges. Interesting idea, but I continue to note the sound reasons offered on the liberal side for why it is a troublesome one.

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* Footnote 2: It is the sad reality, however, that young women sometimes lack a loving and supportive parent capable of aiding them "to exercise their rights wisely." Hodgson, 497 U. S., at 444; see id., at 450-451 and n. 36 (holding unconstitutional a statute requiring notification of both parents, and observing that "the most common reason" young women did not notify a second parent was that the second parent "was a child- or spouse-batterer, and notification would have provoked further abuse" (citation omitted)). See also Department of Health and Human Services, Administration on Children, Youth and Families, Child Maltreatment 2003, p. 63 (2005) (parents were the perpetrators in 79.7% of cases of reported abuse or neglect).

Interestingly, the Supreme Court never directly decided if parental notification laws (as compared to consent laws) require "judicial bypass" procedures that allow needy or mature teens to resist relying on parents. One (Hodgson) did require it when a two parent notification law was at stake. Others generally dealt with laws that allowed the justices to avoid the issue. This case clearly notes in the emergency situation here that bypass might be necessary.

But, this footnote appears broader in scope -- implying at least sometimes that a bypass is required "a loving and supportive parent" is not available. Clearly, just having a parent there is not enough. See also, Justice Stevens, concurring opinion in a previous case here.

Oregon Right To Die Case

And Also: With the kidnapped female journalist due to die in three days if all the women detained in Iraq are not released, my local paper had a story on press fatalities in the region in recent years. Depending on the numbers used, somewhere between around sixty and a hundred reporters have been killed. I admit, as a civilian, I can relate more to such deaths in a way than when the military is involved. And, it really hits home the risk these people are taking just to deliver us information, though of course they also surely obtain some personal satisfaction in such a career. It is humbling.

[The ruling below was written by Justice Kennedy, the soon to be or already in effect, "swing" justice. I comment on an article on his role and discuss this case here.]

The Supreme Court handed down a narrow ruling yesterday stating that Attorney General Ashcroft wrongly interpreted current law when he determined Oregon's "right to die" law wrongly allowed certain controlled substances to be used to end patients' lives. The NYT underlined that though some might understand the ruling as upholding a "right to die" or more narrowly to stop Congress from regulating such an issue, it did no such thing: in fact, Congress under the terms of the ruling could pass a law that did give the power to the attorney general to act as he did. Some might assume that the language used can apply to other examples of executive overreaching. And, not just libs so suggest.

I would find this troubling both as a policy and constitutional matter. This should not be a matter in which one way is mandated by the national government. Such is why the "partial birth" abortion ban was particularly troubling. States generally regulate medical treatment and interstate commerce is not really at stake here. (Of course, under current rule, nearly anything can be shoved into that phrase.) As to a claim made by a lower court, rejected on appeal in another case, the equal protection claim is also weak. The argument is that the Oregon law singles out certain people to be not protected by homicide laws. If this was damning, how could any law that allowed refusal of treatment (including actual removal of it in certain circumstances) be legal? It tries to prove too much.

No, comments by Justice Scalia in dissent that this is "obviously" not "legitimate medical treatment" aside, there is great debates over the proper way to determine such questions. Thus, the Supreme Court welcomed the states to try different ways to handle it, a statement reaffirmed in this very case. This might lead some to suggest that this federalist rule should be applied in other areas too ... abortion comes to mind. Of course, Casey already opened more doors in that area, and even here, past cases suggest states cannot deny patients certain rights to deny care or obtain pain drugs that might lead to their death. And, I do think we can separate abortion and right to die cases to some degree ... death to embryos and ninety year olds are not comparable in many ways.

But, sure, deep down, I believe that a person has control over their own existence. The issue was not directly at issue here, since the state law already allowed the practice. I will not be too cute though and deny that my federalist argument is at least partly strategic. The national ban is particularly troublesome, but not the only problem. We attack wrongs the best we can all the time ... dealing with the worse problem and allowing an opening for development of patient autonomy is a totally proper way to go. Rights develop over time and this one is no different.

Overall, it was a sound decision, while the dissents [see my discussion linked above] were dubious as well.

Some Media Related Thoughts

And Also: The Jets have a new coach (Eric Mangini), the young (think the boy genius of Tampa Bay) Pats defensive coordinator, who only has one year of that under his belt. I do wonder about his inexperience, but some in the know have high hopes about the guy. Well, who knows? Time will tell with the team on the field being especially key.

Abecedarian: I am a fan of the mystery writer Sue Grafton's alphabet series, though also feel an obligation (having gotten this far) to continue to read them until she reaches "Z." She is at "S" ... and a blurb in her most recent book described her "abecedarian" series. Yes, that is a word -- someone who is learning the alphabet. Learn something new ... and all that. For instance, "fatuous" -- a word unsurprisingly used in much political writing these days -- was a word I am much more familiar than I once was.

Waterboarding: Some months back, Andrew Sullivan -- a conservative leaning critic of the Bush Administration's treatment of detainees (aka human beings) -- posted a medieval carving that portrayed what is now known as "waterboarding" (again, that sounds actually fun ... sort of like water skiing ... some new extreme sport), one that labeled it as torture. This is the practice of pouring water down a suspect's throat and covering the face in such a way that makes the subject feel like he or she is drowning. It is a cruelly simple technique.

I was skimming through a book about "The Girl In The Picture" (young girl running nude down the road after being attacked by napalm during the Vietnam War), which did not really meet to my approval. The subject is something worth knowing about, but I could not get into the style and such. Strange journey: ten years or so after the attack, the Western media found her again, so the Vietnamese government used her for propaganda purposes, ruining her attempt to quietly go to medical school.

First thing, they let one of the original reporters take her to West Germany for additional surgery on her back (the picture in a sense is misleading, only showing her terror ... her terror arose from wounds on her back), she being alive in the first place because a privately funded Western hospital was willing to take her soon after the attack. Her recovery was a living hell, especially for a nine year old. Anyway, later she eventually wound up in Cuba, where she staid a number of years. And, finally, she went to Canada in the 1990s.

Her family at the time of the attack was basically middle class, arising from a successful noodle restaurant. The reason the attack occurred to begin with -- seems like there was some kind of mix-up that caused civilian casualties -- was that the family lived in an area with divided loyalties. Partly because of the family's religious connections, they did help the Viet Cong. And, the mother was taken in by the authorities at one point for a short period of time, and "questioned." One aspect ... this book was written in the late 1990s ... was pouring water down her throat and putting a cloth over her face so that she felt she was drowning.

[The Nation had various articles recently on our methods and at least one noted that current activities did not come out of whole cloth. They reflect past actions. This is only denied but those who do not want to believe. Unfortunately, this is an all too common sentiment.]

West Wing: Of the various long running shows still left on the air, this one is the only one that I really still watch. And, though it has its problems, I still generally find it worthwhile. A recent small subplot involved the President's son-in-law cheating on his wife (an appealing character), which led to problems because he is running for office, and the President was going to campaign for him. The wife let CJ know, without directly saying it, that she was aware ... but, still wanted the President to help him win. The husband, a weak man in more ways than one, needed the President's help. And, him winning office (with her truly the brain behind the throne) would be the best thing for her kids.

It was a sad moment, but one that rang true. We glorify marriage in this society as a wondrous institution, but sometimes we need to be more honest about how it plays out in reality. Sometimes, people stick together in marriages that leave a lot to be desired, partly because they decide it is the best way to handle the situation. It might upset some to admit this, and I know someone who was upset when she found out someone close to her made a somewhat similar decision. But, such is the real world. Like it or not. And, sometimes marriage is not the best decision. Sometimes marriage only worsens the situation, even if we make "compromises." Thus, forcing all teen moms into pregnancy, for instance, is not the best solution.

It is good for the media, including television drama, to face up to such realities.

Colts, Alitos, and Clueless Crocs

And Also: "Michelle Bachelet's victory in Chile's presidential election, the latest in a string of wins for left-leaning candidates down south." Amazing story really. Those in power now are of the ideology that supported the dictatorship that killed her father. But, darn if they care about freedom now. Depressing. Oh, and where was Gore's fire in '00? Darn, good speech.

Football: As to that Colts game, apparently that questionable review/non-interception call was based on some rule that apparently only the review official knew about. Anyway, it was telling that the Colts drove the ball from the end to end in the Second Quarter ... taking up over half the quarter in the process ... and scored all of three points. The Steelers probably gladly took that three. Again, Tony Dungy might be a great coach, but in the playoffs his skills are very questionable. Perhaps, you can blame the Colts players, but he did something similar while in Tampa.

[Update: The league admitted it was a bad call. Millions say "no shit," but this is dumb. You won the game. Shut up already.]

Alito: A Daily Kos post that matches my feelings on the Alito matter. A defeatist post that fails to face up to the fact that the Democrats still do not know how to properly "win a losing battle." To properly address such comments as these, written by a former co-worker of Judge Alito. The essay refuses to see that Bush crosses the line:

But if there are specific needs that justify exceptional practices under either law to secure the nation's safety, the president is right to see them as part of his constitutional duty, and the signing statement reservation ought better be understood as an effort to alert, not scuttle, Congress. The president and Congress have a common enemy, after all, and it is not themselves.

Yes, sometimes the executive can voice his/her constitutional views as they apply to legislation. But, Bush crossed the line, ignoring that the legislature has the power to determine certain actions are not legitimate "to secure the nation's safety." As Kennedy's Attorney General wrote today respecting wiretaps to listen into conversations of Martin Luther King Jr.:

Forcing the executive to explain its reasons for intrusive law enforcement is essential to maintaining not just privacy but freedom itself. A congressional committee must exercise oversight. So too must an independent court because Congress is also subject to possible political pressure.

Defending this viewpoint, one the people deep down seem to support, can be done now. This is a "constitutional moment" of sorts, a metaphor perhaps used during one of Senator Biden's musings (or by someone else), when the people as a whole can get into the business of discussing what our basic liberties mean.

Comics: I just love Pearls to Swine ... today the incompetent neighbor croc gleefully captures lawn ornaments, today a gnome. The demented smiles on the characters' faces alone crack me up. Sometimes, you need to laugh like that.

Not so fast smarty

Colts Lose: Playoff choke again ... down to the 46 yd field goal miss at the end after a terrible review overturn (soon leading to eight points) and sloppy/unforgivable (except when you win) fumble by the Steelers at the Colts' 2 when it looked like it was all over (with the QB stopping the go ahead TD). No big fan of the Steelers, really, but the Colts ... from all that pre-snap playacting on ... annoy me more. Stressful at the end, but great result.

Update: TMQ over at ESPN probably liked the number of Fourth Downs attempted today though a couple by Pittsburg were risky. Anyway, Chicago had a nice offensive attack, perhaps since Carolina never saw the QB (started one game this year), but the defense was lackluster. Oh, another bad call by the officials, though this time the replay worked (not that it really mattered in the long run). I predict one wild card is going to the Super Bowl.

…death penalty opponents are claiming a "heads we win, tails you lose" moment. Yes, we put a lot of time, energy, and credibility into this guy who ended up being a lying scumbag, but that doesn't prove anything. And logically, you're right -- except that it hurts the battle for public perception, which is the only real battle that matters for death penalty opponents. In that way, the staunch reaffirmances that "this didn't hurt" seem like whistling in the graveyard (if you'll pardon the metaphor).

Truth is, "logically speaking," it wouldn't matter to death penalty proponents if Coleman had been innocent. Sure, we all pay lip service to "better 10 guilty men go free than 1 innocent man be convicted." But we also know it's bullshit, or at least bullshit at the extremes. I absolutely agree it's better to err on the side of letting a doubtful guilty party go free, than convicting a doubtful innocent party. 10 guilty? Now you're pushing it. 100 guilty? 1000 guilty? Now I can't buy it anymore … you have to acknowledge that society and the justice system would break down if we took such extreme care to avoid convicting an innocent.

-- Reply to post discussing claimed innocent apparently proven guilty

This is the sort of thing that often bothers me about my opposite numbers, so to speak ... and I have dealt with this specific person personally as well. They are quite sure of themselves, and should be in a sense since they are intelligent and can forcibly set forth their point of view, while having some sound criticisms as well. But, they are not quite as right as they think they are, and their at times dismissive attitude does not change matters. The true path must be to hit them head on, which sadly I think not enough people do.

A valid point is that many who raise the fear that the death penalty will result in mistakes do not quite realize their argument is not fool proof ... and they deep down know that it at times has a makeweight quality. I personally do not find error as the compelling argument against the death penalty, at least not innocence, partly since (as noted here) this applies only in a small subset of cases. [I do think arbitrary and often erroneous decisions that select some over others to die is a pretty strong argument.] And, yes, everything has some risks, and maybe the risk here is worth it ... all things being equal.

But, death penalty opponents have many arrows in their bow, and even if they did not ... those who are worried about innocence are usually not just full of shit. They truly fear it ... and the fact that there is such a realm of doubt only adds to things. Yes, it looks like here that the person was guilty -- even the author of a book on the case admits it -- but reasonable doubt is just that. Sometimes you are right, sometimes not. And, death makes the risk even higher. As to the value of the penalty, life without parole also has been shown to be valuable (and supported by the public) in most cases.

Finally, the person being responded to here did not shy away from the fact that possible innocence does not clinch the deal. He noted that it goes to show that making darn sure matters too. But, many on the other side at times seem to fear that ... consider the national security warrants, etc. Thus, the value of DNA testing ... which in other cases went the other way. Sure enough, and those in the Innocence Project etc. might not like to admit the fact, sometimes DNA will help the prosecution. And, yes, the original person said he will continue to fight the death penalty, especially when his clients are at stake. So is job ... and since there are other problems with the penalty, he can do it consistently and honestly.

So, ultimately, the complaint is not quite as sound as one might think at first blush. But, the counterattack requires a bit of finesse, one (to be humble) I do not always cleanly handle. Such is the challenge.

Football Saturday

Today: Go Pittsburgh, of course, but the other game is more tricky. It would be nice if the Bears won, though their offense (or lack thereof) has to come back to haunt them eventually (and I rather it not be next week), but Carolina did beat the Giants ... I also think they could very well have a better shot at Seattle. Well, time will tell. A few new books on the side panel too, including a chick lit. Lol.

A wet warm day, a cold wet night. No snow in Denver though ... maybe that was the Pats' downfall. Strange game. It is like all the luck and smooth play of the past ten post season games feel apart all at once. How else to describe twenty four (out of 27) points off turnovers (a questionable pass interference and somewhat less questionable non-fumble in the End Zone call helping ... the Raiders somewhere are smiling)? After (like the Redskins early ... Seattle's MVP knocked out) their defense held Denver repeatedly (including a Third and Inches at the Pats' Four), things started to fall about right after the Two Minute Warning. Meanwhile, they could not score (even missed a field goal!), doing worse than the Redskins (who had a chance to tie late ... Seattle is no lock next week).

The score was 3-0 (Pats ... Denver dominated the First Half, except where it counted) at the Two Minute Warning. I switched the game off a bit to finish watching my Russian DVD (Chess Fever this time), since there was less than ten minutes left. After all, this would still probably allow me to see the end of the Half. Well, I did ... it was about 1:33 when I turned it back on ... but Denver had the ball, and a 7-3 lead (fumble, pass interference in the End Zone, score, fumble on the return). I did see them make a 50 yd field goal, making it 10-3. The last time the Pats was behind at his point was in the snow game. But, no snow in Denver ... just thin air. Lots of rain (over three straight weeks of it) in Seattle though.

More follies in the Second Half. The Pats was about to go up 13-10 when Brady (for only the second time in the post season ... the last time in the Carolina Super Bowl) was intercepted in the End Zone, and it was ran back 100 yards .. to the 1. The poor guy was out of gas and probably could not believe a Pats offense player ran all the way from the other side of the field to knock the ball away just before he made it. And, it could have been a fumble out of the End Zone, which would have made it Pats ball at the 20. But, the call on the field stood. TD right after.

And, then, muffed (?) punt. But, wait. The Pats scored in :33 seconds to make it a 11pt game (that missed field goal mattered!) again! But, no, a long pass and another couple first downs basically iced it. The Pats even had an extra timeout (after another interception, I guess it was felt pointless to get the ball back with under a minute left, down 27-13) in the end. They have a lot of time now ... except for those with Pro Bowl spots.

Alito Again

And Also: 50s again today. It is January, right?

As to Alito, unfortunately Ms Alito's (not her professional name) bit of crying ... viewed by many as somehow the Democrats' fault (yes, there is more b.s. at there than sewage in a sewer) ... somehow was a major blow according to more than my local tabloid and the likes of Drudge per the NYT:

"Had she not cried, we would have won that day," said one Senate strategist involved in the hearings, who did not want to be quoted by name discussing the Democrats' problems at the hearing. "It got front-page attention. It was on every local news show." ...

Beyond that, they said Judge Alito had turned out to be a more skillful witness than they had expected

What? Yes, the Dems are a bunch of f-ing weenies. They repeatedly let disgustingly cynical tactics be used against them without proper counterattacks. Alito cynically uses CAP membership (Sen. Specter suggests he never belonged ... oh, so he just LIED about it, then? yeah, that is a reason for you to support an anti-choice nominee, Arlen*) and it is the Democrats' fault for calling him on it? Sen. "sleazy homespun" Graham drawls out an apology for the Dems actually doing the job of the Senate -- oversight is so mean, after all -- and the Dems must therefore go into their whole and cry?

I say all those middle of the road senators (you know, all five of them) who vote to confirm should be targeted relentlessly maybe with pictures of little girls being searched or wives being required to tell their husbands intimate details because it is for their own good.

Wah wah! He was soooo skillful! Again, what? I caught some of the hearings (on the radio/tv ... they are being rebroadcast as I type) and read some of the record and wonder why we should be soooo impressed. Yeah, he played the game. I do not think he played it better than most ... he was not as tough as Judge Roberts or anything. And, since some of these senators have been doing this for years, maybe you would think they might have a bit of an edge too. If they keep on doing the same old shit, yeah, maybe the public and better yet the media, will just yawn.

Are media accounts such as these a preview of some 65-35 confirmation vote? Is this the reason why everyone said we had to hold our noses and vote to confirm John Roberts? If so, count me as pissed. It reaffirms the fatalism of some who say that "hey, Alito will be confirmed anyway, so let's forget about this CAP business, hell with filibuster, and let's just get ready for Roe et. al. to be flushed away." They miss the forest for a single tree. They sigh over reports against illegal wiretaps, but do not see a connection to nomination of judges whose ideology (which a single cry -- feminism be damned -- allows to be hidden without harm) justifies it. Or, just fail to supply a truly all points attack.

Are we supposed to believe that if Alito actually was more actively involved in CAP in the 1970s that maybe a filibuster would be feasible? Are you serious? Maybe, this is the problem -- still, ideology and overall presidential wrongdoing (unpopular wrongdoing ... following recent polls alone) is not what really matters. Independent qualifications and no Republican counterattacks (they make us look bad! we really wanted to be tough, really we did!) is what really matters. The only way to lose is to have a perfect storm (Bork) with even an inexperienced sexual harasser (well, yeah, he is black ... like a woman crying, that matters) not able to be defeated.

Some say, we don't control the Senate or the presidency nor do moderate Republicans seem willing to come over. In a few areas, including preventing Bolton from being voted in, they have. And, a filibuster would at least have put some pressure on pro-choice moderates wary about being seen as bootlickers. But, the signals say that they very well might not even try.

After all, Alito's wife cried and her husband did not. I want better leaderhip. Now. Yeah, it would be nice later too, but later starts now. See, Oct. 2002 and its aftermath. See, how the Republicans actually gain power in the 1990s. Dems don't seem to get the whole flavor of that old maxim -- yes, you retreat and be alive to fight another day, but before you do so, it is often useful to put up some fight.

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* Other things from his old job application should raise eyebrows too. For instance: "In college, I developed a deep interest in constitutional law, motivated in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure, the Establishment Clause, and reapportionment. I discovered the writings of Alexander Bickel advocating judicial restraint, and it was largely for this reason that I decided to go to Yale Law School."

The Establishment Clause? He was called on this by Sen. Durbin and he raised some of the confusing applications from the Burger years. Other than upholding supplying textbooks to religious schools (which easily could have cleared up some of those Burger applications) and allowing Sunday closing laws, the cases dealt with school prayer and bible reading, bans on teaching evolution, broadly defining conscientious objection and religious exemption rules for unemployment compensation, and not allowing a religious test to become a notary.

What one of these did Alito disagree with?

Various

Yesterday was Friday the 13th. As is sadly predictable these days, last week there was a few Friday 13th movies on, but only one was on this week ... and very few other horror movies. What did I watch before going to bed? Yes, a silent Russian movie ... actually Bed and Sofa was a pretty good selection (really) with remarkable film quality for a movie from the 1920s. It also was shall we say a "pre-Code" type of film involving adultery and illegitimate pregnancy, more mature (though much of it was implied ... again, in a creative way) than many films one is likely to see these days.

The available commentary was too pedantic, and the soundtrack annoying, but it was fairly easy to watch all the same. Yes, even with only title cards. Oh, though the wife had a flapper look, the actors really look artificial as they often did early on to allow makeup to show up on old film and so forth. I would say it is better than many of the docudrama dominated Lifetime, which is no longer on the Dish Network system (my provider), leading to a large advertisement to be bought for the NYT signed by a bunch of advocate groups. A bit silly really -- Lifetime is a channel for some women ... and WE (Women) Network is still provided.

Talking about movies, I forgot to note another love metaphor/dialogue that is provided in holiday movies. Namely, Casanova had a view of love in which someone in love finds rainy weather but a change of pace. Anyway, everyone will be happy to know that I obtained a WV quarter, thus having all state quarters east of the Mississippi.

It's Ideology, Obviously

And Also: Interesting article on targeting members of the press to obtain their sources. What if one of the wiretap authors is called to task? For a short while, I sort of enjoyed the blogger ridiculed here, but soon thought better of it. I'd add a letter to the NYT had a point: let senators like Biden talk about the law, if they like, even if it takes away from Q and A. Judge Alito will have a lifetime. Maybe, a bit cynical, but heck others did spend their time more wisely.

Also: Consider this post, which suggests Judge "Alito knows the law, but he doesn't seem to know, or care about, The Law." That is, justice. This blends with a Slate discussion involving "law plus," which some (I guess, ala Holmes ... we don't do justice) don't quite like the federal courts to worry about too much. But, the "law of the land" (e.g., equal protection) requires some degree of equity. It is part of "The Law." This is one aspect of some conservatives (after all, they care about spirit when let us say state immunity is at stake) that troubles me.

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My opposition to Alito is based on ideological grounds. As many have noted, this is a sound reason, even if you disagree with me on the case at hand. Dahlia Lithwick, part of a tag team whose dislike of Alito some see as too strident, suggests the whole CAP matter falls in this area. Since he and his supporters are not willing to come clean, we basically have to read code. CAP is symbolic as was his support of the Bork nomination, which he also now downplays.* His failure to come clean on the matter, or to put it less diplomatically, his lies, only add fuel to the fire.**

I think that is the best way to look at things. Some target his failure to recuse himself if a few cases after promising the committee involved in his appointment to the Third Circuit that he would in all cases related to the specific class at issue. Bar Committee witnesses basically argued today that there really was no fire there. I leave it to others to suggest that they are wrong, but politically at least, that seems to make this something of a non-issue. Alone, I just do not find it worth mentioning too much.

[A bit of inside baseball also is the use of his fellow judges as character witnesses. This is more troubling, especially since Arlen Specter handled the matter and gave it legitimacy, since it sets a bad precedent and raises serious conflict of interest rules. More so than a few cases out of thousands that surely was not intentionally taken.]

The tendency to focus on other things and avoid what really is involved almost implies the fact ridiculed by the satire I linked above: that ideology does not really matter, only neutral qualification issues. But, the reason why Alito should fall ... and why a significant number of Dems will vote against him ... is not because he did not recuse himself or even his use of CAP (though that does help them). It is his ideology. So, let's -- unlike Bush on down -- be honest about the fact. And, forthrightly argue that it is okay to base our opposition basically on that.

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* Justices White and Stevens supported the Bork nomination. The point, however, is that in Alito's case that he strongly expressed support and now does not want to admit to it. He just did it to support his bosses. Sure.

** What rankles is the phoniness. Alito put it on his application, along with the Federalist Society (the only two groups ... how telling), clearly because he thought it would advance his career. DL thought it upsetting to have to rub his nose in what it stood for. But, I think not. He used it, he has to pay the piper. The judge's blathering on the matter makes one even less sympathetic.

[Sort of reminds me of Bush senior's disaste of dirty politics, but feeling it a necessary evil ... the fact he was a nice guy does not remove responsibility for the tactics he allowed his agents to use.]

Stupid Alito Hearing Tricks

Weird SC compatriots: When did this happen? Justice Steven (joined by Thomas) dissented from a price discrimination opinion, the dissent citing Bork of all people along the way. Meanwhile, the SC unanimously remanded a controversial prison disability discrimination case, suggesting clarification was needed, putting controversial state sovereignty matters at hand to another day. This avoidance of controversy via narrow rulings is pretty common these days. The third and fourth cases also followed form -- a Ninth Circuit cutdown on a criminal matter. Stevens, also to form, concurred separately, mostly disagreeing with the majority in the process. The fourth was 5-4 with an Alito case cited in a footnote

The Alito hearings, par for the course, are somewhat annoying. A typical criticism, one I share, is that senators do not really know how to question/grill nominees. Some really do not want to, using question time to make political statements or to grandstand (Sen. Biden truly loves to hear himself talk). I know many do not take these things seriously, but this does not have to be the case. Some members of Congress actually do a decent job, clarifying some issues, and maybe even getting the nominee on the record for good or ill.

This is quite possible. It is noted that nominees have something over the senators, since the nominees are professionals at what they are being nominated for (though some picks are not professional/experienced enough) while the senators are at best generalists or politicians. Surely, a long time judge (Alito) or judge/advocate (Roberts) can handle them. But, this is not quite true, is it? First, the senators have been doing this for years. Second, many have had significant time in the legal profession in various roles. Third, they can be prepped. Many have good staffs with some great minds. For instance, Justice Breyer was once on a senator's staff.

Thus, no, I do not accept that the often shoddy questioning has to be. Hearings might be of limited value, simple (to use a now common term) kabuki theater, but it need not be. In fact, even the hearings of Chief Justice Roberts were not useless. Surely, if they have the wherewithal and/or guts, a preview to a possible filibuster broadcast on various channels and reported in major media has some potential. And, I have not kept abreast to the gavel to gavel coverage. But, too much B.S. is going on.

A few major techniques are used by Alito ... and other nominees ... to avoid being fried in hearings. A major technique is to argue that much of their record is in the promotion of a client, here the Reagan Administration. Now, Alito has independent writings that can be used, but let us hit that claim. My basic belief, as was the case in the Roberts Nomination, was that overall these people did not just advocate, they believed what they advocated. They joined and were selected (and nominated to the bench, for that matter) not just because of a desire to serve in public service and their expertise. So, my question might be: was ideology an aspect of you joining the Reagan Administration, and either way, did you generally support the ideology that you promoted?

Another is dealing with generalities and arguing that specifics will have to wait until individual cases come to them while on the bench. Thus, Judge Alito can promote platitudes like "no one is above the law" or "the President has to follow the law and Constitution," without admitting this does not prove much. As Sen. Feingold brought out, sometimes government officials are immune from suit, and Alito if anything promoted more immunity than some others.* And, President Bush thinks Art. II constitutionally gives him independent power to avoid the limits of statutory law. Senators have to forcibly follow-up his platitudes by noting such things ... and if he still wants to avoid any specifics, at least it is clearly there.

A third technique is to claim that he will respect (as in giving it respectful concern) stare decisis, so do not worry about him shifting the Court to the Right. This is meaningless without more (and ignores how the Court develops over time via nominations from shifting majorities) ... and I am sure some discussion of the exact guidelines submitted in past cases (which he will respectively honor, I guess) was covered. Sen. Schumer challenged him on the point -- bringing up Roe, obviously -- noting Justice Thomas et. al. raised the issue as well, but over time has shown to be a fair weather friend to stare decisis.

[Sen. Durbin today managed to get Alito to resist saying Roe was "settled law." I would add that even settled law is open to much interpretation, thus Alito managed to slant it a certain way. Now, I felt his Casey dissent did so wrongly, but it was smart enough to look reasonable. CJ Rehnquist was a wiz at this sort of thing, though did so with less detail than Judge Alito now typically does.]

Schumer had a point, but did it in such a snotty (the guy is a sanctimonious jerk at times) and heavy-handed fashion that it turned me (who is sympathetic with his overall claims) off. Also, Schumer stupidly noted that Alito was willing to say he agreed that free speech precedents should be upheld, why not the right to privacy? As Alito noted, the latter is more indirect and requires more interpretation. Fine ... take some other fairly benign second level right (counsel on appeal, travel, whatever) and get him to agree that the law is clear. Again, you need to have some skill at cross examination here.

A final technique -- related to the first -- was to avoid his ideology. We have to take one case at a time ... not have a client ... we cannot have an agenda, etc. But, darn, conservatives support his nomination over some liberal with great qualifications, his opinions clearly lean a certain way, and the Supreme Court itself specifically picks and chooses cases, often to promote certain outcomes. Judge Alito did reference, in connection perhaps to his Concerned Alumni of Princeton (like those groups that claim to be concerned about families, the name is a red flag alone) membership, his conservative slant in college.

But, overall, let us cut the B.S. that judges are robots without any leanings. This also touches upon Alito's comments that he really did not want to go into his personal feelings about things ... that does not matter, right?** Oh please. Let us honestly face up to the fact ... as Sen. Graham noted ... many surely think it is perfectly fine for Bush to nominate conservative individuals. It is nothing new that the powers that be, especially this administration, promote fiction. Still, sometimes it is particularly galling ... like Bush saying he wants an "honest" debate in the upcoming election cycle. Guy should be on SNL.

[Update: Again, it should be noted that there was some useful questions. Sen. Kohl, which one place noted is a generally low key sort that does not make waves, did raise the studies of the conservative leanings of Alito's opinion. Alito did not directly address it though he did defend his overall philosophy a bit. A direct follow-up would have been helpful -- it was the last question in Kohl's round. Anyway, overall, hiding the truly conservative nature of their politics is a typical Bushie technique. The hesistance of Alito to face up to his support of Bork is but one example here.]

Many, such as the recently deceased constitutional scholar John Hart Ely Jr., are wary about the politicization of our judicial nomination process. But, I think the true problem is the bullshit nature of it all -- nominations always were somewhat political, more so now since the central government (including the courts) have a lot more power ... and this is in general a divisive time (no thanks to you know who). We need to accept the new state of affairs, the alternative is pretty Pollyanna-like, but can do some with some finesse. Sure it will be messy; it need not be shoddy though.

And, to be more partisan, this will also help the Democrats. Cries against corruption works best when you are out of power -- power corrupts, so the most powerful tend to be the most corrupt. Or, they seem to be -- Newt Gingrich knew this. Pushing for a more honest and equitable (oh, did I note that I find Sen. Orin Hatch also to be a sanctimonious ass? surely on the judicial nomination process ... but he is about as bad as Schumer in his questioning as well) nomination process, also one that pushes for the best nominees can help the Democrats as well. Some do not think they have the guts to really fight against Alito ... either way, I think they can fight against him better than they are now.

Perhaps, in some of the ways suggested above.

---

* Helped by some Republican senators, Judge Alito promoted some B.S. on the infamous strip search case by noting that it was really a case dealing with a civil suit against an officer, not a Fourth Amendment claim. But, the whole point of the claim not only arose from Fourth Amendment privacy concerns, but dealt with the "reasonableness" of a search! Furthermore, why not rub it in his face that Judge Chertoff (yeah, the Homeland Security guy) rejected his interpretation? You know, to show how conservative he is.

** Alito did note that he did not think decisions of other nations were of much value, promoting the usual petty p.o.v. that even referencing them a few times somehow threatens our legitimacy. Somehow, other nations reference our decisions, many with various differences from our system, and they manage fine.

I would add that some note he is coming off stiff and a bit angry to be challenged. Is it just me, or do too many conservatives come off to be jerks? Seriously, it is like they are annoyed about being out of power for so long, especially since the libs are obviously wrong. [As shown by the party overall, the Democrats as a group are more wary about forthrightly saying they are right and others clearly wrong -- even if some do manage the trick.] I find this snotty nature showing up in various conservatives online, though sure it is not limited to them.

Still, it really rubs me the wrong way.

Jill Carroll, Seeds of Peace, etc.

Postage Calamity: I caught the brunt of the postage increase today when I sent two books out and had to pay .38 more. It does seem like the post office promoted a customer friendly policy in the last few years. They do have a policy of trying to get you to "supersize" things (insurance, delivery confirmation, stamps, etc.), but this probably was part of the standard customer friendly tutorial. Admittedly, they did accidentally give a bunch of .02 stamps to someone I know, but I took them off her, and used them instead of the new .39 kind. Wasted a penny, but that's the sort of guy I am.

Various blogs noted that the woman reporter that was abducted in Iraq over the weekend. Some wondered if this was proper or when such secrecy should be used.* It is unclear why her name was withheld (privacy? security reasons?), but it did not strike me as too outrageous really. Anyway, today, news reports did identify the woman; it also noted that her interpreter was killed as well. A picture (studious looking brunette with glasses) of the freelance reporter, Jill Carroll, was included ... she's younger than me. And, doing the press and nation proud -- risking her life to supply the news, and probably doing so with a more independent voice. The press, especially non-Americans by the way, is some of the true heroes of this conflict.

Update: Apparently, the delay was mostly security reasons to help capture the kidnappers.

[Repeated news articles also suggest some of these non-Americans are clear targets of our military ... such as Bush wanting to bomb al-Jazeera, not some branch of al-Qaeda, but a true independent voice that should be honored. The most recent includes an armed invasion of a reporter's home while his family was with him, allegedly to ask him questions about a terrorist. Many find this dubious.]

Jill Carroll covered the death of Maria Ruzicka, another young (slain ... damn it if Carroll joins her) hero, who was concerned about the Iraqi civilian dead. My local tabloid, the NY Daily News, had a touching story on Ruzicka, and I wrote a little note (which was printed, lol ... why not print my critical letters?) thanking them for it. I am reading a good book by another young person (so says I, ancient soul) who also is promoting the cause of peace and understanding. Jennifer Miller, daughter of U.S. State Department negotiator at the Oslo/Camp David peace summits herself is a freelancer, and author of Inheriting The Holy Land: An American's Search for Hope in the Middle East. [She also is a mostly secular Jew ... she is upfront about her possible biases.]

This was built off her experience in Seeds of Peace, an (per their website) "organization that helps teenagers from regions of conflict learn the skills of making peace." Miller went to Israel for six months to obtain a first hand view of things as well as listening to the views of various sides ... especially her fellow "seeds" ... focusing in particular on the youth. Her father clearly opened some doors too. [The blurbs on the cover come from such people as Madeleine Albright, Shimon Peres, and Mahmoud Abbas.] My copy also has the additional value (if illegitimate -- it is a library book) of having notes in the margin apparently by a local Jew (the library is in an area with a sizable Jewish community) focusing on his/her distaste of the author's point of view.

It strikes me how important such an on one level unremarkable speck of land is to our nation, nay the whole West. For instance, consider the Gaza Strip -- which recently was stripped, so to speak, of the small Jewish settler population. It is literally a strip of land, reminding me of Dave Barry sardonically showing a map of Grenada ("actual size") in one of his books. But, Israel as a whole is not much bigger, especially after removing the southern desert area (which is a significant amount part of the acreage, but I assume not that populated). And, look how important the damn country is. Such is one reason I am reading the book -- well written, perfect for young adults too -- even though I know so little about the rest of the world.

Oh well. I hope Carroll is still alive.

---

* Some blogs are also concerned that a new law prohibits one from "annoying" another online, arguing that this is not really the same as harassment.

A rejoinder (providing the feminist p.o.v.) noted that courts have consistently interpreted similar state laws (thus the word is boilerplate, not some fascist addition in the federal law) narrowly, not only protecting opinions on blogs, but not defining the word to mean anything that is in any way bothersome. This seems fair ... after all, general harassment laws sometimes have the word "annoy," and it is not deemed to be a free speech concern. I do see how it can be abused, so wariness is proper, but guarded acceptance does as well.

Alito Fun Begins

And Also: Running On Empty ... Good movie.

A snapshot at my attempt to winnow things so that the core of the matter is dealt with, to avoid misunderstandings and exaggerated claims ... something that I think is epidemic in opinion pages, the blogosphere, and politics. One talking point (both sides do it) among the progressives these days is to show that Robert Bork was not "Borked" to the degree that he was unfairly smeared. In fact, his nomination to the Supreme Court (for the last "swing" seat ... Powell ... leading to the likely new "swing" ... Kennedy) failed because his own views were clearly too "out there."

I responded to such a claim by trying to narrow things a bit. I argued that there were two levels of disapproval here: those that did not like the strong ideological attack at all (something many still claim is an illegitimate basis to oppose justices ... a tired claim, but just because one is tired in the morning, one still has to get up, right? that is, it still must be addressed) ... this I noted was unsound. In other words, Bork was up for a key seat, and a strong opposition to his views was legitimate.

Another level suggested his views were in effect twisted. I recall, in particular, one of Kennedy's speeches ... the desire to look at Bork's video rentals ... comments in an opinion that was interpreted to mean that he supported sterilization (a fetal protection law was at stake) ... and use of some of his old law reviews and views to suggest he still supported things like opposition to the Civil Rights Act. Or, rather, would so vote once on the bench. I would add that with his beard, he rightly can be said to have been view in some locales as in effect the devil.

This I felt was a bit more fair to argue, but that a quite sound case can be made that Bork still was treated unfairly. This brought various upset replies. His law review articles were not twisted. Well, no. I did not say that ... I actually said that they might have been taken too mean more than they really do. A few were noted in the comments ... as I replied, would Bork really have decided thusly in all respects once a justice? Someone else ignored by division of the debate and said that Bork was defeated based on fair questioning of his views. But, the concern -- nay disgust -- in some quarters was not really that. And, the fact Bork was in effect the start of a more passionate fight for the judiciary in recent years (though in part a response to the Reagan push to do just that) only added fuel to the fire.

[A later reply suggested Bork would in effect work to cut the foundations ala those who would attack Roe this way ... but this is telling, since this secures Roe for most people. It is far from painless -- it tends to hurt those who need its protections the most, but a hurt the weak argument is different from a "he will lead the way to back alley abortions" argument. Parent consent, second trimester limits, etc. might hurt a key 20% ... to supply a wildly rough estimate ... and be enough to be very concerned. But, it's a bit different, isn't it?]

Thomas was the first real nomination fight that I truly was into, so maybe my image of the Bork fight is incomplete. Generally, given my generalist view of things, this is often the case. I often try to get a general feel of things. Like I find this whole argument that Roberts and now Alito just played a conservative in the Reagan Administration, so we really cannot take too much from the memoranda etc., they were just advocates ... as b.s. I'm sorry. Rehnquist and Scalia were advocates too. There advocacy influenced their nominations and was surely reflected in their court opinions. Thurgood Marshall was advocates for clients ... many on the bench in the FDR years served in the FDR White House. Darn, if their previous service was later reflected in their court opinions.

But, I think the response to my comment was telling. Anyway, the Alito hearings began today. A couple things. Why did Sen. Specter go out of his way to suggest Alito is just another Souter, even having props of anti-Souter protests that feared his vote in Casey (wrongly ... though many conservative supporters of the nomination was just as wrong ... thinking he would overturn Roe ... but Alito actually is on record on this issue, one not quite important in NH)? Methinks he wants to vote for him or at least send a "hey look at me" message to conservatives.*

How about Alito saying he is conservative (no!) minded in part because of those children of privilege acting irresponsibly in his college years ('60s hating George Will must love him)? What would that be, Sam? Their opposition to a criminal war? Oh, how about his suggestion judges must decide cases, not tilt ... first, the Supremes mostly control their own docket. Second, Alito time after time leans a certain way somehow, even taking each case one at a time.

Yeah, this is bound to be fun. You know, like yesterday was for the Giants and Bengals. This was suggested by Mark Shields on PBS ... sign ... remarking how Alito came off as "one of us" ... as just one of the gang, a common sort. He used somewhat more striking language. The whole "son of an immigrant" (actually no ... his parents were born here) spin was commented for weeks on blogs and so forth. The "just one of the folks" motif is a tried and true method (Clarence Thomas, anyone?). To hear a so-called "liberal" leaning columnist talking as if Alito scored a coup by promoting it is somehow remarkable is annoying.

Oh vey.

---

* He also tried to show the concern about Roberts -- that he along with Alito would change the Court -- looks to be an exaggeration too. What bullshit. He has been on the Court for all of four months, the Court handed down about that many opinions ... none of them really significant. In fact, some of his questioning from the bench suggested a conservative leaning. But, really no time has passed ... it is ridiculously too early to tell.

And, you thought the basic implication by the Democrats (for clear political effect) that O'Connor is a moderate (as compared to a generally moderate conservative) was a tad silly.

Wild Card Weekend

Comment: Oh, just raise it to .40 already.

Wild Card Weekend -- the weekend where every wild card team (except for the one going against the Pats, of course), won. The teams were evenly matched -- either having the same records, or off by a game, but being hot lately. There were few surprises, even though two teams that lost were both favored (not by much). To the degree I cared, I generally favored the team that lost, in one case because the loss did not help the Giants in the end.

Ah, the Giants. Many noted that they had to win the final game, giving them the NFC East plus a home game, even after even a loss would have gave them a playoff berth (as a road / wild card team). After all, they would in that case be in the midst of a two game losing streak, backed in (after losing to a bad team), and have to play on the road. Yeah, that would have been tough. Perhaps, they would have had a worse game -- you know, worst than 23-0 with team MVP Tiki Barber having a lousy day along with the rest of the team. It was surely the worst game of the year, a reminder of some of the worst games of the last two seasons. Yuck.

The other NFC leader, Tampa, lost too ... but made a game of it. This even after two quick touchdowns were given up off turnovers. The Bucs D, unlike the Giants, actually gave them a chance to win down to the final minute ... when the third turnover ended their hopes. Mixed rookie QB effort there ... one that unlike the Giants QB only started a few games into this season. The Pats won, of course, though it was only 7-3 at the Half. What else when two Jag key defensive players had casts on their arms? The Bengals lost their QB right away (he's due back sometime in late '06), went ahead 17-7 ... and stopped scoring. The back-up did pretty good, but the team did not have it late. Again, at least they showed some life.

Unlike a certain NJ team I know. Anyway, do not be too surprised if Wild Card Carolina actually has a home game ... which will happen if they and the Redskins both win next week ... after all, the Redskins Offense mostly took off this weekend (fourteen of seventeen points off those turnovers). We shall see.

Movies/TV

And Also: An interesting article discusses the growth of the "unitary presidency" in the last twenty-five years, noting that President Bush took things to a new level. One less well-known method is "signing statements," written comments submitted when the President signs a bill into law. Art. I, sec. 7 references statements explaining why a bill was vetoed, but executive statements [75 until Carter, 322 until Bush, 435 so far under Bush] is a nifty end around ... especially for someone with no vetoes. One appropriations bill was signed with a statement issuing 116 specific objections, sort of a "sure ... but in these areas I reserve the right to nullify this law." Or, "I'll support a weak interpretation of this whistleblower statute...." And, you thought excessive secrecy was a problem for the Bush administration ...

Casanova provides Heath Ledger a chance to show everyone that he really is a heterosexual. The film is mostly a trivial but fun farce that is a nice holiday diversion. It concerns the one that did not immediately succumb to the famous lover's wiles and is handled with just the right amount of not to be taken too seriously period pic levity. Oliver Platt is starting to make a career out of such films, adding another amusing guest perf and old hands like Lena Olin and Jeremy Irons join with some new faces to add to the fun.

[Nearby was a Borders ... I took a look at The Woman at the Washington Zoo: Writings on Politics, Family, And Fate by Marjorie Williams (deceased/edited by Timothy Noah -- her husband) and it looks promising. I know that some support indie book stores, and they have their place, but I like the megastores too.]

The Book of Daniel (NBC/Fri) concerns Aidan Quinn as a Westchester County Episcopalian minister handling troubles at his church and among his family -- and darn if there are a lot. Well, let's list a few: he is addicted to pain killers, his wife drinks too much and previews suggest her mother is a bitch, his mother slips in and out of rationality / father having an affair with his (Quinn's) bishop, one son is gay, another (adopted -- Asian) is going out with a local moneybags' daughter to their racist disdain, the first episode starts with his daughter getting caught selling marijuana, a sis-in-law has a lesbian affair with ... Enough.

Too much soap opera ... there is room for a Seventh Heaven without the G rating (though they are a rowdy bunch ... more PG), but the first episode suggests the show wants to be too controversial. Has some potential with good acting etc., but there was just too much over the top soap opera. I also think the talking to a personified typical blonde Jesus is just a bit too cute. Perhaps, the first episode just was used to catch one's eye, but they did so by basically giving nearly everyone some major problem, if not more than one. As noted, overkill. This annoyed me enough that it might ruin some of the likely superior story lines dealing with religious and family matters.

President's Recess Fun

And Also: Pretty good Rose Bowl ... Texas had some QB there, doing a Michael Vick, leaving Reggie Bush is the dust. I'm still annoyed Notre Dame choked on a 4th and 10 that would have given the Trojans a loss. So, I'm glad they both lost, though a missed field goal and extra point could have helped USC. A #2 team can't make an extra point? (Well, they rushed to avoid a challenge, so they had an excuse.) Also, why this long layoff until bowl games? The bye weeks probably hurt both teams involved.

President Clinton, with the Senate mostly out of Democrat control, made one hundred and forty recess appointments ... Bush has made 110 thus far. The practice is troubling, since it does an end around to the confirmation process, and probably was intended as a way to fill slots made vacant during previously extended congressional recesses. Recent habit, however, is to use it as a way to avoid controversial nomination battles, including those where the recess actually arose when the Senate was in session. Bush has repeatedly used it to install controversial nominees (including two appellate judges) and many times doing so during short recesses, when there was no compelling need to make such an appointment. The person stays in office to the end of the next session.

Putting aside colorable constitutional claims, which only lower courts have covered (upholding recent practice), many of these appointments are simply unjust and greatly troubling. The timing often was a bit off: one judge controversial partly for civil rights reasons was appointed over the Martin Luther King Jr. holiday. The person involved in the Abramoff prosecution, Alice Fisher, was silently installed during the Katrina disaster (Sen. Levin placed a hold on her nomination "because he wants to talk to an agent who named Fisher in an e-mail about allegedly abusive interrogations at the U.S. military prison camp at Guantanamo"). A recent article noted Fisher had the right connections, but some suggest her appointment was a "fix" to deal with the recent plea agreement matter.

The most recent appointments also were troubling. Half of the Federal Election Committee, including one member supported by Sen. Reid, was installed without the Senate having a chance to examine their record in hearings and so forth ... the whole point of advise and consent. Likewise, Julie Myers was installed as head of Immigration Customs and Enforcement. Her nomination was challenged both on cronyism and qualifications grounds ... ala Miers ... and the importance of the position made this particularly troubling. More so if the Senate was not given a chance to have an up/down vote on the matter.

Bush is on the path to make more recess appointments than Clinton, but clearly Clinton probably had some troubling situations too ... it would be interesting, however, to see a study. For instance, he recess appointed one appellate judge, and only after a decade of repeated blockages by Sen. Helms. This doesn't really match Bush's appointment of two judges, one in fact rejected by the Senate Judiciary Committee, the other particularly controversial. Meanwhile, Clinton's pick was re-nominated by Bush. And, where was Clinton's John Bolton?

Anyway, two wrongs do not make a right, and overall this is a lousy policy. Repeatedly, troubling picks -- picks even a Republican Senate was not trusted with -- were installed by the President alone.

Executive Override/BS

And Also: Chalbi -- escaped felon, promoter of fraudulent intel, and unpopular carpetbagger (oh, and he appears to have leaked intel to Iran) -- didn't do well in the recent Iraq elections. He got around 1% of the vote, if not less. Thus, surely it was proper make him the new oil minister. This sort of thing rubs certain people the wrong way.

[This post might be thought to beating a dead horse, but there is a fundament principle at stake here, and besides, this is my blog. I would add that given the allegations, impeachment really should be spoke as a quite reasonable approach. You know, if lying to get us into war did not -- seriously, why was that not impeachable, if that is your claim?

Maybe, because too many of the critics are weenies. And, there is some discussion that impeachment might be a reasonable thing to bring up. But, compare this to the multiple papers that in '98 suggested the President should step down because of his actions related to lying about a blow job. I guess, this President is in effect doing the same thing, metaphorically ... it just is much less pleasurable. And, he is benefiting from past abuse of the impeachment process.]

Various legal and political blogs have provided tons of fascinating (for those so inclined) coverage of the national security warrants story, spelling out why it is so serious and troubling. One had a post entitled "Why Is Bush Helping Terrorists," spelling out various cases where President Bush talked about means of targeting terrorists. In other words, one of many BS ALERT! posts.

My BS meter also moved to red territory when I looked over a Chicago Tribune editorial from last month by a former Clinton official claiming that the President's actions were legal. Why? Well, one FISA appeals opinion (generally unnoted, the only FISA appeal, the judges handpicked by CJ Rehnquist) dropped in a few words of dicta saying that FISA cannot remove the inherent power of the President.

This is akin to the "executive override" the President claimed when he signed the McCain and Graham amendments respecting torture and (restrained) habeas procedures for detainees (at least, those in Gitmo). He would follow them up to the point that they invaded executive power. To the truly fatuous, this appears to be boilerplate. In fact, and past behavior makes to clear to all except those who do not want to believe, it is an open-ended "get out of jail" free card allowing him to ignore laws. ["McCain's office did not return calls seeking comment yesterday."]

Life isn't that complicated: inherent executive power does not include the right to ignore the law. The Constitution, which he swore to uphold ("so help me God"), divides military and foreign relations power between the different branches. For instance, Congress has the power to pass laws (and the Senate, the power to ratify treaties doing the same ... though enabling legislation [not always passed] spelling out the details passed by the full Congress is often key) spelling out the "law of nations," which includes how to treat foreign detainees in war time. They also have the power to regulate the military, even if this in some way restrains core executive functions.

After all, military campaigns are clearly an executive bailiwick. But, Congress can ban the use of certain weapons as well as setting forth rules of proper military behavior. This in no way illegitimately invades executive power, since the President has no inherent right to invade enumerated congressional powers. Powers in other words are not put in little compartments, but in practice blended. Checks and balances. High school civics.

I'd add that the authorization of force used to justify executive power in this case is not "war" per se, but a sort of junior varsity version that brings with it less broad powers as compared to WWII and so forth. Such powers, including amendments to FISA passed after said AUMF, are the baliwick of Congress. The President can act in a twilight zone of sorts, but the true gray area here is a lot less gray than the President suggests.

Thus, easily manipulated boilerplate about inherent executive power is so troubling. One final bit. An interesting Alito memo was brought up in which he promoted the idea that executive signing statements should be used to help determine the meaning of bills that the President signs into law. For instance, the statement referenced above. But, Art. I, sec. 7 notes that the President signs into law bills that Congress present to him/her. Thumbs up, thumbs down. No, "well, I'm only signing this if you mean this" ... in fact, this has a line item veto feel to it, and such things have been declared unconstitutional.

The power in fact comes when the laws are carried out -- the Supremes noted that administrators have some flexibility in making policy choices in executing perhaps somewhat vague laws. This is troubling enough, since such policy choices should generally be made by Congress, the executive just carrying them out.

But, yeah, in some fashion, many laws need to supply some flexibility to those who carry them out. No need to go further though and have the courts determine "executive intent." In fact, some might say this invades executive power of current presidents, who are tied to the signing statements of past presidents. The courts have not taken up Alito's suggestion, but Bush apparently is a fan of the sentiment.

[Justice Scalia, who is a textualist in such matters, surely is no fan of this approach.]

Alive! ... I mean, Dead

And Also: A few TV/film bits. Nature's Promise (a good vegan burger) and Omnitech (an ad of which I heard) both bring to mind movies, Kate and Leopold (margarine) and First Monday in October (evil corporation) that reference such a product/firm.

Also, apparently the "boldly go where no man has gone before" Star Trek intro was inspired by an actual phrase (it used the more inclusive "no one" ... as Star Trek eventually did) in a late 1950s pamphlet promoting federal space research. Yet another interesting federal publication linked by Secrecy News (hat tip to BTC News), which also supplies more serious fare as well.

One of my elementary school teachers sometimes went on tangents when giving spelling (I guess; maybe not) tests, saying something about the word she was covering. I liked that even then -- after all, I knew that one inch equaled 2.54 centimeters ... a bit more exact than 2.5, right? Trivia, detail, and trivial connections/details were of interest to me for some time. This works for serious and not so serious subjects.

For instance, I was looking at my state quarter board (a cardboard map to hold them) and noticed that I do not yet have the 2005 West Virginia quarter. Unfortunately, this has some significance today. My local paper are among those who have an "Alive!" headline, celebrating the fact that twelve of thirteen miners from that state was saved from a coal mine (how 19th Century). The mine -- here's how these things matter -- were subject to lots of violations of late, including late last year. The problem, and this is one of those "damn that's painful" moments, is that the report was premature. It turned out only one was saved ... currently in critical condition. The authorities had an inkling something was wrong within around twenty minutes, the families about three hours -- after press time.

This was suggested by the fact that the results of the Penn State/Florida game (aka old coach bowl or damn it man, kick it through the uprights!) was available in my paper, even though the game was over after 1 A.M. Strange game -- Penn had last played in mid-November, perhaps explaining why the team ranked 3 had so much trouble with one ranked 22 (though with a very good defense). It went down to a third OT, when the kicker on a third try finally made a pretty easy (a bit less for college ... under 30) field goal (the second was a bit harder, 38 yd). Penn barely won based on: a missed extra point, a quick TD near the end of the First Half, and a safety. They were heavily favored.

Anyway, as I caught the end (extended) of the game, reports came in that the miners were saved, though one died. I even saw someone interviewed, who appeared to be a miner (he looked the type) ... but obviously he was not one of them. As noted by this useful local account, the governor himself did not officially announce they were saved, though said something that was apparently misunderstood to mean that. [I am with him, I guess: pending investigation, it is too soon to say what clearly happened here. This includes the direct cause of the disaster.]

The papers, however, were sloppy, even if said account was in general forgiving. My paper's local story is particularly telling: we read about one miner (the sole survivor ... for now) being rushed to the hospital, but that's it. The others are just about to be taken out, ambulances driven up to the mine and such. This was timed at around midnight ... not quite press time, as suggested by that sports score. I think, reference to that Michael Keaton movie, the paper should have been a bit more careful with that headline. Broadcast coverage might be more open to such "immediate" information, but print should be a bit more restrained. It is (should be) one of the benefits of print media, which has more time to contemplate before they publish.

The true pain goes to the families. Such cruelty -- bells were chimed (again, how 19th century ... Little House on the Prairie) in celebration. We see the families' cries of happiness. Oh, so sorry. Your loved ones are actually dead. Miscommunication, you know. Don't worry though ... President Bush will say some words of sympathy later in the day. You know, the person who supported less regulation and such, thanking you for giving you precious electoral votes back in '00.

There is a connection ... still, more importantly, sigh ... there are many people dying tragically and cruelly every day, but sometimes the cruel nature of things comes to the forefront. This is why the twelve, a drop in the bucket in some neutral sense, are so striking ... they represent the whole.

Indiana Assembly's Little Talk With Jesus

On April 5, the Rev. Clarence Brown gave a prayer praising God for giving the world Jesus. Following his prayer, Speaker Bosma asked Brown to remain in the Speaker’s stand and sing a song titled "Just a Little Talk with Jesus." ...

Although Marsh allowed for legislative prayer, it also clearly set out limitations, [Judge] Hamilton wrote. Specifically Marsh [upholding legislative prayers] noted the Constitution is subverted where "the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief."

In 2005, the Indiana House acted too often like a place of worship. The federal judge had no choice but to put a halt to its sectarian activities and remind the legislature that it works on behalf of all the state’s citizens.

-- Preferential Prayers: Federal Judge Halts Indiana Legislature’s Sectarian Invocations

What exactly is an "establishment of religion?" Unclear perhaps, but some unions of church and state that are deemed by some to be relatively minor seem to me to be particularly troubling. For instance, when forming a national anthem or pledge, especially one daily cited by young children, it appears that you should keep anything even kind of religious out of it. You know, citations of God or how we are "under" God and all. Unlike even supplying money to parents that might go to religious schools pursuant to their choice, this appears to be a clear endorsement by the state of religious doctrine.

"Establishment" suggests such close official endorsement ... it is especially problematic when the government itself gets involved with religious faith directly. This is why legislative prayer (prayer!) is problematic. Any involvement and picking and choosing in such matters, including who would be chaplain and what said chaplain (or lector? whatever) will say is trouble. Is it too surprising that the result, in the words of the Court, was:

Some of the prayers offered from the Speaker's podium in the House of Representatives avoided endorsing particular sects or beliefs. They included a broad spectrum of faith and belief and avoided sending the message to many that they are "outsiders" and to others that they are "insiders." The substantial majority, however, were different. After reviewing all available transcripts of prayers from the House sessions in 2005, the court finds that, the actual practice amounts on the whole to a clear endorsement of Christianity, sending the message to others that they are outsiders and the message to Christians that they are favored insiders. No other specific religious faith was endorsed or invoked. The only available transcript of a prayer led by anyone not professing the Christian faith, by a Muslim imam on March 8th, was inclusive and was not identifiable as distinctly Muslim from its content.

When the prayers were consistently Christian, to the degree that the reverend in effect led the hall in Christian song, it was deemed by some legislators and other participants (such as lobbyists that had to be there*)as a bit much. The litigants were: Quaker/Methodist/Roman Catholic. But, do recall that other case in which a Wiccan was not allowed to sign up to give an invocation -- the religious discrimination was upheld since they were deemed inclusive enough. Still, mixing church and state is just not the concern of atheists and agnostics. No matter how much some whine that it is.

Taking the "whatever it takes route," the Speaker argued "that the court should deny relief to plaintiffs because essentially 'all prayers advance' a particular faith or belief in one way or another." As the opinion notes, citing Justice Brennan's dissent in Marsh (Stevens also dissented separately, noting only one denomination was represented for over a decade), this has some force. It is not current law though. Furthermore, the legislators fighting for Christian dominance here wanted to go the other way: no limits, not no chaplains. The ruling countered, quoting another case (there being a small cottage industry in this area):

Our civic faith seeks guidance that is not the property of any sect. To ban all manifestations of this faith would needlessly transform and devitalize the very nature of our culture. When we gather as Americans, we do not abandon all expressions of religious faith. Instead, our expressions evoke common and inclusive themes and forswear, as Chesterfield has done, the forbidding character of sectarian invocations.

The ruling held that there can be no Christian references; such was the saving grace, so to speak, in Marsh. [The references were removed there after someone finally complained -- this is how it should be, right?] This is what "nonsectarian" means according to current doctrine. That's b.s. really ... it just is less so. The point is that the 'civic faith' is not to be regulated when it comes to religious belief by the state at all.

But, the Court here was compelled to push for the lesser evil. Meanwhile, the legislators demanding Christian prayers say they will not stop. Maybe, they should read up more on what Jesus said about praying in public.

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* Lobbying is not all akin to the sort that led to today's plea deal. One here involved a Quaker lobbyist, who lost the position upon joining in the lawsuit. This makes sense: suing the legislature might hinder lobbying, but the harm caused by defending religious liberty here is telling.

True Numbers, True Democracy

Football: I mentioned yesterday that it might have been a good thing if the Giants had to face the Carolina Panthers over let's say the Washington Redskins. This probably was a bit ill-advised, especially after yesterday's games. The Eagles finally shot themselves in the foot, but the Redskins didn't look that good, and are a bit banged up. Carolina manhandled the Falcons. Meanwhile, though it wasn't easy (missed 31 yd field goal, deep into OT, even with back-up QB), the Texas won the worst record sweepstakes. Star: The kicker, who could have won two games it he made 31 yd field goals. Oh, Doug Flutie ... (drop) kicker. Talk about quick Wikipedia entries -- his feat was added by late afternoon.

A truly tragic story is in the news over here -- a veteran, happy to be home, shot some celebratory shots in the air. We are talking about the air of NYC ... and in the process, he shot a woman/mother in the eye, killing her. The heartbroken father, a falafel vendor (really), is bringing her back to the old country with help of donations. The veteran is being charged with manslaughter and a few other things. One point: he didn't mean to kill her, but he did. She is still dead.

This is somewhat connected to a piece in Salon, talking about a letter by some Democrats in Congress to the President (well, it's wrong then, right?) about how the Pentagon is supplying much too low causality numbers. There is nothing new about their calculus, but this doesn't change the problem, and it is particularly troubling now -- the Bush and Clinton Pentagon might have used a similar definition, but the numbers are so much higher this time around. And, they are still injuried, often seriously, no matter what.

We are not talking about trivial numbers here:

Pentagon casualty reports show 2,390 service members dead from Iraq and Afghanistan and over 16,000 wounded. By far the vast majority of the wounded and dead are from Iraq.

But by Dec. 8, 2005, the military had evacuated another 25,289 service members from Iraq and Afghanistan for injuries or illnesses not caused directly by enemy bullets or bombs, according to the U.S. Transportation Command. ...

[T]he statistics seem to show that a lot of those health problems are war-related. For example, nearly 37,000 have mental disorders, including nearly 16,000 who have been diagnosed with posttraumatic stress disorder. Over 46,000 veterans of Iraq and Afghanistan receiving benefits from the V.A. have musculoskeletal problems. These are all veterans who within the last four years were considered by the military to be mentally and physically fit enough to fight.

Or from the letter itself:

As you know, more than one in four U.S. troops have come home from the Iraq war with health problems that require medical or mental health treatment. Thus, with more than 300,000 troops having served in Iraq, this amounts to at least 50,000 cases of mental trauma. Moreover, 101,000 of the 431,000 troops who have returned home from service in Iraq and Afghanistan and who have separated from the military, have sought help. This figure shows the Pentagon's official Iraq casualty count of 2,082 U.S. troops killed, and 15,477 wounded as of today, to be inaccurate by several multiples. What we cannot understand is why you are only reporting the total American casualty figure at just over 15,000 when you know that this figure is not an accurate representation of the facts and does not represent the entire picture of American lives affected by the war. We also need to understand where your numbers are coming from and how you arrived at them given the facts and data that has been released from the Pentagon.

As with the national security warrants, maybe all of this is worth it. But, a true republic requires an full and open (or at least a fair facsimile) airing of such facts, so we can obtain a picture of what is going on and decide for ourselves if it is worth it ... and/or to figure out how to handle the effects. But, even though some suggest the news only talks about bad news, the true picture of the true trauma resulting from this war -- not even including the families and so forth -- is not in any way fully reported. This is so even when bare death numbers ... five here, ten there ... are referenced in passing.

The substance of what is going on is troubling enough, but the process ... and like law, democracy is ultimately about due process ... is even worse. A letter in the NYT Review of Books noted that the most troubling aspect of Republicans in Congress today is actually boring, but ultimately quite serious matters like corruption of the rules and budget process. Thus, a book that targeted this was ultimately more important than those with "Bush" and "lies" in the title (Off Center, which -- from the accounts I read -- does sounds boring). And, part of the process is knowing what is going on and really discussing it.

Is this really too much to ask?

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Note: C-SPAN does yeoman work in this area. Over the weekend, the network re-aired some interviews and coverage it filmed in early '05 from Walter Reed, including talks with various people injured in Iraq (and I guess, Afghanistan). One, Maj. Tammy Duckworth later became one of about ten (all but one Democrat) Iraq veterans who will run for Congress later this year.

Some story ... her father also received a purple heart and happened to be buried in Arlington National Cemetary around the time of the interview. She also was not going to let some terrorist who got lucky to change her life. Another soldier, younger guy, talked about how he was fighting for freedom. Both noted they wanted to stay in the military, though a third said, no, I think I'll get my education and spend more time with the family. Powerful stuff with a human face.

Apples and oranges -- I recently listened to a couple announcements of Supreme Court decisions from the bench available at Oyez. Also, one oral argument that was in effect closed captioned. As a small step, would it be too hard to allow C-SPAN to air these? I noted a few weeks back that the front part of the C-SPAN audio on the FAIR orals was Justice Thomas announcing a relatively obscure case as well as accepting a few lawyers to the SC bar. It was a nice touch, even if it was only put in since it would be too much of pain to edit out the first few minutes of the audio spool.

I apologize for putting the two together, in a sense, since they really are not comparable ... except the value of openness and the potential of C-SPAN.

Go Saints! (Congrats Giants)

And Also: Some good stuff in the NYT today, especially personal interest stuff. A nice story about Jets/Bills player connections through marriage/friendship (well, at least something nice happened to them this year), a sad account of someone who was divorced after forty years of marriage, an interesting story about an allergen-free dessert business (unmentioned, it might also have vegan customers), and a good piece by the public editor.

This piece basically says: "yes, I'm with you -- the delay in the warrant story needs to be better explained." He had about thirty five questions unanswered. One might deal with a book on intel that is forthcoming, which probably affected the paper's decision to publish -- to resist being scooped. Does the NYT realize how much face it lost? Do they care?

2006. Well, before needing to do some of the things I need and/or plan to do this year, I can breathe a sign of relief: things started well on the sports front. I was not a lifetime fan, though did stay up late when I was younger watching my old black and white t.v. ... back in the day when NY Yankee games were on Channel 11 (and they weren't that good). The idea back then was to determine if the usual syndicated programs would be on at midnight and beyond (Star Trek, The Honeymooners, etc.), if the game ran late. But, enough on the nostalgia front ... I'm not old enough.

[BTW, horrible loss for San Diego ... playing for basically the chance to knock Kansas City out of the playoffs -- SD was out but have the tie breaker over KS ... they loss their QB instead. Denver played pretty tough for a team that didn't need a win ... SD limped off the scene after beating the Colts two weeks ago.]

The Giants showed their weaknesses last night, and the 30-21 score disguised a much closer game. Thankfully, the terrible Oakland Raiders (led by ex-Giant, and human "second chance" success story when he was at the Giants, Kerry Collins) finally showed their true nature at the end of the game, since the team that scored three points last game (about on par with their recent futility) did not look so offensively challenged yesterday. Likewise, the Giants defense did not look so good for the second straight game at least to that goal line stand. The Giants offense was questionable too, though they had a pair of long touchdowns (and a special team aided TD), stopping in their tracks in three key plays ... two third and short. OTOH, after that slip-up in Seattle, the kicker saved the day ... including a long key field goal.

Ah that goal line stand. Clinging, yes clinging, to a nine point lead ... there was almost four minutes left to play, and a pass interference call made it First and Goal at the 1. Randy Moss -- who had two TD catches for the first time in a long time ... was shunted aside for a run. Well, it is only a yard, right? The Raiders had something like a 4:1 ratio of pass: run, and we saw why here. They did not get that yard. And, it took them (with a failed challenge on 4th and a foot that might very well been a TD) about ninety precious seconds, and three more precious time outs, to do it. But, the Giants still had to start at their own one foot line ... a safety was quite possible, leading to over two minutes for a chance for the tying score -- plenty of time with the Raiders' passing ability. But, chuckle, the Raiders were off sides on the first play. No more safety threat, and only five yards to NFL East leader promise land.

Properly, Tiki Barber (next to his opposite number in Seattle, perhaps the NFL MVP) ran the deciding two plays needed for the First Down. With the team sore and battered, more so after this game, it is unclear how much it has left for the playoffs. It has a home game now and enough veterans/coach passion to not think just getting to the playoffs for the first time in five years is enough. I'm thinking they lose in the second round, especially if they are lucky enough to get more flawed Carolina or Dallas (admittedly, both potentially tough teams, ironically both with former Giants coaches) over the Redskins (though, that team is due to come down from its month plus high) next week. Good season, especially with a rookie QB ... even if 12-4 (and possible a first round bye) was almost for the taking.

I'm hoping for an upset somewhere today ... various games with playoff implications, but only Carolina really has the fear that they will slip. Another thing to look for -- either Carolina or Washington must lose for tonight's game to matter. Go Saints! [One of those very unlikely upsets with playoff implications.]

Update: Guess not. But, the Jets and Green Bay did win.