Abdulrahman Zeitoun et. al.

[Update: As expected, even in his flu weakened state, Glenn Greenwald has a post up about this and will add more later. And, he rubs it in about Obama. Fine. But, the alternative is still worse. People might need more to care about the next election, but that alone is a reason to care. No matter how aggravating it is. Not that I don't get the anger. Well deserved that. More commentary/background.]

Arbitrary imprisonment and torture under any circumstance is a “ ‘gross and notorious . . . act of despotism.’ ” Hamdi v. Rumsfeld, 542 U.S. 507, 556 (2004) (Scalia, J., dissenting) (quoting 1 Blackstone 131-33 (1765)). But “ ‘confinement [and abuse] of the person, by secretly hurrying him to [prison], where his sufferings are unknown or forgotten; is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.’ ”

-- Mohamed v. Jeppensen Dataplan Inc. (dissenting opinion)

Zeitoun is an award winning book concerning a Syrian immigrant with a successful contracting business (and a native American convert for a wife) stays behind to keep an eye on things during Katrina and gets caught in a Kafka-esque nightmare (the last 1/3 of the book). A powerful page turner. An innocent man, trusted by many to protect their property, was seized with three others, not allowed a phone call and kept in prison for weeks while his wife started to believe he was dead.

This was the result of the anarchy in the midst of the storm, though it is hard to justify not finding some means to set up some sort of system where someone like him could not even have contact with the outside world for around three weeks. Even if he was guilty, which he was not, his treatment was cruel and unusual. A basic violation of rights. But, this for some is too much to expect. As the majority in a 6-5 ruling, overruling the panel regarding a civil suit to obtain some relief in a case of extraordinary rendition, just ruled in respect to the anti-American "state secrecy" doctrine in place now:

“This case requires us to address the difficult balance the state secrets doctrine strikes between fundamental principles of our liberty, including justice, transparency, accountability and national security,” Judge Fisher wrote. “Although as judges we strive to honor all of these principles, there are times when exceptional circumstances create an irreconcilable conflict between them.”

Somewhat different facts, same results -- for some people, when it comes to our basic values, actually enjoying them all is too much to ask. Yet another excuse is found, so that:

“To this date, not a single victim of the Bush administration’s torture program has had his day in court,”

As the dissent -- again it's 6-5 and the majority admits they are troubled by the result -- notes: "The majority dismisses the case in its entirety before Jeppesen has even filed an answer to Plaintiffs’ complaint." This is sham justice. It gives aid and comfort to those who say that President Obama (to be generous) in effect b.s. us when he said he would change Bush's policies. As Charlie Savage, who joined the NYT and is an expert in this field notes in the article, in rather harsh language:

The decision bolstered an array of ways in which the Obama administration has pressed forward with broad counter-terrorism policies after taking over from the Bush team, a degree of continuity that has departed from the expectations fostered by President Obama’s campaign rhetoric, which was often sharply critical of President Bush’s approach.

The absurdity of it all is underlined by the fact that the majority blocks even a chance for judicial relief, a chance to show the district judge that there is enough there without the secret evidence. Tying the district court's hands is unjust, but some middle ground might bring forth some semblance of a fair hearing. The majority however -- akin to raising the chance of a pardon to some wrongly accused -- counsels executive and/or legislative relief. If only! What do they think we are, Canada? This besides ignoring the proper role of the courts:

Permitting the executive to police its own errors and determine the remedy dispensed would not only deprive the judiciary of its role, but also deprive Plaintiffs of a fair assessment of their claims by a neutral arbiter. The majority’s suggestion of payment of reparations to the victims of extraordinary rendition, such as those paid to Japanese Latin Americans for the injustices suffered under Internment during World War II, over fifty years after those injustices were suffered [Maj. Op. at 13554], elevates the impractical to the point of absurdity. Similarly, a congressional investigation, private bill, or enacting of “remedial legislation,” [Maj. Op. at 13556], leaves to the legislative branch claims which the federal courts are better equipped to handle.

Given the shoddy basis* (with three no nonsense FDR appointees dissenting) of the start of all of this, it is not too surprising, sadly. This lawsuit shouldn't be occurring. A means should be present to obtain relief. If the U.S. government wants the shield of state secrets, there is a way to balance all those American values without sacrificing one or more. The most obvious is to provide fiscal relief to those wrongly treated. This is akin to use of wrongly seized evidence: pay the piper, if you want to play a wrongful tune. But, that's too much to ask. The majority claims this is met:

In September 2009, Attorney General Eric H. Holder Jr. issued a new policy about future invocations of the state-secrets power, requiring higher-level review before it could be invoked in a lawsuit and promising that it would never be used for the purpose of covering up illegal activity or preventing official embarrassment.

B.S.! What is this lawsuit if not a means to prevent such cover-up, to prevent injustice and un-American behavior from occurring once again? If the government wants to claim that the lawsuit is just about revealing secrets, pay the people the money and/or provide some means of reparation. Provide some relief. But, as with Maher Arar, it does not want to do this. Meanwhile, relief in the courts are repeatedly blocked. Promises that we will not do such things again are made, but the government continues to act in ways that are shameful.

[And More: As noted by a NYT op-ed today, the majority acted as it did "even though it is public knowledge that Jeppesen arranged the torture flights," ensuring us that this was a special case. But, I don't believe it, especially given the overuse of secrecy in the past. Why should I trust the an administration who promised change on the point and gave too much of the same? More "trust us" b.s., when "doubt us" is more appropriate, more American. More appropriate when the government has given us no very good reason to give them the benefit of the doubt. Give them a default judgment. Then, maybe.]

And, without safeguards, what about when a new regime comes into power? When the next 9/11 or Katrina will come? Who will be the next Abdulrahman Zeitoun to be lost in the system, to use a comparison found in the book, like a stray caught in a fishnet, a dolphin or other animal caught by mistake or basically an unfortunate victim of the process? Such as some civilian killed in a drone attack, who all too often are assumed to be somewhat guilty by many people anyhow?

It's all very depressing. I think the courts can manage here, but fine, let's say they cannot. The executive and legislature then should do something. Such is the appeal of the majority here. But, where's the true legislative reform of the state secrets doctrine that was in the works? The Obama Administration doesn't really want one, since it feels their hands will be tied too tightly. Yes, such is what occurs with checks and balances. The travesty is that such things underline how moderate Obama is overall, push comes to shove, such moderation these days supporting conservative things. But, not enough apparently: we need to make things worse!

And, if you aren't going to show any real desire to bring people to justice, provide fiscal reparations or even provide a full airing of what occurred ("let's look forward"), trusting them to take basic power away from the courts to secure justice. 6-5 splits also should go the way of liberty. If it is that close, what the majority allowed here should not be done. If you are so uncomfortable, one or more of the judges should have joined the minority, which again, didn't want to give away the store or anything. Finally, those who think Obama just did this as some sort of thirteen dimensional chess move to test it in court are really kidding themselves.

Can't ask for too much liberty in these times, I guess.

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* Lest we forget, the original state secrets ruling -- discussed here -- had three dissents, the hard-nosed FDR appointees Black, Frankfurter and Jackson. They notably merely cited the decision below, one written in the midst of the Cold War. The opinion by Judge Maris in part noted:

The Government presses upon us the contrary conclusion of the Britich House of Lords in Duncan v. Cammell, Laird & Co., (1942) A.C. 624. The case is distinguishable in that the plans of the submarine Thetis there involved were obviously military secrets and the suit was between private parties. But we do not regard the case as controlling in any event. For whatever may be true in Great Britain 22 the Government of the United States is one of checks and balances. One of the principal checks is furnished by the independent judiciary which the Constitution established. Neither the executive nor the legislative branch of the Government may constitutionally encroach upon the field which the Constitution has reserved for the judiciary by transferring to itself the power to decide justiciable questions which arise in cases or controversies submitted to the judicial branch for decision. 23 Nor is there any [**27] danger to the public interest in submitting the question of privilege to the decision of the courts. The judges of the United States are public officers whose responsibility under the Constitution is just as great as that of the heads of the executive departments. When Government documents are submitted to them in camera under a claim of privilege the judges may be depended upon to protect with the greatest of care the public interest in preventing the disclosure of matters which may fairly be characterized as privileged. 24 And if, as [*998] the Government asserts is sometimes the case, a knowledge of background facts is necessary to enable one properly to pass on the claim of privilege those facts also may be presented to the judge in camera.

Any superiority cited to the U.K. or Canada on these matters are a tad ironic these days. But, the sentiment holds true.

Luca Duda?

"Lucas Duda was 0-for-2, knocking his average to .045." Yes, but unlike Mike Hessman, he showed some life on the field.

Gee, Not Bad

Pitched well, got a RBI on his first hit and wasn't kept in long enough to blow it (as happened once to PM) -- not a bad rookie outing. But, tacking on would have made things easier late! Hessman doing nothing again didn't help. Seriously, the guy is dead weight.

Stem Cell Ruling Update

Update on the embryonic stem cell ruling helps Bush's policy look different (and allow some research to continue hopefully), but perhaps not in a very convincing fashion. Time for legislative action still.

"Adult Movies" (Not Porn)

I agree -- "adult movies" should be defined better, just like ratings shouldn't just be a matter of curse words or body parts. Flashback to my high school intro to letters to the editor: the silliness of giving a film like this an "R" rating.

My .02

GG brings to mind my recent praise of a guest Balkinization contributor here in his respect for comments. The failure of back/forth is one reason I don't like the new Slate comment system. I give my .02 on "errors" here: if they helped, they helped that way too!

Vegan Cupcake Queen

As a vegetarian who tries to be as vegan as possible, this is much appreciated, though I'm not a cook. I bought a kettle since boiling water without one didn't quite work. Vegan alternatives often are quite tasty; the problem is having them easily available!

Now Pitching Oliver Perez ... This Can't Be Good

The OF that usually kills the Mets actually missed a catch, but Pelfry collapsed early. So, it's yet another bad game against the Nats. Those "let's go Mets" Citibank (they play at Citifield) commercials with the mascot are unfortunately timed, besides being a tad annoying.

Christmas: A Candid History

This provides a nice bite sized discussion of another holiday.

Ronald C. Den Otter

With comments closed off or troll dominated discussions, a recent discussion by a guest blogger regarding his new book on judicial review at Balkinization is a nice diversion. If only the book wasn't so damn expensive -- overpriced college textbook price.

27 Runs, Three Games, One Win

More Mets fun. 6-3-18. [Not 6*3=18] Admittedly the last is a laugher, but the other two warrant at least one win, right? And, the last one looked like it was going to be another nailbiter until someone finally had a clutch two out hit and they really added on late.

"Interesting Freedom of Religion Case from Israel"

H/t David Bernstein, who avoids the kneejerk this time around. Basically, a private school is allowed to require neutral dress, even if a teacher submits a religious reason. A fictional account sorta similar, Does My Head Look Big In This? has a different result.

Saturday Thoughts

VC Off The Rails: I check out Volokh Conspiracy to get a taste of another p.o.v. (as I have noted, I probably don't do enough of that though then I find someone who seems to be on my side to be off base, and figure I'm doing okay) and comments that answer it. It has various obsessions like "Obamacare" (next up: LBJ-Care; seriously, how lame -- the SENATE was the primary driver there) and now a Jane Mayer article on the Koch Brothers. Orin Kerr* joined in -- he couldn't get his head around the idea that the article suggesting they gave money in part for self-interest. Mark Field, Dilan Esper, et. al. answer them well.

Alicia Witt: I first watched her years back on Cybil and caught her on Craig recently via YouTube. Also, she plays a mom on my current obsession, Friday Night Lights (S4 is already in the library! but, I'll wait a few weeks to watch the first half). It turns out that besides being a good actress and well hot (she is a bit pale), Witt is also a singer (during one interview, she noted she played piano as a teenager). Good video. BTW, at times, she sort of reminded me of Chelsea Clinton. Or, maybe the other way around. Does she sing too?

Mets Still Stink Watch: Another wasted year and September playing out the string. Yesterday's game was depressing because you figure that when they actually hit (two homers!) and have Dickey on the mound AND play the Cubs, that they would win. Nope -- Dickey decides not to have it that day. In respect to a poll, and having been in both locales, I would pick Wrigley over Fenway. And, not only because they didn't accept out of state ids and Wetteland decided to blow a save (one of three that year) the day I went! Seriously, both were nice. Wrigley might have been a bit more open. Both smaller than a NY-er might be used to.

[And more. The rookie today seemed to have some potential and some good defense from the youngsters -- yes, it's Triple AAA time again -- but the absurdity continues. Two outs plus a strikeout means another out doesn't score ... oh wait! wild pitch scores that run! So, the team is left relying on Niese and hitting to ensure the team is not swept by the Cubs. Having been swept by the Diamondbacks before, this is quite possible.]

Keith Over The Top Watch: Keith Olbermann is somewhat of a tool at times, a caricature of a liberal commentator, though can have some worthwhile content (and his heart is generally in the right place). But, his latest Glenn Beck watch is a bit much. What is with the childish puns? And, yeah per Glenn Greenwald, he is something of a too easy target, but given his viewership and all, it's okay to keep an eye on him. Still, at some point it does get a bit lame.

That's How You Do It: The charming thing about the interview excerpted here (sound clip) is that the person, who had endorsed her in the past, actually challenged her answers. Hey interviewers and "journalists" out there -- it's possible! And, can the establishment Republican running against her actually be that rare bird -- a half-way reasonable Republican? I'll believe it when I see it. She is cute -- she even gave a "Palin wink" in an appearance I found on YouTube. Did she trademark that yet?

And, summer is winding down. Seems about time. I think even many children are ready at some point to move on. New t.v. shows will be starting soon, the football season is upon us, the new Supreme Court term is not too far away and the '10 political season (with all these upset primaries, it has been with us for some time now) will get into full gear. Oh, that's just too depressing. So, the rookie starts today for the Mets, huh?

---

* Kerr is something of a part-time tool and not only given he advises one (at least) on the Senate Judiciary Committee. He joined in the Koch Brothers defense, not getting his head around that they act in part out of self-interest. His serious cred helps, I guess, cover up those times when he is snarky (Kerr has a reputation as nice and all, but he can be very snarky, especially in comments) or promotes hard to take seriously stuff like that.

"Unusual"

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Sherry Colb has a column out entitled "Evaluating the Eighth Amendment's Ban on Only Cruel and Unusual Punishments." It deals with the "unusual" aspect, which often is not addressed when discussing the provision. [See, e.g., how little space is given to it here.] The clause, reasonably enough, is generally understood as a term of art, "cruel and unusual" read together to mean something. As Justice Brennan once noted: "The question, in any event, is [arguably] of minor significance; this Court has never attempted to explicate the meaning of the Clause simply by parsing its words."

Prof. Colb notes "unusual" is a way to limit the discretion that "cruelty" alone might allow -- if something is rare, it is understood to be suspect. But, she notes, rarity alone is not the test of cruelty. If something cruel is popular or there is some precedent, it is still cruel (understanding that this is a matter of degree); some disagreements aside, this should be true in the constitutional sense too. But, as she admits, the text only allows this be to a point. Also, perhaps the unusual nature is done because of "a humane purpose in selecting it," which again underlines the term has to be understood in context.

In his concurrence in Furman v. Georgia (death penalty) (linked above), Justice Marshall discussed the origins of the Cruel and Unusual Punishment Clause. He suggests the use of "unusual" might have been "inadvertent." The use of "illegal" punishments in one draft suggests a core aspect of the concern here -- the fear that an executive (king) would use unauthorized, that is in some sense uncommon (much law at the time judge made "common law") punishments. It is not assumed they would do this for the good of the criminals, but even if they allegedly did, it could very well be misguided if "unusual" punishments were used.

Thus, and people like John Hart Ely Jr. supported this view, "unusual" suggests that there is a type of due process aspect here, a way to prevent "arbitrary" punishments. Likewise, an equal protection component -- if someone is being treated in a way others are not, that is in an unusual way, it is problematic. As suggested above in both directions, this is not an absolute barrier. Just because everyone jumps off the cliff, we need not do it; and, just because no one does something, it doesn't make it wrong. Still, it is a sound general principle, particularly given our system of government and its basic principles.

So, in a constitutional sense, "unusual" can both mean "not common" and "unauthorized." Somewhat akin to Prof. Colb's thesis, the latter definition can be on some level idealistic, like "all men are created equal" holds up as a norm even if slavery is allowed. After all, "unusual" is not found in a vacuum, but in a Constitution with many other provisions. Finally, it all is somewhat relative. If something is present in a couple states (see, e.g., Kennedy v. Louisiana) or for certain groups of people, it is not necessarily "usual." On the whole, it still would be "unusual," since in most cases, it is not a general rule. And, this is basically how proportionality review is now applied by the Supreme Court.*

Majority rule is a basic principle in this country and especially in the context of judicial review of punishments authorized by statutory law, "usual" is a reasonable way to limit discretion. It is still not the only way.

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* Prof. Colb talks about the issue more here, citing Justice Thomas regarding punishments that are allowed but rarely used. As she notes, arbitrary and discriminatory use can result as much as careful application to special cases. And, it is hard to remove something already passed, especially if it is rarely used anyways. Again, it's important to see the sum of the parts here.

"Torture and Littering"

Judge Jay Bybee - he of the torture memo - dissents. Littering is littering, and Bybee finds that the regulation is as clear as a sunny day in the desert. This is the same Jay Bybee who thinks that terms like "torture" and "severe suffering" are so vague that it would be unfair to apply statutes prohibiting them to interrogators who waterboard people and keep them awake for a week at a time, naked and hanging in chains.

-- David Luban

"something creepy"

The question we confront today is what limits there are upon this power of technology to shrink the realm of guaranteed privacy.

-- Kyllo v. U.S.

Democracy Now! today discussed a 9th Cir. case that upheld the power of government agents to go on to your property, under your car, and install a GPS device that would allow them to track your movements 24/7. That is, without a warrant, though the legitimacy of such tracking even with one would be an interesting matter in various instances too. Is it really that hard to obtain a warrant when the plan is to keep track of someone's movements to such a degree? Again, even with one, tracking someone for civil reasons or whatnot might be troubling in certain instances.

As discussed here, the legitimacy of GPS use by the government has been a repeated issue for the lower courts, which has divided on the issue. The matter has been discussed here as well, I suggesting that "reasonable" should be taken to mean use of some common sense judgement. A GPS device is not like a beeper; the Supreme Court in such a case in the early 1980s noted (citations omitted):

Respondent does not actually quarrel with this analysis, though he expresses the generalized view that the result of the holding sought by the Government would be that "twenty-four hour surveillance of any citizen of this country will be possible, without judicial knowledge or supervision." But the fact is that the "reality hardly suggests abuse," if such dragnet-type law enforcement practices as respondent envisions should eventually occur, there will be time enough then to determine whether different constitutional principles may be applicable. Insofar as respondent's complaint appears to be simply that scientific devices such as the beeper enabled the police to be more effective in detecting crime, it simply has no constitutional foundation. We have never equated police efficiency with unconstitutionality, and we decline to do so now.

We are at this point. The case at issue in the broadcast suggests what it is at stake, though worse cases might be imagined:

Juan Pineda-Moreno was a suspected marijuana dealer. The police strolled up to his car — which may have been in his driveway or on the street — and attached a tracking device, data from which proved instrumental in prosecuting him. Pineda-Moreno appealed his conviction, alleging that his Fourth Amendment rights were violated because the po-po entered “the curtilage of his home” to place the devices.

Judge Kozinksi, the court jester of the libertarian wing over there, was outraged:

I don’t think that most people in the United States would agree with the panel that someone who leaves his car parked in his driveway outside the door of his home invites people to crawl under it and attach a device that will track the vehicle’s every movement and transmit that information to total strangers. There is something creepy and un-American about such clandestine and underhanded behavior. To those of us who have lived under a totalitarian regime, there is an eerie feeling of déjà vu. This case, if any, deserves the comprehensive, mature and diverse consideration that an en banc panel can provide. We are taking a giant leap into the unknown, and the consequences for ourselves and our children may be dire and irreversible. Some day, soon, we may wake up and find we’re living in Oceania.

He was in dissent, but recall that Scalia wrote Kyollo. Kozinski, who would probably make a great justice (I wouldn't like some of his rulings, but would take him over Roberts or Alito -- hey, he did the chief judge thing, right?) also noted that if the defendant was rich, he could avoid this sort of thing with gates and such. K. noted that diversity is promoted in the judiciary, but truly poor people don't become judges. Some were poor once though; like his childhood memories, that can matter.

Kozinski's expression of a "reasonable expectation of privacy" has one more notable aspect. He deals with one of the legal fictions of Fourth Amendment law: the fact we leave open our lives to third parties in limited ways (such as bank records) means we have no reasonable expectation of privacy over them from government surveillance. So, a government can obtain a collection of phone numbers you called, since it is available from the phone company. Any limitation here on Fourth Amendment grounds is basically merely statutory. This is absurd.

The majority here noted that children can go where the government agents did to place the GPS device. As the dissent noted:

The panel authorizes police to do not only what invited strangers could, but also uninvited children—in this case crawl under the car to retrieve a ball and tinker with the undercarriage. But there’s no limit to what neighborhood kids will do, given half a chance: They’ll jump the fence, crawl under the porch, pick fruit from the trees, set fire to the cat and micturate on the azaleas. To say that the police may do on your property what urchins might do spells the end of Fourth Amendment protections for most people’s curtilage.

"Reasonable" should not just be some complex term of art that allows us to ignore such realities because of some logical syllogism to "to shrink the realm of guaranteed privacy" to a degree to not make it worthy of its name. And, since reasonable expectations of privacy does not fall into any exact formula, determining the contours is partially up to us. Kyollo* falls both ways in that respect -- if something is "in general public use," privacy diminishes. If we accept a loss of privacy, the Supreme Court will likely not save us from ourselves.

For good or ill, this matter will likely be decided upon by the Supreme Court in the next few years.

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* Kyollo involves a special locale of privacy, the home, as does this case (at least, its outer perimeters). Scalia has shown some concern for the privacy of automobiles.

Scalia's majority opinion also speaks of the intimate nature of the home, which has been used to secure a general right to privacy over activities inside the home, even when a search warrant or otherwise legitimate invasion is present. He surely does not think that follows, but so be it. Poe v. Ullman (Harlan, dissenting) still holds true.

Nor does his reference to "common law" understandings lead him (as compared to many of us) to accept that the common law develops over time, past the original understandings of the provision. Or, at least, not to the extent of some (cf. his plurality here with O'Connor's concurrence). If the Framers accepted that "common law" is relevant here, this development would seem to be part of the package.

Friday Night Lights: Third Season

The DVD set had only one commentary and deleted scenes, which is a gyp, but good comeback from a dubious second season. Some new characters (wish there was more of Devin) and a wonderful "hard rain" episode. Some great moments in the last two as well.

An Inconvenient Friend

I like the disclaimer in An Inconvenient Friend, a good work of "urban Christian" fiction, that says anything referenced that seems real is "intended to give the novel a sense of reality." Better than ignoring such references with a disclaimer that says it's just fiction. Like some celebrity makes an appearance or something. So annoying.

Maybe, a word about the book. Let me first say that the author is either very gracious and/or a diligent person, since she is sure to thank everyone she finds who has said nice things about it -- I have never seen so many thank yous from the author over in Amazon comments. Second, I have read some uplifting books of this nature a few times, and do appreciate when it is written in a nice easy to read style. This includes a few amusing asides, even if now and then, the writing is a bit rough. I can see why the target audience -- black Christian women -- would enjoy it.

Not fitting in any of those categories at the moment, clearly the book can be enjoyed on some level by other readers as well. The book concerns a two women, who are in some ways alike (especially in their backgrounds), but in a very different place now. One is a successful wife of a doctor (Angelina) and leader at her church, though has problems with her marriage, and sadness from losing a child a few years before. The other is a younger woman, who plans to get to know her at church to take her place, just having an affair with her husband not doing it.

Someone with a bit of biblilcal knowledge would nod knowingly -- her name is Samaria Jones. Oh, Angelina (another symbolic name) has gone to a doctor to deal with fertility issues. "Dr. Luke," that is. That my friend, is an inside joke or reference. Samaria falls sway to Angelina's Christian message but continues to try to steal her a husband. Samaria might in the end be saved, but it all doesn't end well. This is part of the interesting aspect of it all. We only know Angelina forgave her husband from a preview of the sequel. There is clearly a "to be continued" vibe here.

[Angelina also informs that "to forgive" does not necessarily mean you will continue to be with the person involved. How she will end up with her husband and maybe Samaria -- her fate is left open -- perhaps will be dealt with in the sequel.]

The book has an interesting device -- Samaria narrates but we also are privy to Angelina's thoughts, though those chapters are done via a third person narrator. The very different perspectives both come off pretty well as does the contrasting locales, from the projects to an upper middle class (or rich) black church and home. We understand why Samaria acts like she does and quickly are rooting for her to find the right path. The book puts this to be faith in God, but in a big way it is faith in yourself (your inner voice, your conscience) as well as the need for special people close to you to care about and have them care about you. Thus, you can view events from a type of secular way, though I think the deepness of feeling and so forth involved still has a "religious" aspect to it.

I think it might be a good film too. Anyways, it was a good read.

Credit Card Law

The new credit card protections is but one of many significant pieces of legislation that are often selectively ignored when talking about Obama and a Democratic Congress. They might not do enough, but replacing them with Republican boobs won't make it better either.

R.I.P. Dorothy Sucher

And Also: At the end of the playoff waiver deadline, the Mets disposed of another marginal player, an apparently nice guy that I wish well on his new playoff bound team. Meanwhile, guess who popped up the other day? For cruelty sake or just for a laugh.

Ms. Sucher, who was a largely volunteer reporter, columnist and associate editor of The News Review from 1959 to 1970, worked at the newspaper again from 1993 to 2004, including two years as editor in chief. In the interim she had been in private practice as a psychotherapist, started writing books and was a leader of the women’s movement in Maryland. In 1978, she became a coordinator in the state for the National Organization for Women.

-- Dorothy Sucher, Reporter in Press-Freedom Case, Dies at 77

Reporter, psychotherapist [on that issue, see this], feminist and mystery writer. Some lady. She was also involved in a lesser known libel case that early on helped set the limits of targeting the press for controversial reporting of public affairs. It involved a small local paper reporting on a controversial land deal:

The petitioners are the publishers of a small weekly newspaper, the Greenbelt News Review, in the city of Greenbelt, Maryland. The respondent Bresler is a prominent local real estate developer and builder in Greenbelt, and was, during the period in question, a member of the Maryland House of Delegates from a neighboring district. In the autumn of 1965 Bresler was engaged in negotiations with the Greenbelt City Council to obtain certain zoning variances that would allow the construction of high-density housing on land owned by him. At the same time the city was attempting to acquire another tract of land owned by Bresler for the construction of a new high school. Extensive litigation concerning compensation for the school site seemed imminent, unless there should be an agreement on its price between Bresler and the city authorities, and the concurrent negotiations obviously provided both parties considerable bargaining leverage.

The articles cited allegations of "blackmail," which was taken to be an allegation of criminal conduct that was subject to libel proceedings, particularly because the paper knew or should have known the allegation was false. The paper was sued and lost to the sum of "5,000 in compensatory damages and $12,500 in punitive damages." A relatively small but significant sum for a small publication in the 1960s, putting aside legal costs. The Supreme Court reversed, noting a public official was involved, so a higher standard was in place for First Amendment purposes, and anyways, it was a fair reporting of public proceedings, "blackmail" used in a purely rhetorical sense. Likewise, the article itself made this clear.

The opinion was unanimous, though Justice White concurred on narrower grounds (Douglas/Black on broader ones), providing a clear-cut reaffirmation of basic First Amendment values. It might be an easier case given all the particulars, the public hearing and all especially, but it still sets forth basic values regarding preventing "the infliction of financial liability upon the petitioners for publishing these two news articles would subvert the most fundamental meaning of a free press, protected by the First and Fourteenth Amendments."

Along with the rest of her rich life, it is well to remember Dorothy Sucher and those like her for that reason. After all, though she wrote two mysteries and a book on gardening, her attempt to write about her involvement in the case didn't work out, apparently because of lack of interest.

The "nobody-could-have-known" excuse and Iraq

What GG said. Such tired b.s. FU.

Odds and Ends

Obama gave a speech on how the combat stage is over in Iraq. Digging out of a stupid hole is important but thankless. Pass. Another sad Mets game. Pass. S3 of FNL, including "the sex talk" (good analysis), continues to be good. Tyra, Tami and Matt are my favs.

Drone Attacks

Pretty good article on drones, among many. Military conflict will lead to deaths of innocents; the struggle is over cost/benefit ratios though openness to judgment by third parties etc. matters too. More here, here and here from my end. Overall, doubt the value pragmatically.

Volokh Conspiracy Citation

EV cited a bit of Eighth Amendment trivia that I flagged in comments some time back. I never saw much logic in not incorporating the Excessive Fines Clause; like the 3A, it's more a matter of never having a case or dealing with it another way. Glad to help a bit.

Friday Night Lights: Third Season

The middle seasons were short so I thought they might use them to cover one school year, but the third starts by jumping ahead, including various plot stuff. Matt's mom is good; as always, the characters shine. Good so far if not as good as S1.

Supreme Court Watch

Justices Kennedy (Legally Blonde inspires Chinese students), Sotomayor (crickets are in trees, not dorm rooms) and Ginsburg (see here) gave talks broadcast on C-SPAN over the weekend. Live and learn. So, the Supreme Court of Canada televises orals, huh? Kudos.

TPM Improves Comment System

Not that it was a great loss, I pick up pennies to compensate for all the .02 I give online, but TPM has admirably improved its comment system. I never could log on before; now I did so without a hitch. It even has an edit after post function. Quite helpful for some of us.

Ceremonial Deism by Beck and Company

[Edit: Maybe, the criticism did affect the final result, so "overhyped" is debatable.] Many praised it for respecting his memory as it did in a sort of vanilla way, his edges and social message blunted. Like ceremonial deism, how much this honors his memory is unclear.

Drop Dead Diva Season Finale

Again, the law stuff was a bit off (including a sexting subplot right out of Slate), but there was some good character stuff (such as a flashback with Deb & the cat commercial). Didn't care for the cliffhanger though even without Grayson getting hit by a car!

In July

Various people at Netflix and IMDB likes this German romantic comedy / road movie ("July" is a woman's name) but I found it too unbelievable and ultimately not that funny or endearing. The first turned me off, the second didn't save it from the first thing.

6-3 (Men/Women)

And Also: With Reyes out, how surprising was tonight's 2-1 win by the Mets against the suddenly on a roll (sweep of Phillies) Astros? Figgy pitched for the Astros, again well enough, but the Mets hung on in the 9th. Jets, down 6-5 at one point, had about as much offense.

Re-examining a past issue, DL discusses the value of having three women on the Supreme Court, two of them (along with Kennedy) on C-SPAN tonight. This seems to me akin to the logic of the importance of women on juries, quoted here respecting federal trials, the original written before Kagan was born:

The thought is that the factors which tend to influence the action of women are the same as those which influence the action of men -- personality, background, economic status -- and not sex. Yet it is not enough to say that women when sitting as jurors neither act nor tend to act as a class. Men likewise do not act as a class. But, if the shoe were on the other foot, who would claim that a jury was truly representative of the community if all men were intentionally and systematically excluded from the panel? The truth is that the two sexes are not fungible; a community made up exclusively of one is different from a community composed of both; the subtle interplay of influence one on the other is among the imponderables. To insulate the courtroom from either may not, in a given case, make an iota of difference. Yet a flavor, a distinct quality, is lost if either sex is excluded. The exclusion of one may indeed make the jury less representative of the community than would be true if an economic or racial group were excluded.

Studies on the point were cited in the 1970s opinion here. A judge, like a juror, has the responsibility of weighing facts with various perspectives helpful here as well. Sex is one such perspective that should be fairly represented; not the only one surely. In that respect, the Supreme Court -- by religion (six Catholics, though of at least three varieties, three Jews, all basically of the liberal/probably largely secular, variety), background, experience, etc. -- is still unbalanced.

It's nice that there are three women there, but the unbalanced representation of people from mostly elitist backgrounds et. al. (down to the number from the New York City greater area, a majority in itself if you toss in Alito) -- which will get less coverage -- not so much.

"U.S. Wary of Example Set by First Military Tribunal Case"

That would be Omar Khadr. Solution: don't try him that way. It's a lousy call on many levels. Talk about self-inflicted wounds.

Lightlife's Smart Dogs

Lightlife's Smart Dogs are truly amazing. They tasted exactly like regular hotdogs and even better. These veggie links cook fast and do not taste rubbery. If you switch them on your children they will not even notice the difference. I have tried other veggie dogs and have found them to be disgusting. This product by far has truly impressed me as far as taste and calorie intake.

Well, a bit less emphatically, I do like them.

THE PLOT: The Secret Story of The Protocols of the Elders of Zion

Will Eisner, a famous cartoonist, ended his career with this powerful graphic novel that tells the story of the biggest and most infamous anti-Jewish fraud of recent times.

The power to deny choice is again not only in the courts

And Also: Roy Oswalt in the outfield late because of an ejection, just one bit of recent craziness. But, as to the Mets, Misch is pitching okay enough, but errors and lack of run support is just not giving him a chance. Not as bad as some, but for a fifth starter, that won't work.

[The below is in reply to Dahlia Lithwick's article on the latest from Ken Cuccinelli, this time regarding abortion regulations. More here, a good first stop on reproductive issues.]

Two major themes come to mind here.

[1] The real and practical power executive officials can have in the application of the law, especially in the current world. The stem cell ruling just handed down underlines that the law is often open-ended enough that there is a lot of individual discretion here. And, even if the discretion is used unreasonably, it will take a long time to address the subject by long drawn out lawsuits or legislative action that can be subject to executive vetoes or usual legislative delaying tactics.

[2] The day to day protection of reproductive freedom -- as highlighted as well by Rachel Maddow's segment last night -- can often depend on uneven application of fairly technical rules regarding medical procedures and such.

Before Planned Parenthood v. Casey, there were at least five votes on the Supreme Court to guard against this, especially when it took place early in the pregnancy. The understanding was there that this was not really a neutral application of state regulation of medical procedures, but singling out a certain procedure on moral grounds. In a way that intentionally or at least directly interfered with a woman's right to choose. Some felt the courts were micromanaging, but the justices knew what was going on, including swing vote, Justice Powell.

Casey opened the path to more and more regulations that do not nullify choice but make it more difficult and expensive (which does in various cases have the net result of denying a girl or women the ability to have an abortion), as here resulting in possibly closing down many clinics because the (needless) requirements are too expensive. The interpretation here sounds like the road to the next big case where the Supreme Court expressly upholds such impediments even for first trimester abortions. It won't block a single procedure, but inflict a result across the board.

The A.G. here can only wish to lead the way.

"Rational Basis" Is A Bit Generous

And Also: Bad news for Troy Davis. It's hard to prove actual innocence on review like that, but the judge did questionably keep some evidence out.

When discussing the Prop 8 case, some reference is made to the need for laws to have a "rational basis." It actually is a bit generous to focus on "rational basis" when dealing with gender/sex and fundamental rights such as marriage. At least, as the term is usually defined by the federal courts; some state courts, such as the one involved in the Massachusetts marriage case might be somewhat more strict, even in economic matters.

This is useful to remember because some might find it troubling to submit all laws to some "rational basis" test subject to (often imperfect) judgment of federal judges. As a matter of limiting judicial discretion and focusing on certain important matters, this test is usually very low as to be nearly non-existent if no explicit provision (the Ninth Amendment, notwithstanding) of the Constitution is violation. For good or ill. But various fundamental rights, including those unenumerated (except in general terms, such as "liberty") rights such as marriage and "suspect" classifications like sex/gender* are given "heightened scrutiny," a higher test required.

As to gender:

Without equating gender classifications, for all purposes, to classifications based on race or national origin, [n.6] the Court, in post-Reed decisions, has carefully inspected official action that closes a door or denies opportunity to women (or to men). See J. E. B., 511 U. S., at 152 (Kennedy, J., concurring in judgment) (case law evolving since 1971 "reveal[s] a strong presumption that gender classifications are invalid"). To summarize the Court's current directions for cases of official classification based on gender: Focusing on the differential treatment or denial of opportunity for which relief is sought, the reviewing court must determine whether the proffered justification is "exceedingly persuasive." The burden of justification is demanding and it rests entirely on the State. See Mississippi Univ. for Women, 458 U. S., at 724. The State must show "at least that the [challenged] classification serves `important governmental objectives and that the discriminatory means employed' are `substantially related to the achievement of those objectives.' " Ibid. (quoting Wengler v. Druggists Mutual Ins. Co., 446 U.S. 142, 150 (1980)). The justification must be genuine, not hypothesized or invented post hoc in response to litigation. And it must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females. See Weinberger v. Wiesenfeld, 420 U.S. 636, 643, 648 (1975); Califano v. Goldfarb, 430 U.S. 199, 223-224 (1977) (Stevens, J., concurring in judgment).

As to marriage: "supported by sufficiently important state interests and is closely tailored to effectuate only those interests."

"Rational basis" is a weaker test:

We have attempted to reconcile the principle with the reality by stating that, if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end. See, e.g., Heller v. Doe, 509 U. S. ___, ___ (1993) (slip op., at 6).

["any reasonably conceivable state of facts that could provide a rational basis for the classification"]

The fact that rational basis is not met underlines the weakness of the case. But, the onus is on the state. Some logical rationale or one that has some purpose that is not narrowly tailored is not enough. This is the clear problem of most arguments that even have a shred of logic -- for instance, let's say marriage is deemed important for children, and heterosexuals are more likely to have children by mistake. Marriage serves as an institution that safeguards the results. All the same, this doesn't explain why you have to deny marriage rights to same sex couples, putting aside that they too have children that special favoritism would harm. And, only a limited fraction of married couples would be covered anyways. The state interest is not "narrowly tailored" and is based on "overbroad generalizations."

Any reasonable use of "rational basis" would suggest bans on same sex marriage [you need not be "gay" or "homosexual" to obtain one, so "gay marriage" or "homosexual marriage" appears to me misleading] while different sex marriage are allowed does not hold water. Fantasies about preventing polygamy or question begging appeals to tradition [weakly followed in California, since traditionally domestic partnerships with nearly all the rights of marriage was not in place] aside. The term, however, is sometimes used very loosely, especially when regulating economic matters. So, there is some weak claim of a case there. I address the matter here.

But, since marriage rights and/or sex discrimination (the claim here seems to me largely a backdoor equal protection claim in the first instance -- you have to show that classification by sex is illegitimate in the marriage context) is involved, a stronger case must be met. The law specifically favors a partner of a certain sex. Homosexuality clearly is involved as well but the standard of review there has not been firmly established though even there rational basis cannot merely be met based on tradition or dislike. And, a good case can be made that heightened review is warranted there as in the case of sex.

The lack of rational basis has led the Supreme Court to not need to firmly address this matter in the few cases where it was relevant though some think "rational basis" was applied more strictly here on the down low. Maybe so, but the bottom line holds: marriage and sex discrimination clearly does warrant heightened review, making Prop 8 and other comparable burdens that much harder to defend.

---

* It is said that Ruth Bader Ginsburg used "gender" in the 1970s because "sex" discrimination sounded a bit too risque. But, the terms are not really interchangeable. "Sex" is biological, "gender" is cultural. "Masculine" is not the same thing as "male." A butch lesbian is "masculine" but not "male." No matter how much you act like a female, you had the right to vote in 1900, unless there was some other reason you were deprived of the suffrage. The Nineteenth Amendment speaks of "sex" not "gender."

This is important because a large part of this issue rests on what is deemed to be the "natural" activities of each sex, which turns out to be more a matter of societal gender roles. It is possible to talk of "gender discrimination" and know of what you speak, including arbitrary gender roles assigned to a certain sex. But, separating the terms has its benefits too.

Embryonic Stem Cell Funding Ruling

And Also: I like Laura Linney, but as with some past efforts, The Big C on Showtime is not really a great use of her talents. Unpleasant characters don't help. It's like Weeds, I guess -- sounds like I should like it, but the style annoys me.

[And Also: In the "well I have to be at least a minor tool or I will ruin my cred department," Saletan calls the ruling "crazy," but says it is not really the job of the courts to settle the question. The question here is the actual meaning of the provision, genius. The fact that the Senate is where majoritarian legislation goes to die also isn't referenced -- the Dems have a majority now, so it should just be so easy. Well, if life was sane, yes.]

On the hot button judicial review front:

A U.S. District Court judge's ruling yesterday halting the federal funding of embryonic stem cell research with a preliminary injunction pending a trial has left the scientific community stunned, and Congress wondering if any next steps are possible in an election year.

As on might recall, one of President Bush's first "serious moves" was an extended reflection on how to compromise on the stem cell funding issue, resulting in a much criticized "compromise" that allowed some funding on existing stem cell lines, a compromise that very well might be deemed illegal under this ruling. The issue was clearly important to him:

President Bush issued the first veto of his five-year-old administration yesterday, rejecting Congress's bid to lift funding restrictions on human embryonic stem cell research and underscoring his party's split on an emotional issue in this fall's elections. ... Some conservatives also criticized the veto. "I am pro-life, but I disagree with the president's decision," said Senate Majority Leader Bill Frist (Tenn.), a heart surgeon who is weighing a 2008 presidential run. "Given the potential of this research and the limitations of the existing [human embryonic stem cell] lines eligible for federally funded research, I think additional lines should be made available."

It would be ideal if such legislation was passed again, this time the President presumably would sign it into law, but the idea that something even some conservatives support would actually get through the current basket case U.S. Senate is somewhat unclear. The lawsuit targeted an executive order that tried to expand funding restricted under Bush (rescinding a more open policy under Clinton) and still stay loyal to a current funding barrier, regarding:

(1) the creation of a human embryo or embryos for research purposes; or (2) research in which a human embryo or embryos are destroyed, discarded, or knowingly subjected to risk of injury or death greater than that allowed for research on fetuses in utero under” applicable federal regulations.

Lest we get a totally wrong idea here, the district court judge [D.C., so this isn't just about research in institutions in one part of the country, but funding at large] was not just being a "wingnut" or whatever regarding this issue. First, he originally rejected the standing of the plaintiffs, who were concerned about protecting embryos and competition of funding (wishing to obtain government funding for another type of stem cell research), but was overturned as to the second claim. The reversing panel did lean conservative, but the reasoning could easily one day apply to a liberal group seeking funding.

Second, he rested his argument on the meaning of the statute, not some overall belief that stem cell research was wrong. Again, he originally would have tossed the suit out on standing grounds. This puts a somewhat (but see below) softer light on this dubious argument, though the "balance of hardships" analysis [last bit added] still is rather weak:

The balance of hardships weighs in favor of an injunction. Defendants argue that two interested parties would be injured if the Court issues an injunction: ESC researchers and individuals who suffer from diseases that may be treatable in the future as a result of ESC research. The Guidelines give ESC researchers, like plaintiffs, the opportunity to compete for NIH funding. The injunction, however, would not seriously harm ESC researchers because the injunction would simply preserve the status quo and would not interfere with their ability to obtain private funding for their research. In addition, the harm to individuals who suffer from diseases that one day may be treatable as a result of ESC research is speculative. It is not certain whether ESC research will result in new and successful treatments for diseases such as Alzheimer’s and Parkinson’s disease.

Plaintiffs’ injury of increased competition, however, is not speculative. It is actual and imminent. Indeed, the Guidelines threaten the very livelihood of plaintiffs Sherley and Deisher.

He wanted to hold that the harm to the plaintiffs here was speculative but was overruled. But, if the regulations were legitimate, the argument would still fall -- embryonic stem cell researchers would be wrongly denied funding. The idea that this would not in some fashion affect private funding also sounds -- to be generous -- questionable. See also here. So, the bottom line rests on the judge's interpretation of the statute. Judicial review allows overriding executive and legislative action when it runs counter to the law of the land, including the federal law being executed. [Art. VI]

President Obama,* and Bush in a lesser way, in effect thought the provision barred the actual destruction of embryos, not all research on the product of such action. Clinton as well. After all, if you allow research on existing lines, and give a penny of government money to someone connected to it, the alternative would be to be supporting "research in which" an embryo is destroyed. The use of the present tense appears to prevent funding of direct and active events, not the result thereof. See here for a scientific perspective [including comment "Zach"].

The judge disagreed:

This prohibition encompasses all "research in which" an embryo is destroyed, not just the "piece of research" in which the embryo is destroyed. Had Congress intended to limit the Dickey-Wicker to only those discrete acts that result in the destruction of an embryo, like the derivation of ESCs, or to research on the embryo itself, Congress could have written the statute that way.

The important thing to remember here is that this is not merely about a reasonable interpretation of the statute in question, though many don't find this to be one. Under what is known as "Chevron deference," if a statute is silent or ambiguous, administrative agencies are given the discretion to put forth a reasonable interpretation. This is one reason why who appoints these people and who fills the positions are so important -- there is a great level of discretion, which can have significant impact in lots of areas. Something to keep in mind when votes depend on personal likability or some other such rationale.

But, the judge here held that the provision -- at least as a preliminary matter -- does not appear ambiguous. So, discretion is not there. This is dubious at best. At the very least, there appears to be some debate over what the provision allows, even if on balance you think Bush's policy (which again very well might have fell under this ruling) is the best. Again, this isn't just about morality or whatever -- it is about what the law says. Not what Obama should do even ala Bush, but what he must do. An injunction of significant funding should not rest on such a slim reed. Is this a case of a judge overruled who bends the other way?

As seen in the Prop 8 battle, this is long and drawn out process. The best policy in these cases is to have Congress pass a new law that clearly (as clear as they can) sets forth the rules. But, modern realities hinders such votes, especially in controversial areas. Still, stem cells is one of those areas where there is some bipartisan support, so there is hope. As to advances in the area, the idea that developments have made the matter moot is rather dubious.

To be continued.

---

* In part:

The Obama administration expanded the number of stem cell lines created with private money that federally funded scientists could research, up from the 21 that President George W. Bush had allowed to 75 so far. To qualify, the NIH insisted on evidence that the woman or couple who donated the original embryo did so voluntarily and were told of other options, such as donating to another infertile woman.

Some were upset he didn't go further; I do not claim to know the ins and outs of the rules set forth. Still, baby steps is a norm here -- see also, his administration's piecemeal attempts to protect same sex couples when federal law allows them to do so.

R.A. Dickey

Not just his performance is refreshingly different. [A missed double play and questionable call opened up for a seventh inning home run, but the team actually showed life and won in the 9th against actual talent. Even Castillo shined. Win one for R.A., huh?]

Invisible Monkey

That's funny.

Stem Cell Ruling

Fine. Pass a new law, clearer law. Congress tried but it was vetoed. A few Republicans actually supported it, but who knows if they are less sane over in the Senate now. Admittedly, that's not something to bet the house on in many cases. But, Congress is ideally the place.

Sunday on TV

And Also: The Girls Who Went Away: The Hidden History of Women Who Surrendered Children for Adoption in the Decades Before Roe v. Wade by Ann Fessler (who was such a child) discusses the subject with many first person accounts. Well written and very empathetic.

As summer starts to fade a bit, Sunday Night Lifetime dramas are closing out their season.

Drop Dead Diva had a somewhat silly plot -- a man dresses up as a clown at work as a way to grieve for his wife (he has no case), but uses it to address the feelings of Jane and Grayson. Jane (with a nice assist from Stacy, who had a chance for a subplot of her own -- we rarely see her get a bit serious) believes it is necessary to honor the memory of "Jane" -- after all, she is gone but no one has grieved, since no one knows she has died. It was nicely done. Kim, who is a bit of a you know what but still has a sensitive side, also got a chance to get personal.

There is a two hour season finale left but Army Wives did end things, this time without a cliffhanger of sorts, at least one involving some violent event. It appeared that it might when Gen. Holden was captured, but surprisingly the plot wound up by the mid-point of the episode. This is a bit curious -- if you are going to do something like that, why do so in such a brief fashion? Handled fairly well though. Pamela (job offer/Chase wanting her back) and Jeremy (marriage proposal) did leave us hanging, but the episode mostly ended up on a clean note (high school graduation, baby born, back on full duty).

It was overall a good episode, including a couple extra touches, like Pamela's partner upset at how he "settled" (or was it being "content"?) in his career. A wife grieving for her husband (with a nice regional accent, not some bland voice) and solider trying to be able to recall a traumatic event in therapy also was included. It was a particularly rich episode. Like in movies, that often is a sign of a good complete package. Anyways, Denise having a baby even things out some -- two seems to be the required number of kids, at least at some point. Joan just started late, that's all.

While I'm here and before I start watching S3 later on, a bit more on Friday Nights Lights S2. As I briefly noted, I did not really like it as compared to the 1.5 seasons (front/back) I have seen thus far. It didn't help that the season is fill with downers. The coach going to TMU was like some bad idea disposed of quickly; meanwhile, his daughter has a hard time of it (and is pretty bitchy about it), while her ex has a short fling with a live-in health aide (one of several questionable affairs of the characters). I wasn't totally on board with that (though I guess could believe it), besides things again ending on a bad note.

It was not just that the story lines were a bit depressing, but it seemed like the characters were a bit forced at various times. It is a bit hard to explain, but it seemed they were much smoother the first time around, and in the Fourth Season. There were various good touches (Tyra/Landry was nice, Buddy taking in the guy etc.; and some of the hard to take stuff, including the postpartum depression was well done at times), but again, I didn't feel the need to fast forward in the first season, which was a third as long. The second and third season are in fact almost like one extended season, the second ending before football season even ends.

Well, S3 is on its way, and others do say it is better. As to the first part of S4, I hope they re-show the episodes as a lead up to the new season. If not, they will soon be available on Netflix. Again, I love these characters, even if the plots in S2 were not to my liking. One more thing: yeah, I know Peter Berg, but as an actor!

Another Reason Lots Of People Have To Go

Today's 2-1 loss to the Pirates, the dregs of MLB, underlines the state of the Mets. Going 4-3 against the Astros and Pirates, laughable props for showing a bit of life against the Pirates, is pathetic. Even if some Cubs fans, some finale for Lou guys, would have little sympathy.

Latest Jen McCreight Words of Wisdom

A recently discovered kewl role model gave a good speech on "walking the fine line between controversial, interesting events and needlessly offending people" that reflects how I try to be online. The need of some to be crude, even if to "trolls," turns me off. More Jen!

Julian Assange Update

Since someone just looked at my Wikileaks post, a quick update. For those pissed off at the lax and "dangerous" nature of the leak. And, for the mighty convenient allegation of a crime.

9/11 Account

Joshua Marshall requested an account of 9/11, and if asked, I would also cite the 9/11 Commission Report. Did not read the others.

Perils of Fiction

Judicial Nominee? You Can Talk Too

In a 5-4 ruling, the Supreme Court held in the negative on this point:

The question presented in this case is whether the First Amendment permits the Minnesota Supreme Court to prohibit candidates for judicial election in that State from announcing their views on disputed legal and political issues.

The primary dissent was written by Justice Ginsburg, who supported a more restrictive rule for judicial elections, which makes her supportive comments on Justice Kagan's approach during her hearings understandable. Justice O'Connor worried about the impartiality of judicial elections, but deemed the ban unconstitutional under under the First Amendment. Her approach continues to be to support changing them as a policy matter: if you want judicial elections, the concerns addressed by the dissent come with the program.

Justice Scalia in the majority opinion noted that the key issue here was to avoid impartiality, that is, partiality to a certain specific party. It was not to avoid voicing an opinion on an issue, which at any rate does not mean you cannot change your mind once you actually became a judge. Pretending a judge did not have a side on issues was if anything a bad idea:

A judge’s lack of predisposition regarding the relevant legal issues in a case has never been thought a necessary component of equal justice, and with good reason. For one thing, it is virtually impossible to find a judge who does not have preconceptions about the law. As then-Justice Rehnquist observed of our own Court: “Since most Justices come to this bench no earlier than their middle years, it would be unusual if they had not by that time formulated at least some tentative notions that would influence them in their interpretation of the sweeping clauses of the Constitution and their interaction with one another. It would be not merely unusual, but extraordinary, if they had not at least given opinions as to constitutional issues in their previous legal careers.” Laird v. Tatum, 409 U.S. 824, 835 (1972) (memorandum opinion). Indeed, even if it were possible to select judges who did not have preconceived views on legal issues, it would hardly be desirable to do so. “

The case was at issue in a recent lower court ruling involving judicial elections, Bauer v. Shepard, summarized at Findlaw:

In plaintiffs' challenge to certain provisions of the Indiana Code of Judicial Conduct, claiming that they refrain from speaking about controversial issues such as abortion or from filling out questionnaires about abortion sent by the Indiana Right to Life, Inc., because they fear the prospect of sanctions under the Code, district court's holding that all of the contested provisions are constitutional is affirmed where: 1) district court's judgment that a plaintiff's challenge to the pre-2009 Code became moot is modified as it is unripe; 2) the fundraising provisions are constitutional; 3) the partisan-activities provisions are constitutional; 4) the "commits clauses" provisions are not overbroad; and 5) the recusal clause does not present a constitutional issue at all.

Again, voicing one's position on various sensitive matters, including matters of law, was not deemed in violating to said code of conduct requiring the usual freedom of bias or appearance thereof and so forth. It might be a good dodge to claim that answering such questionnaires were necessary for judicial neutrality and such but that is quite different. For instance, justices can dissent in one case and try a matter on the same general subject and not be deemed biased. Justices wrote on matters they decided upon as law professors and so forth such as this nominee to the bench (In Reckless Hands is a good book). Will her family connections be more examined by any confirmation hearing than her views?

I reaffirm my belief that Kagan and other judicial nominees can and should be subject to more Q&A on their judicial ideology and legal views. The dodge offered doesn't work in judicial elections and should not in the indirect political process used in the federal nomination field. Kagan was right the first time.

Engagement

Andrew Sullivan cited this, removing the context of the original (good thing; it has some baggage):

[I]t is generally a good thing for the views of large numbers of citizens to be part of the larger public conversation. This allows others to gauge those views and to make judgments about them, and it helps dissipate the anger that tends to build among people who would otherwise feel excluded. My libertarian friend interpreted this as a straightforward utilitarian claim -- i.e., so the anger will dissipate and these people won't become violent extremists, ergo we will save lives. That's not quite how I would put it. This isn't really a hypothesis we can rigorously test. Rather, it is a gut instinct.

Yes. The original argued:

I think it’s safe to say that many people really do believe we should ignore the sentiments of large numbers of citizens. Some are libertarians, with an instinctive fear of populist excess, and others are liberals who embrace populist language when it is directed at those characterized as rich and powerful but not when it is directed at those characterized as poor and vulnerable.

Contra Howard Dean arguing that the Islamic Center should be an opportunity for a reasonable dialogue. But, I don't really buy this. Who are these liberals who simply want to "ignore" the sentiments of large numbers? All groups in some fashion think there are various cases where large numbers does not translate into the right to force action. See, e.g., Cheney on the Iraqi Occupation or conservatives on gun rights. Same with current events -- saying that same sex couples or Muslims deserve equal rights does not "ignore" people.

It says that majority rule does not always win out in our society. Sometimes, liberals argue that the "large number" deep down has certain concerns that are being addressed, they aren't really being ignored. Either others are for some reason taking advantage of the concerns for their own misguided ends (e.g., Dick Armey and some Tea Party groups) or the specific outlet (e.g., a conservative God and guns) is used that does not necessarily truly address the concerns. We should simply ignore the sentiments of these people -- if anything, we should go a bit deeper and reach their true concerns. Sometimes, they do seem "foreign" (see, e.g., concerns of Amy Sullivan that Democrats don't respect people of certain faiths), but the isolation here often is exaggerated.

Or, simply put, the "large number" is wrong about something (e.g., gays), but this is still not simply about "ignoring" them. For instance, to go back to the opening quote, I welcome the idea of debating with people, including those with whom I basically simply disagree. Respectful debate and trying to obtain some common ground (e.g., even if you don't like gays, you might accept civil unions or at least some rights for them, such as not harassing them in high school) is important. "Ignore," however, is not about not offering them what they want. Sometimes, that simply is not possible.

Clearly, sometimes it is hard to put too much effort in respecting the other side, especially when they are not playing fair or want to deny basic things that you feel results in real hardship or worse. One pet peeve of mine is those who go beyond not agreeing with your side, but go to the next level -- your side is really not playing fair. A judge is a "tyrant" because the person disagrees with the constitutional interpretation involved, when said person would not toss around that word if said judge struck down a law hurting their side. After all, the other side doesn't play fair. It's all political for them. At times, apparently, this justifies simply not taking a serious look at the other side, even if you don't agree, resulting in knee-jerk analysis that is not only wrong, but simply lame.*

Open debate and respect is important, but the problem is that this cannot be taken to simplistic extremes. Not going along with the herd, especially when they are not really informed, is not "ignoring" them. It is not "disrespecting" them as well if their inclinations are toward violating rights or doing wrong-minded things. Also, you really need true debate and fair rules, which is not what Republicans in Congress are doing these days -- the Democrats' balance of power are quite moderate, even conservative on certain issues, but Republicans for political reasons alone don't want to play. Who is "ignoring" now.

True engagement -- tough if necessary.

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* No one is free from blame here, but progressives do seem as a whole more likely than conservatives to be willing to look at an issue calmly, since progressives are less likely to be so tied to absolutes that reasoned analysis is deemed almost dangerous. Some libertarians are open too (some conservatives too, but less as a norm these days) but some have true believer disease in that area as well. Those more open to government realize the value of compromise more than those who want to drown it in bathtubs.

Clemens Indicted

For Obstruction Of Congress, False Statements, Perjury ... yeah, him. Meanwhile, three of four games vs. Astros blown late, one eventually won real late. Tonight's game is particularly depressing: great pitching (bad hitting), then suddenly three quick runs in the seventh.

Beginning of the End?

And Also: I saw the second half of Season 2 of Friday Nights Lights on DVD. It was okay, characters great, but skipped over some tedious plot material. S1 and the second half of S4 were much better.

I did not see the extended coverage of "a key milestone in the withdrawal of American forces more than seven years after the US-led invasion that ousted dictator Saddam Hussein," Keith hosted last night on the "last US combat brigade" leaving Iraq. Partially it is a matter of:

On September 1, the US mission in Iraq will be re-christened "Operation New Dawn", from "Operation Iraqi Freedom" -- the name given to American operations since the invasion. To fill the gap left by departing troops, the US State Department is to more than double the number of security contractors it employs in Iraq to around 7,000, the New York Times reported.

I don't see a segment among the many (watching a bit now -- it's interesting) is labeled as addressing this matter. We have been taught by various segments on Rachel Maddow to distrust security contractors, but now more will go there. Will some be related to Xe or whatever they call themselves now? Keith at one point made a telling comment of the "symbolic" nature of this final removal. As another blog noted:

Yet, lost beneath the headlines and fanfare is the following fact: around 50,000 troops will remain in Iraq. The government is not describing them as combat troops. Instead, it is calling these soldiers advisers, as the Washington Post reports:

By the end of this month, the United States will have six brigades in Iraq, by far its smallest footprint since the 2003 invasion. Those that remain are conventional combat brigades reconfigured slightly and rebranded "advise and assist brigades." The primary mission of those units and the roughly 4,500 U.S. special operations forces that will stay behind will be to train Iraqi troops.

The Iraq War will continue to exact financial and physical costs on the United States and the people of Iraq.

The idea that these troops, tens of thousands overall, will not be involved in any military type activities, including loss of lives, to me seems a bit dubious. There is also another year for this new mission, whatever they call it, to go on. The spokesman interviewed by Rachel said we shouldn't call this a "war." That has some importance (just as those held in Afghanistan), but let's see how much that matters. I like Keith remember another "ending" some years back of combat operations, even if this time the qualifier "major" isn't included.

A major milestone, but the journey continues.

Is That SOOOOO Hard? [2]

The community board, which includes many people who lived through the 9/11 attacks, overwhelmingly voted to approve this proposal and Senator Gillibrand supports the board's decision.

-- Statement to TPM

This (somewhat dubiously) was put in a weak category in the heroes/villains/cowards groupings, but it shows how to play it pretty safe without being an a-hole. Again, score one for Kirsten!

Is That SOOOOO Hard?

And Also: Bitterly Divided: The South's Inner Civil War by David Williams, whose own ancestors were involved, was interesting, but mighty repetitive and a bit exaggerated. It also makes the home front portrayed in Cold Mountain look benign at points.

Ted Olson, whose wife died on one of the planes:

I do believe that people of all religions have a right to build edifices or structures, places of religious worship or study where the community allows them to do it under zoning laws and that sort of thing. And that we don’t want to turn an act of hate against us by extremists into an act of intolerance for people of religious faith. And I don’t think it should be a political issue. It shouldn’t be a Republican or Democrat issue either. I believe Governor Christie from New Jersey said it as well, that this should not be in that political partisan marketplace.

Contra "let's compromise" Dean. Some sanity though.

K-Rod

This is a good analysis of the money issue but I'd add that being able to pitch one inning is not really a sign of being okay. More: Wow.