SCOTUS Steps Closer To Illegitimacy 51-49

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

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

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

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

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

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

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

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

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

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

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

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

SCOTUS (7/8 Legitimate) Update

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

Sports Update

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

Kavanaugh and the Duties of the Nomination Process

Update: On Thursday, we had the special hearing with Kavanaugh's accuser (with a woman prosecutor standing in for the Republicans though from my understanding at times they stepped in and she popped up later too) providing a very emotional and convincing account and then Kavanaugh came, providing a very emotional, unhinged (strong partisan attacks on Democrats for 'Borking') and unconvincing denials.   

As argued below, contra to the view of various supporters, this isn't a criminal trial with a burden of proof favoring the "defendant." The hearing also was a sham in that no other witnesses were called. (cf. the Thomas-Anita Hill hearing).  Nor, were the other allegations probed or witnesses or even witness statements officially submitted or handled.  Kavanaugh failed on any number of grounds. He did already.  His testimony made things worse for him, including as a neutral arbitrator. Except maybe for the votes that counted. Well, Trump liked it.  

On Friday, the next day, the vote to advance it out of committee was held. Obviously, it is absurd to do so immediately. The result was an unsurprising party-line vote with drama:  the vote was delayed for ten minutes as a Flake proposed "deal" was discussed.  Basically, it is an up in the air thing: he said that he'd vote to advance but did not want to vote on the floor for about a week so the FBI can investigate. Requiring other parties, the implication being a few Republicans (notably the likes of Collins) are on his side, including Trump, this thing is up in the air for now.  It also was suggested a very emotional encounter with two victims in the elevator influenced Flake.

The twisted soap opera continues. 

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As the details of a possible Senate hearing this Thursday to deal with an allegation of attempted rape when the putative replacement of the swing vote of the Supreme Court continue, more allegations are developing. The #MeToo movement has reached the Supreme Court (again) and we have a new hashtag on #IDidntReport.  Already, and hopefully after he is forced to resign his nomination (which is far from a lock even now), this has pay some dividends. Some sort of justice and inability to silence and tar accusers is in place and will be later on. Not enough.  Justice comes slowly.

(This is why even replacing Kavanaugh with some similar conservative matters. He is particularly bad and forcing him out shows a limit. It also shows why the handling this well goes beyond him. It is a matter of handling things that will come up again and doing so half-way well.)

The mistreatment of the Kavanaugh Nomination, including rushing things along (not in a vacuum -- looking at raw days, this isn't taking long in comparison, but level of documentation that had to be processed alone required more time), is a warning sign. It also provides, as each confirmation and moment of major note, a sort of learning experience. Constitutional developments don't just occur in the courts. The proper handling of nominations and confirmations in general as I tried to argue in this thread  often is a matter of the political process in action.

This doesn't mean they aren't "constitutional" as Justice Kennedy ironically repeatedly said, including in his last appeal from the bench in a separate opinion in the travel ban case. Lame as it might have been in that case, there is something to his argument. In some other case, the courts might have less call or ability to be involved and to provide strong restraint. The Constitution is not in abeyance then. As Kennedy argued:

Indeed, the very  fact  that  an  official  may  have  broad  discretion,  discretion  free  from  judicial  scrutiny,  makes  it  all  the  more  imperative  for  him  or  her  to  adhere  to  the  Constitution and to its meaning and its promise.

Again, this might sound like pablum, but realistically and as a matter of good practice, we cannot merely rely on judges. State and federal officials, down to postal employees and notaries, swear or affirm to uphold the U.S. Constitution.  Their judgment alone often is what matters and needs to be developed in various ways, including moral restraint.  These things should be kept in mind when we look on during the Kavanaugh approval process. On the standard to use there, Prof. Kate Shaw (who happens to be Chris Hayes' wife) had a good op-ed recently that can very well in some other case limit a Democratic President. And, it surely did somehow.

So what standard should the Senate use in evaluating the claims made by Dr. Blasey and in deciding how they bear on Judge Kavanaugh’s fitness for a seat on the Supreme Court? The Senate’s approach to its constitutional “advice and consent” obligation has always depended on context. A number of factors matter: the timing of the vacancy; the justice being replaced; the nominee’s likely impact on the ideological makeup of the court; even the popularity of the president (very popular presidents have always had more leeway when it comes to picking justices). Then, of course, there’s the nominee.

She appealed in part to history:

But in each case, a constellation of considerations, both political and constitutional, operated to defeat nominations of individuals who were certainly qualified, by conventional metrics, to sit on the Supreme Court.

She concluded:

This context-dependent approach arguably leads to the conclusion that the existence of credible allegations against Judge Kavanaugh should be disqualifying, especially if further corroborating evidence emerges. That’s true even if the evidence wouldn’t support a criminal conviction or even civil liability.

As it continues to emerge. A basic part of this is that this isn't a court of law or even a simple job interview. It is a seat, a key seat at that, to the U.S. Supreme Court. These things all have to be taken into consideration:

Putting Judge Kavanaugh on the Supreme Court in light of credible allegations against him could raise troublesome questions about the court’s legitimacy. And that’s a genuine problem, both for the court’s ability to function and more broadly for the rule of law.

Such things should be taken into consideration at the nominating stage too. And, it should be now at the advise and consent stage. But, you live by the constitutional political appointment process, you die by it. Thus, politics affects the hard-line approach of the Republicans, even if an alternative will offer similar (if somewhat different in some fashion -- each member of the conservative wing has certain differences than the others) judicial results. Demanding some limit to the usual court nomination bullshit dance is appropriate here, blatantly opening himself to perjury charges. "Defenses" of "just blatantly unethical" help only so much.

This is a political question. By raw power, a senator can flip a coin and the very mix of concerns can be tainted as here.

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The issue of a "proposed standard" was raised here  and someone felt it was wrong use phrase things in a legal fashion when it is a political decision. It is fine though to use "burden of proof" in various ways, including cases that are not legal proceedings. It also has a philosophical meaning after all and people use legal terms colloquially.  I also found a good quote in an early Supreme Court case regarding decision-making by justices, which also ultimately is a matter of justices deciding things based on judgment:

[Various opinions on the dispute at issue] incline us strongly to suspect that a great diversity of opinion prevails in that state upon the question we have been examining. However this may be, we hold ourselves answerable to God, our consciences, and our country to decide this question according to the dictates of our best judgment, be the consequences of the decision what they may.

That is, the justices swore an oath and have a duty to determine the law as they deem fit. The power is ultimately theirs. But, it is reasonable to say that "best judgment" is something that can be opined upon, after all "We the People" ultimately are in charge. That is what the author of that post did. He put forth reasonable grounds for others to help determine if senators were using best judgment. And, yes, judges have a responsibility to apply law, but justices ultimately are the final arbitrators.

If they decide based on flimsy grounds, it is not like the law is not binding. There are ways for others to respond, especially if the judges don't act in a convincing fashion. In both cases, they are "answerable to ... our country." Anyways, more continues to come out including in comparison to the last nominee, who even went to the same high school without being such a sexist asshole.

[Last part added on 9/25 and might add more.  Bullies won in 2016. Will more win this week? First Monday in October is the 1st.]

Unsane aka Lighter Fare For The Times

In between local PBS stations on my FIOS dial (channels 13 and 21) there are a few channels, including Spanish ones and Hampton TV, a low rent looking local station. Late Saturday nights (2AM), an appropriate time (Svengoolie is now on the too early 8PM slot) is Macabre Theater, with a sexy Elvira sort of host. The best approach for both, especially given this one has even more commercials, is to DVR, so you an fast forward. Latest was Unsane (no not that one). It's an old Italian "giallo" flick that is a mix of slasher type killing and boring exposition [somewhat obviously dubbed though the channel seems always to use cheap copies of films in general] mixed with the host's campy bits. Fun late nite fare.

Film and Mushroom News

An excerpt of the upcoming Stormy Daniels tell-all (bound to be disappointing given the lead-up) referenced a video game mushroom character. Enough said. I actually would be interested in that book if she provides a fairly honest and detailed account of her work in the sex industry. Looking for a book doing that. Meanwhile, caught Til Sex Do Us Part late night and saw two characters (including the lead; these movies suggest a sort of roving ensemble company) from Erotic Obsession, which has a great ending. Some not bad set pieces though the wife doesn't get to have much fun. Husband character again comes off like a jerk.

Football: Some weird stuff, including a Bills blowout over the Vikings. Giants hung on vs. Houston. Pats lost to Detroit by two touchdowns. Key baseball news left is to see if the Rockies can find a way to gain 1.5 games. Time running out, but they have two paths.

Sports Update

The Mets (not quite officially eliminated!) lost the series vs. the Red Sox, but overall gave a good effort though of course the one win was not for DeGrom (who gave up three but his main Cy Young competition had issues of late too). The Yanks didn't gain ground but Tampa stopped the As from either. The Jets in effect gave away the game to Miami without special team/offensive heroics to save the day (20-12). The NYG offense (20-13) was lackluster on Sunday Night Football with ten late garbage time points (the last three after a lackadaisical TD drive; they returned the onside kick but not the next one). Browns played Saints tough but found way to lose late. Another tie (29 all) after one team scored 22 in the 4Q.

ETA: Cards won, so Mets eliminated. Mets then lost, thus was their chance at .500.

Jets: After losing to the Dolphins in a sloppy game, they finished their three games in eleven days run 1-2 by giving the Browns their first win in a long time. Not shocking -- Browns put up a good fight against better opponents thus far and the insertion of their own young phenom late in the First Half injected life to come back (for the second time) from a 14 point defecit. This time, they didn't only get a tie. Still, Jets should be at least 2-1 now. Disappointing.

SCOTUS News

A new SCOTUS term is rapidly approaching though things continue to happen, including a "because I say so" Saturday order by CJ Roberts and Kavanaugh's accuser outing herself, particularly as the media was about to do so anyway. On that front, it is a mess, but for perhaps somewhat different reasons, Sen. McConnell warned Trump to nominate someone else. I rather this not be the reason to oppose him but along with his prevaricating about Kozinski, there needs to be better responses in this #MeToo era. Overall, people have bad things in their past, though it's better if they are honest about their record. OTOH, this is a SCOTUS nomination, not a criminal trial. Committee vote scheduled later this week.

Update: The full Court has denied a stay (without saying why) thus Roberts' (ditto) stay was vacated. As Election Law blog guy basically expected. Roberts is concerned about the Court's image and people were suspicious of his motives regarding the original stay. More reason to explain oneself. There are so view single orders. Can't they flesh out a bit why they acted?

Black Klansman

I have not seen the movie but this was a brisk read with an afterword that touches upon recent events (the original came out in 2014). Since David Duke at least is still around, him calling the KKK individuals involved morons should have gone over well for some. There is a certain low heat quality though he did provide important intel, apparently stopped one or more cross burning and a couple KKK members at NORAD was found out. As a police officer he isn't the best to cover it, but interesting question of the limits here on First Amendment grounds. Think his commander was right to worry about public reaction to some extent.

NY State Primary Day

And Also: It was announced that David Wright will be activated for the final homestand and will play in at least one game. He also said that he does not think he is physically able to fully comeback, but will not officially retire (he has more time left on his contract). I think this was a clear for a long time, but it was an emotional moment to admit it.

 

There are multiple election days in my district this year given a special election to fill a local seat and separate federal/state primary dates after a federal lawsuit during the Obama years to give military personnel more time to participate.  I am not really sure why any lawsuit would not cover at least state-wide elections, if federal elections are covered. Anyway, to give state officials time to run around the legislative schedule or something, we had a federal election in June and today was the state govenrment primary. The special state assembly race was in April.

There has already been reports of people not listed as on the rolls when they went to vote, even though they might be listed so when they checked online.  Chris Hayes has noted the convoluted nature of NY election rules (the two primaries don't help the reputation) though honestly I myself have never really been stressed out about it.  I don't assume this means things are fine, including more restrictive absentee rules, no early voting etc.  We also only changed from 19th Century lever machines a few years back and do not have receipts to check our votes.

A final bit of weirdness is that today is Thursday. Well, Tuesday conflicts both with the Jewish New Year and 9/11, so for this year only, a special rule was put in place.  It might have been better just to have it next Tuesday, since Tuesday is the normal day to vote, or perhaps have extended voting so that one day doesn't matter so much.  Also, for some reason, they re-arranged things at my polling place, which confused me when I got there.  A couple people, I think they said they were from some media group, asked me outside if I supported Jeff Klein.  Have an idea it is part of the Jeff Klein juggernaut, seen in part by the number of signs around.

I am tired of seeing so many Cuomo ads playing during baseball and then football games, each one phrased as if he was running against Trump. The latest batch talk about "experienced" officials, a dig at the more amateur nature of the challengers (including against former IDC member Jeff Klein and for District Attorney).  The challengers (including Zephyr Teachout, who I think has decent chance of winning) I support also have not had television advertising.  I am not sure that was a good idea.  I fear, like for a local city council race, name recognition can win the day in a close race. At least, wish there were more Alessandra Biaggi signs around. All these Klein signs, a few big ones, are a bit creepy. 

Teachout had a protest campaign against Cuomo that resulted in a respectable, at least for such a non-entity, performance (around 30%) and failed in her bid for a congressional race by nine points.  I think her race for attorney general, especially given her efforts as a reformer (campaign finance particularly), has a good shot given the times. It probably will be a close race and along with Biaggi (after the upset in the local House race, Senator Gillibrand has also gone on her bandwagon) she did get a NYT endorsement.  It is basically a three person race (my feeling is Maloney is a respectable third; am not aware of this Eve person).

The times are depressing though there is some hope for change in November with Alexandria Ocasio-Cortez receiving the most excitement locally.  I am ready to support strong progressive voices against dubious establishment figures or even against people (Tish James for DA seems fine really) somewhat less ideal in that fashion.  Andrew Cuomo on that front is again someone I will vote against in the primary though honestly he is someone who has done some good things.  But, these days, you need to aim higher. I honestly don't see Cynthia Nixon winning, but she has already pushed Cuomo and IDC Democrats too in fact to move left.

I will update this tonight. Again, I voted for governor and lieutenant governor (separate slots), state district attorney and state senate. There were no judges (silly affair, people no one heard of) or local state party officers or whatever on the ballot.  I personally had no issues voting.  Got my sticker.

ETA:  Cuomo's [who won; as we knew he would] choice for Attorney General won a plurality but Teachout was a strong second. A third candidate, however, split the anti-James vote and sealed the deal. The state needs instant run-off voting. But, that's just one of many potential voting reforms it can use.

There was a bright spot, other than the fact that Cuomo did various things to protect his left flank (Cynthia Nixon only received about a 1/3 of the vote, but she clearly concerned him), because Jeff Klein lost.  So, locally, I will have three women (including a more establishment friend assemblywoman) representing my interests. Toss in Sen. Kirsten Gillibrand and perhaps full control of the state legislature, that is not too bad.

(A footnote.  Joseph Crowley actually won the Working Family Party line for the House seat but promised not to run though he refused to consent to work with them to get his name off the ballot totally.  Cynthia Nixon also won there and in theory could get a sliver of the vote.  I question if it would be enough to seriously threaten a chance of the Republican winning.  But, given the bad blood there, it's not a lock she steps aside.)

[9/17 article on the last issue.]

NFL Season Begins

While the Mets continue to play pretty good ball (sadly it isn't too satisfying to me), football season began. The Browns didn't lose! (They tied but they did come back vs. the Steelers though they could not finish.) Giants (if vs. a good defensive team) didn't have enough offense. After their new QB had a turnover on the very first play (on Monday Night vs. Detroit), the Jets somehow managed to win 48-17 (it was 17 all early in the Third Quarter). None of the new coaches won. Aaron Rodgers had another "miracle" game after a knee injury.

Supreme Myths: Why the Supreme Court Is not a Court and Its Justices are Not Judges

I engage with the author of this book on Twitter and at Dorf on Law and his concerns over the power and lack of openness of the Supreme Court is well taken. But, his reasoning is flawed, particularly since (except for a somewhat exaggerated matter of discretion) other courts have the same criteria he cites (e.g., using policy reasons, not merely text and precedent). And, it's just focused on constitutional matters anyway, and not even a range of criminal justice issues (since courts have more cause to claim special knowledge). Finally, he doesn't even really provide the other side. For instance, Footnote 4 is not even referenced. Ultimately, it is a "court," but we need to understand what that means in practice.

Also: Brown v. Bd. is cited as an exception but it wasn't really at the time. And, I think a good case can be made (especially given practice) abortion rights, e.g., are clearly protected by text too. If one is required for equal protection, so is the other.

Judge Kavanaugh

McCain funeral over, back to same old/same old. After how Garland was treated, putting aside the problems of Trump, I decided that there were still eight justices. I noted in the past that this nomination might not be as illegitimate but rushing thru without proper documentation (even if some belittle the concern) and the statement under oath that Trump conspired in a crime pushed me over the edge. We will soon have seven legitimate justices and this nomination (even beyond his positions) is really pissing me off. If you don't like court packing, what do YOU suggest? Every Democrat on the Senate Judiciary Committee signed a letter regarding delaying the hearings. They should stage a walkout later this week.

ETA: They didn't though they put up somewhat of a fight and had some good moments. I still think a simple walkout moment to underline the illegitimacy would have worked. You now have multiple senators accusing him of perjury. Basic disqualification even if you take it down to "lying." But, we are supposed to just accept it as legitimate?

Zora Neale Hurston & Court Watch

First off, after seeing a reference to the "newly released manuscript of Zora Neale Hurston’s Barracoon: The Story Of The Last Black Cargo with a fantastic supplemental material from Alice Walker and Deborah G. Plant," reserved and now read it. Some time back, I read her most famous novel and later on read her take on the Moses biblical story. Both good though thought the Moses book could have been shorter. 

This first person account with various additional material (still a small volume) was fairly good though you are left somewhat wanting -- his capture, stay is captivity ("barracoon") and five years of slavery was all handled in a sliver of a volume that is less than one hundred pages without appendixes. Much of the account covers his life before and after, admittedly amounting to most of it.  But, those looking for an in depth "slave narrative" might be disappointed. The use of first person also means you have to deal with his dialect, which is a bit unwieldy too.

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The whole thing being illegitimate aside, the opening of the Kavanaugh hearings to replace Justice Kennedy (expletives deleted) is scheduled to start next week. Time flies while an asshole is in power. Some things to keep in mind. It is the popular to sneer at hearings as merely being kabuki, but they actually do provide a means for the general public to get a look at the nominees and a mechanism to work around for those (press, advocacy groups, etc.)  in the know to focus upon.  And, the popular theater aspects are part of our system too, like it or not.

Meanwhile, a couple things are happening in the eight justice Court.  Claims that evenly applying non-discrimination laws is "vindictive" aside, the Supremes didn't intervene (three conservatives dissenting without opinion) in a foster care case involving religious groups who don't want to take part if they have to put children with gays. This is the sort of civil rights clash that a fifth vote might seriously effect, even if (as I think) it is hard to conclude Roberts thinks you can put same sex marriage back in the bottle after over three years.  More here.

Meanwhile, with Breyer perhaps serving as the liberal compromise vote this time around, the Supreme Court for now held up the release of food stamp data with the three women justices dissenting without opinion this time.  This followed-up a previous order earlier in the month.  The matter is not as controversial, but Breyer served as a sort of "courtesy fifth" to hold up things the last time around in the "GG" trans bathroom case.  That time, the clock in effect was run out, the Trump Administration changing the policy and the student involved graduating from high school.

As a sort of lead-up to the Kavanaugh hearings, a "deal" (though it is unclear what the Democrats received) was made to fast track some judicial nominees. Blame was put on Schumer personally though he is basically more the spokesperson of the caucus. At the very least, multiple people who pay attention to this thing wondered what exactly the Democrats got out of this. As to the first link, I don't know -- it is somewhat unclear to me what more Schumer could have done overall the last couple years. Plus, again, if you are mad at him, be mad at the Senate Democrats. It is true that a leader can move things somewhat differently -- these people aren't simply fungible -- but like "Harry Reid" being cited for ending the filibuster rule for nominees, responsibility should be spread generally speaking.

(I saw it noted that no one seemed to dissented from the deal, even the more liberal senators, but who is to know what happened behind the scenes?  If there was a general sentiment that this was the correct way to go, the dissenters could have went along for sake of comity. This suggests why it pissed me off when a few Democrats in effect blocked something in the Senate even when a simple majority of the Senate supported it. You don't block something by filibuster in that situation.) 

The need to explain oneself to people already inclined to be strict, even though the Democrats simply have a bad hand, especially when the "big deal" seems doomed at this point, seems to me the biggest issue here.  The "red state senators had to campaign" argument doesn't wash for me. As noted at the first link, they don't all need to be there to delay things, and even if Republicans as a bloc (50, McCain having died) "ram them down our throat," that alone -- in an election year -- can be used.  As to the presence of some decent judges in the pool, fine, but would that not occur basically in the end if this is slow walked?

I think, especially right before the Kavanaugh hearings, partially because no "deal" yet gives Democrats a tiny bit of leverage (with even conservative Democrats talking about delaying), holding firm made sense. If they lose here and later for illegitimate justice #2 (aka "Judge" Kavanaugh), it looks bad.  Finally, some figure Democratic voters don't really care. But, some do care (steal a seat once ...), and when a justice ("justice") is about to be confirmed, normal situations do not quite apply.  There is a strong anti-Trump spirit in the upcoming elections and the red state senators do not even have to go all in from my reading of the situation.  I personally think hardball tactics warranted.

Anyway, even if there is a certain logic to the deal, I'm wary about how they handled it.

Alicia Witt at City Winery

After seeing her earlier this year, we brought a third to see Alicia Witt at City Winery in honor of the release of her new album (15000 Days, in honor of the days of her life). The food and wine prices the usual excessive amount but a beer was fairly average ($7) and good Arugula salad. Pen to sign bill exploded on my hand, but nice bathroom. Base price was around $20 (another venue was even cheaper; good deal). Good concert, lot of songs but could have done without the drummer. She's good and comes off as nice/goofball. For some reason the M42 didn't come on way back, but hanging out with drunks was fun. NYC experiences.

Truth & Mona Lisa

I added The Death of Truth: Notes on Falsehood in the Age of Trump to the side panel. Saw a couple reviews that criticize it as saying nothing "new" or being too brief, but many are not as familiar with all the material and it's helpful to find it in one compact volume. The movie (a somewhat old one: Krysten Ritter is but an extra!) Mona Lisa Smile is more concept (teacher brings new ideas to early 1950s women's college) vs. complete film, but it has its moments, looks nice and has a good cast (even the guys have some familiar faces).

SCOTUS Update

Last time had more news from the Court itself with today's order reflecting things are more low key this time. Paul Manafort's convictions and Michael "Trump personal lawyer" under oath implicating Trump in a crime does strengthen the basic argument against Kavanaugh: "No president suspected of criminal conduct should be allowed to seat a Supreme Court justice." The other stuff can be added, such as how the Republicans are rushing things or abortion or executive power or, but the underlining taint is basic. If court packing is so horrible, as some say, how do you deal with 2/9 of the Court being illegitimate? Well, some deny that, so it's talking past each other time. For now, win in November.

Guns and Song

At first, was not aware when I saw this on Showtime what it actually is: it's a fun Mamma Mia! type musical using 1980s songs in a story about a woman finding out her sister is marrying the "guy that got away." On the book front, Stand Your Ground: A History of America’s Love Affair With Lethal Self-Defense is only about two hundred pages, so is not a complete story (e.g., the history of armed blacks starts basically in the post-WWII era), but it is overall worthwhile including the argument SYG is selectively applied in practice.

NY Election Update

Now, we have Ryan/McConnell and Trump. That picture is from this discussion of the demonization of Nancy Pelosi.  My basic take is that I generally agree with the analysis of how good of a job she is doing. Likewise, there is no compelling need to replace her, especially without a very good option (the wannabe challenge in the past is not that).  But, I'm for an evenhanded promotion of a younger generation as a whole.

The future leader of the party (the talk is a tad overheated) won my district, Joe Crowley listed as a possible replacement (don't quite see it) of Pelosi by some.  The upset has definitely made Cuomo and Jeff Klein (state senate) extra careful to promote themselves (keep on seeing Cuomo ads during Mets games and Jeff Klein yard signs -- we don't have many yard signs in general around here generally)  vs. to be honest long shot competition. In some other state, either of those guys will do (Cuomo more so), but we are New York. In the Trump years.  So, no f-ing way.

(Both have been office for a sizable amount of time -- Cuomo for eight years, Klein for fourteen. Klein especially seems to have been there too long at this point, his IDC power anctics telling in that respect. Cuomo still probably is aiming for 2020, though he would make a horrible choice in my book there, a safe pol type that people will find reasons to dislike.)  

Jeff Klein came off smarmy during a debate with Alessandra Biaggi (whose grandfather years back was convicted of corruption), good to say her name, since there are so few yard signs around of hers. I think that matters, if a bit less than the local city council race where the final result was a few hundred votes and I do really think the establishment candidate dominating the signs in business windows (I recall like one of the second place winner in the midst of a stream of his) very well likely mattered a lot.  Anyway, I don't think Biaggi came off THAT well, came off as a bit rough.

I personally am seriously ready to support the most left leaning, new, anti-business as usual/establishment type candidate all things being equal, so it's Biaggi and Cynthia Nixon for me. Andrew Cuomo actually did do some good things, but has that unsavory insider vibe that helps the business as usual deal that helps stop NY from going the route of #Resistance ala California.  The Independent Democratic Caucus thing hurts Klein too, especially since -- this wasn't made clear in the debate -- there was at least a small window where they did directly had power to Republicans. Klein in the debate early on tossed out three Dems who were later arrested to explain starting the IDC, but what about the Republican leader he supported in that respect? Or, the rest of the Democrats that was worthy of support?  My public school teacher source also is no fan of his record on teachers.

Anyway, I rather we move on from both of them, but admit it is a longshot (more so Cuomo; Biaggi might have a bit more of a shot if the voters are ready to kick the establishment guy with issues out).  I'm not sure where to go in the Attorney General race, but might just go with Zephyr Teachout, who has the support of the Justice Democrats (the left leaning upstart coalition this year, basically) and whose ideas I like.  Her past efforts to win office, even local office, didn't go over that well.  And, at least one of her competitors probably would be a great option too.  So, that's good.

[Update: NYT endorsed Teachout and on Twitter Emily Bazelon compared her to the former public defender "outsider" Philly DA.  So, sounds like a good choice!]

There was a brief mention of the so-called "road diet" (shortening the street and adding a bike lane) plan for Morris Park Avenue, which is near me. I admit to not knowing about this until I saw a tweet about it that was a potshot at Biaggi for not properly finding out what the neighborhood wanted.  Me personally, I never thought of Morris Park as that crowded traffic-wise. I guess the construction might be a pain, but support bike lanes. Bike rentals in some areas are a great idea but the Bronx specifically is only somewhat bike friendly.  So, you know, I'm with Biaggi there too as being at least warily supportive of the idea.

[Upon thinking of it, I would need to know how it will be done. If it results in one side not being open for parking, it would cause issues. But, one lane on one side, as long as cars could still pass, would probably work.]

Meanwhile, I'm glad Nicki Minaj thinks I'm "genuine." She was great.

Some More Films

I don't watch most of the "in" shows and movies, but the free platform Kanopy and a free month of Amazon Prime has helped me to see a few things. Past Life seems to be ready for a bigger reveal than it provides, but looking past stereotypical plot devices, it was a good film overall based partially on real events (e.g., there is such a diary). A Luv Tale looks like the first episode or half of a never completed t.v. project [ends with a cliffhanger], but it was a good find (on Amazon Prime) with black lesbian/career/etc. themes. Yes, that's the woman from The Closer. Pink Grapefruit is a nice short film about a fix-up. Interracial aspect taken in stride. Swing Away was cute. Nice to see Shannon Elizabeth get some decent work.

Sensitivity Training

A good find among the free Kanopy films, this involves a woman scientist with personality issues who gets a perky (lesbian) personal trainer to deal with things. [Both things add flavor to the film.] The lead plays someone uncomfortable dealing with humanity very well and it overall is a well done indie. It's amusing and satisfying overall. Glad to find it since also dealt with an annoying short story collection with too many annoying characters/situations.

Meanwhile: Pre-season football has begun as the Mets are doing okay (two series vs. Reds/Marlins won!) with the NYG losing to the Browns and the Jets looking good. Figure at this point around six wins for either team would not surprise much.

SCOTUS Watch

The eight person Supreme Court was a bit busy of late. First, a couple of whom I at times engage with on Twitter, there was new "hard pass" press list. Then, on 8/9, there were three orders. One announced a new special master for a water dispute, another stayed a long fought case (for the time being) involving a FOIA request for food stamp fund information and did not hold up Billy Ray Irick's execution. The rape/murder of a child occurred over thirty years ago, so Breyer could have used it to address one of his concerns (people on death row for decades), but Sotomayor handled it -- lethal injection issues being her thing.

The Naked Kiss

That would be a kiss that tells you the guy is trouble as a former prostitute trying to escape her past finds out in this good 1960s "B" movie. Meanwhile, about half-way thru the pretty good Like a Mother: A Feminist Journey Through the Science and Culture of Pregnancy book that is basically a regular mom's guide to pregnancy (mixture amazing and crazy).

The Secrets

I have made multiple false starts with books over the last week or so, but am glad to have more luck with video. Recent reports that a few women are becoming Orthodox rabbis is relevant to this Hebrew film about a young woman who goes to a special seminary to put off marriage and helps a French woman find peace for her past crimes before she dies. Has religious, feminist and lesbian themes. Overall, well done with good DVD extras though you can watch the film itself free at Kanopy; good for me since my DVD copy had a glitch.

ETA: The Finnish movie (focus on soccer aside, pretty universal) Open Up To Me involves a transsexual who is reckless while trying to find some happiness, and unlike some movies, doesn't get away with any of it. The one good result was regarding something she was wrongly accused of. A somewhat depressing affair for most involved but well acted.

SCOTUS Watch

There is a scheduled summer order list on Monday (not likely to be notable), but a few other developments. Kennedy is officially retired from active service so we again have a eight person bench. Thus, the order today to assign his circuit to Roberts. His last apparent action involved a 7/30 order was a decision not to intervene in an open-ended climate change case but warning it looks to be problematic. Roberts also announced an appointment to fill an administrative position. The Kavanaugh nomination process continues as expected.

ETA: Scheduled summer order handed down. A rare rehearing granted. Not sure the point of motion of petitioner to dispense printing of joint appendix and why that pops up in orders.

Mets Update

The Mets had a decent July (over .500) after a horrible May-June nosedive. So they are at least partially sellers -- Famalia for international slot money and prospects (to As with mixed reactions; talk teams weren't too interested) and iron man Cabrera for a promising prospect (Phils). Cespedes came back for a day and then left to get heel surgeries with talk of significant time missed in '19 while they prevaricated about the details. To be continued? Me? I think you trade Wheeler if a top prospect is provided. Meanwhile, NY Daily News fired a bunch of people, decimating the sports section. Kristie Ackert doing Yankee games now.

ETA: Forgot to mention a signing of a decent OF off trash heap -- Austin Jackson -- DenDekker simply not hitting and multiple other outfielders hurt or hurting. No trade deadline action -- I'm quite annoyed they didn't trade Wheeler at the height of his value. They had a blowout & Reyes pitched last night [7/31] -- final score was 25-4.

More Review Quickies

Sometime around the last decade, NYPL had reserves and easy computer access of accounts etc., allowing more easy access. Used to call libraries to see if things are on the shelf! Anyway, Malcolm Nance's new book has a lot of good info on Russia's war on democracy and Trump's place in it, but only skimmed it -- the writing style was a bit too heavyhanded. Borgen ("The Castle"), a Danish t.v. series on the then fictional first woman PM is very good so far. Lost interest in the old movie The Dark Mirror; Summertime was good.

Chasing Lolita How Popular Culture Corrupted Nabokov's Little Girl All Over Again

This was originally released tied to the fiftieth anniversary of the U.S. publication of the original and is an interesting discussion of the book and its place in our culture. I found it because the author of an account of a real life kidnapping of a teenage girl referenced in Lolita was recently on C-SPAN. Read the novel years back and recall it was good, one of a few classics that I enjoyed. I saw a bit of the first movie and think I saw the second; will re-watch it. Meanwhile, Runaway Romance was overall a nice trifle. Ending a tad abrupt.

And Also: One reference in this book is Pretty Baby, the Brooke Shields movie that takes place in a brothel. I watched most of it and it is very good. Remarkable performance from a young Shields, including let's say much more nudity than in her teen island fantasy film. I later saw some of Baby Doll (good iconic shot of her in a baby crib) and it was good though think you got the general feel after an hour. Or, maybe I lose patience these days.

Believe Me: The Evangelical Road to Donald Trump

Why did evangelicals support Trump? John Fea, dissenting evangelical history professor argues: “the politics of fear, the pursuit of worldly power, and a nostalgic longing for a national past that may have never existed in the first place.” The alternative is hope, humility and history. A key doctrinal point: he argues Christians are to fear only God.

Spoonful of Sex

Adam & Eve products are so mainstream that I have seen advertising for them on television, but here I reference their erotic movie line found on demand and late nite cable (standard soft porn look but extended sex scenes with realistic sound instead of cheap porn music and overall decent production values). 

I appreciate the attempt to provide some serious effort while obviously providing the basic stuff (as usual, no penises or direct close evidence of penetration; know of at least one film here that had an alternate cut that did show that while one porn actress spoke of it simply not happening).

When a cafe owner finds a love poem left in a book, she believes it was left by a secret admirer which leads to a mistaken identity whirlwind affair and as the poem makes its way across town, it sparks amorous repercussions.  

[Amazon Prime Video summary]

This one has a café (with the usual sensual baking mixed in) and a college setting. It works pretty well with the most notable thing being a nice ending involving a poem being read with a montage of the characters being played. I think just a plain "normal" plot with a bit fewer glossy filters (people look like magazine photos in the sex scenes) would be a nice idea. 

[This has received a few hits -- for some reason the few hits on this blog repeatedly are my "adult movie" entries -- so I edited this to remove a dead Showtime link.  I also added a video at the end.]

There was a good episode of an erotic anthology about a couple trying to conceive that was very good and sexy too. To each their own, but like my desire for at least a token story, just my tastes.

BTW, I don't watch This Is Us, but Chrissy Metz was charming on Colbert.

SCOTUS Watch

The first scheduled summer order is a list of rehearings denied. A discussion on why they have only Catholics and Jews (Garland would have followed the trend). A fair cross-section would have a non-believer and a couple non-evangelical Protestants (so phrased to deal with the Protestant/Catholic mix already there). And fictional SCOTUS: The Good Fight.

The Good Fight

A Danielle Steel (read one other, years back, with a WWII plot) for the times. It starts with young Meredith's father going to be a lawyer in D.C. during WWII, be a lawyer at Nuremberg but still being very conservative, her grandfather getting on the Supreme Court (replacing Murphy or Rutledge), her going to Vassar and meeting a Holocaust survivor (whose life we also follow) and growing into a lefty lawyer (helped by a large inheritance!), including getting involved in some 1960s events. I got interested in the characters and liked the historical plot. It is written in a straightforward style but has some very serious material. Starts to get a bit boring in its episodic way later but nice final plot device. No sex scenes!

ETA: This is a book that could have benefited from a brief message from the author regarding her research and so forth. Not sure of a reference to a "computer" in a small law office c. 1970. But, overall, the history seems accurate enough.

The Greatest American Hero

Early 1980s t.v. show that is this week's Decades Channel "binge" that has a great theme song and pretty good cast (and sorta a Meghan Markle look-a-like lawyer love interest). It's not quite The Most Wonderful Time of the Year good, but Christmas Connection with the same female lead is a charming Hallmark Channel movie as they replay Christmas movies.

The Furnace of Affliction: Prisons and Religion in Antebellum America

The author has a new book out about the Kiowa Indians and their struggle to retain their religious traditions. But, this one was the one at the library now. Interesting subject (focused on New York prisons), but was a trudge at some point in its short page count (under 200 pages). Felt repetitive and perhaps better for a shorter monograph.

Showtime At Night: Erotic Obessession

Abella Danger stars in Erotic Obsession, which has some charms, including a little bit of a twist ending that I liked. She has an interesting look. It is available on demand and has a notice before it starts that promotes the "natural sound" (how I would phrase it) aspect. Not talking high art, but appreciate effort not to look and sound cheap. Involves a kooky roommate. Good scenes, last is the best. The husband is a familiar face.

And Also: Today's date. The remake of the movie was decent. "Final Friday" actually tried to have plot. The series was okay. Maybe the planned Child's Play series will work.

It (No Evil Clowns Edition)

Borrowed a DVD of film with "It" girl Clara Bow with a documentary produced by Hugh Hefner (!) included. Fairly interesting doc and she's very good. It is actually pretty easy to watch the silent film (didn't seem forced or anything) though after about a half hour was a bit bored with the plot and skipped to the last reel. Amusing with her roommate quiet believable as a sick mother she filled in for and thus started the plot. Her love interest is a bit old for her.

The Darkening Age: The Christian Destruction of the Classical World

In his last book, Bart Ehrman touched upon the dark side of Christianity; this book by someone who is a daughter of a monk and nun gives a fuller account. I found this strong criticism. A positive review here. It did have a flavor of a polemicist (she is a classicist) but the matter does warrant balancing so there is a place for it. Think it could have been crisper too; seemed a bit repetitive and rambling. Book best read with a disconcerting eye.

New SCOTUS Pick: Federalist Society Gold Standard Again

Me in 2006: "Meanwhile, Brett Kavanaugh was confirmed as circuit judge. Sigh."

ETA: Don't have much to say about the pick other than it is really a red meat pick as compared to a more bland Federalist Society type (basically the back-up option, Hardiman). His pro-executive power writings (Clinton not being investigated edition) will be an easy target. His opposition to agency deference can be a time bomb waiting to go off. Basically, not a "stolen seat" in the Gorsuch way, but tainted, especially since Trump is under investigation. I guess to be on the safe side, no "Justice" for him either.

Is it Football Season Yet? Oh, wait I remember last year ...

Also: Look what the dog dragged in ... Jenry Mejia found a means to end his "life time ban" for cheating.  Mets didn't just dispose of him though not sure if their provisional contract (why?) will require any payment now.  Just let him go.

The Mets have either lost or split their last 14 series. Their last winning series came when they swept Arizona at home May 18-20, giving them a 23-19 record.

This striking stat is also telling when you consider approximately equal parts of the season occurred before and after that date, roughly speaking. The article about "these miserable Mets" (NY Daily News beat writers basically have the tone at this point) provides their current record: (35-51). So, back in late May -- which had them four games over .500 at 42 games -- has somehow led to sixteen under at eighty-six.

The five wins in June, a low point for that month for their full history as a franchise, suggested the period of futility. In the midst, for a while at least, they seemed bad, but not quite that bad.  Then, before you knew it, they had the worst record in all of the National League.  The Marlins was just whipped by the Nats recently, including blowing a 9-0 lead and giving up 18, so staying there isn't easy.  Meanwhile, the Reds have been playing dent and the Padres had some life (dropping closer now), so other than the "hey, we knew we were going to stink this year" Marlins, the Mets only have a couple teams in the American League ("hey, there is always the Orioles to feel superior to") to look down to these days. Not enough AL Central games!

The Mets #2 starter has been hurt for a while now but it takes more than that to only win five starts in a month. Their top of the league ace is 5-4! Ditto Cespedes, the human salary drain (no-trade clause? don't care! get rid of him!) being out.  That won't help, but the team has a level of futility that is downright impressive. Not hitting helps (they were almost no-hit today, admittedly the Rays do have decent pitching) as does dubious pen. Seth Lugo was put back in the pen since he's like the only reliable arm other than the closer (who was hurt some this season too), if someone who gets so little chance to pitch.  Toss in non-clutch hitting and now just sloppy, low energy games.

The false start was a 11-1 affair where everything generally seemed to go right, including a nice pen with Gsellman/Lugo thriving there. Lugo went into the starting rotation eventually but seemed to tire out some, and anyways, no one -- even Gsellman these days (especially in the second inning) -- seemed to be reliable.  Blevins, their quirky leftie, is having a horrible year.  Their new eighth inning guy got hurt and now is regularly doing lousy.  A few rookie types showed some life but not much any more. Today's fill-in starter (Chris Flexen) just isn't MLB material at this point. A DH tomorrow will bring Oswalt, who was okay for four innings last time. Tuesday is a question mark.

The last two weeks brought a chance to show some life since they had a stream of mediocrity -- Pirates, Marlins, Blue Jays and Rays.  Well, they did have three wins last week, but no winning series. The low point was Wheeler's start vs. the Blue Jays where the starter how to leave early and it was 6-1 late.  Well, they lost it 8-6.  They split the series because the other Jays starter had a bad game and the Mets both managed to take advantage one inning at least and the fill-in starter for them this time didn't blow it early.  The first win was a messy one vs. the Marlins, who won the first two.  The other win was an unearned run plus a two out grand slam by Bautista (after the Mets got out of a bases loaded 1-1 jam in the top of the 9th) versus the low scoring Rays. But, those were the only runs scored in the series plus it was still another game that DeGrom couldn't win (eight innings, one run).

It's really depressing but the SNY crew (especially Keith Hernandez, who has found Twitter, posting a lot of video of his cat and family, though he has been low energy in many games -- hard to blame him) does help. When Keith and Gary Cohen were both off for the Toronto series (including 7/4 in Canada!), it was rather dull.  It was nice to have a woman sideline reporter. There is Kristie Ackert on Twitter though she has been not too active the last week or so, perhaps she is on vacation or something.  There are few bright spots, even Michael Conforto struggling. Cabrera at times has some good moments. Brandon Nimmo, known for his smiles, is often glum. And, that tbh stupid "pepper grinding" thing they started to do? Well, don't see that any more. Rarely score.

To me, the Mets for the last twenty years at this point often has a conservative mentality, making a few big ticket moves but relying on the "if everything goes right" mentality.  They consistently seem kinda close though they had some bad years mixed in as well.  You get the idea that is still the mentality; "hey, we went to the World Series in '15." (Murphy a key piece and if the Nats didn't have an off year, very well might not have even got to the playoffs or maybe a 2016 one-off)  The same injury problems seem to be occurring.  The same simply not crisp baseball play. etc.

Who knows the solution? I have been harping on the likely dream-on idea of getting rid of Cespedes, who is getting 29M a year now to be injured a lot.  He had a great run in 2015, but so did other people. He didn't really have so great of a 2016 to warrant a four year expensive contract. Maybe, it is telling no other team wanted to spend big bucks on the guy. His strutting his stuff (the whole yellow canary thing etc.) is charming when he is thriving. Other times, he rankles. If somehow they can even get a fraction of that money and move him, it will help them move on from something that is simply dragging the team down. A lot more possible, when he was doing nothing for around two months, was a DFA of Reyes, who has no future here. So, he showed some life. Who cares? Disposing him when he was doing noting would show management had some standards. Give someone else a chance to play.  It's like them calling up a fourth OF and now he has three plate appearances in around two weeks and not one start.

Personally, hoping over and over again that David Wright plays again also is annoying. So he might. Might hurt himself again too. Reason to care when team is dead in September?  Him retiring could be a sign of the team moving on, like Sandy Alderson going on medical leave and probably not coming back.  Something else they need to do, other than apparently teaching basic fundamentals at times, is getting some more people in the minors.

The second year in the row fire sale might help some there though they might need to let go one or more of their bigger name pitchers to do that.  Maybe, do more than tinker tinker (Harvey got back a nice back-up catcher who if he stays healthy might even be more; Bautista is a nice trash heap deal; moves in the off season more "okay, yawn" material with safe moves like re-signing a corner outfielder who now is hurt and overpaying for a questionable reliever and ... Vargas for two years? Why?

A person being wary at the start of the season with the talent on the roster is one thing. The level of horrible the Mets had after mid-May? That is quite another.  2015 was one game after another without offense, but they stuck around because of pitching.  It helped that other teams in the division struggled more than the Phils and Braves (who both did have some growing pains eventually) did this season.  The Nats in fact are in third place though with some help, and one of the other teams faltering, I can see them pushing back into contention.  And, the Mets rarely are totally out of it it seems because DeGrom, Wheeler and Matz (and to some degree Lugo) keep them in games.  But, that's only three, and the pen and hitting stinks.

Syn and Vargas (who cares?) are likely to come back eventually as is Cespedes (I'm done with him, seriously), I guess, and as things go, the team might show some life eventually. But, struggling versus mediocrity means that they have to step up a lot even to go .500, which would mean a low 70s record. And, then, as well they should, they might have to do it without a few pieces that actually have some talent and value in winning games. Trading Famalia will make the back-end longer. Trading Cabrera will take one key at times clutch bat out of the line-up.  Still, they have to do something, since just playing the string yet again without at least getting something back, is just pathetic at this point.

And, that is the mid-season Mets report. Cheers!

ETA: In tease territory, the Mets with various spot starts and players hurt and Conforto still slumping (but that is standard: key players are always hurt, someone struggling), have split their games in the first ten with a four game stretch vs. the struggling Nats to close the first half officially.  Two of the last four wins were 10th inning jobs, the last one yet again a DeGrom no decision -- no runs in eight with the Mets scoring in the 10th off a Nimmo homer. Basically, this is holding serve with some life day to day.

SCOTUS Watch: End of Term Orders Again

Also: Some talk about likely SCOTUS picks including McConnell worried about complications with one or the other senator.  Shall see since the rose is supposed to be given tomorrow night.

Breyer aptly warned that the decision threatened other consumer protection provisions: as one example, he cited a California law requiring hospitals to inform new parents about child safety seats. And just two days later the Court told the federal appeals court in California that NIFLA might be grounds for striking down a local ordinance requiring cell phone providers to warn users that keeping a cell phone in a pocket might result in radiation exposure in excess of federal guidelines.

Breyer in a recent interview also recommended Adam Winkler's We the Corporations book. The interesting reference in today's weekly Jost on Justice blog post was one I missed the first time, part of the summary dispositions of the end of the term order.  See also, this article on "post-truth" speech regulation.

Various cases were sent back to re-examine per cases decided this term. This one involved a cell phone warning passed by California, one of many such things. Generally, disclosures and disclaimers, even those involving campaign speech, have been upheld.  But, the crisis pregnancy ruling suggests not so fast. This is part of the "weaponizing of the First Amendment" that lead to such a strong dissents (see also, Janus).  There also was another case in the Scalia interregnum involving credit cards that was sent back but it was a sort of faux minimalism since Roberts' majority still said there was an important free speech interest at issue.  When examining the next justice,* perhaps something to think about.

Another summary order of some interest was a loss for unions.  Another involved a lower court that went the other way regarding cell phone data:

Cell phones—once figments of science fiction—now live in most Americans’ pockets and purses. These devices are double-edged swords, increasing convenience at the expense of privacy. Each time they make or receive calls, they leave a trail of digital crumbs known as historical cell-site location information (CSLI)—business records kept by service providers identifying which cell towers routed which communications.

There are a lot of little things in these orders that have some interesting footnotes, such as cases not taken or technical things including things accepted under seal. Sometimes, there are things that make me go "hmm."  There also are orders like this that suggest the potential breadth of opinions.

===

* I don't call Trump by the same moniker as President Obama or Gorsuch by the same title as Justice Kagan.  For various reasons, including taint of the process, neither deserve the title, though less use my bit of protest in the latter case.  The upcoming nominee is part of a corrupt process, including someone under investigation choosing a person key to various disputes involving him personally, but (guardedly) not thinking it is so tainted that "justice" is not warranted.  But, I might change my mind.

Liberty's Secret

Saw this during my free Amazon Prime month. Love develops between a campaign staffer and the Republican candidate's new secret weapon: a singing minister's daughter. Overall, well done with good singing with a good amount of political satire mixed in.

ETA: Here is a positive with an asterisk review; I did find the kisses weirdly ill at ease. How would I know, but the "obviously written, directed, and produced by a straight man" line seems a bit unfair. I think the other characters were decent relatively speaking. Makes sense for the daughter to be ill at ease given her upbringing. Did wonder why the two sane women were in the campaign. The positive reaction suggests some lesbians liked it too.

Hey ... it's the guy from ER!

This very good (though maybe can be shorter) Ashley Judd film about dealing with horrible depression turns out to be directed by the same woman behind the charming (with a serious side) Mostly Martha. The DVD extras has good interviews with four cast members.

Do you hear what I hear?

"A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people."

Just a historical quote for the day, right? I wrote various entries about today over the years and I'll just cite the one about Danielle Allen's excellent book on the DOI. Happy 4th!

Meanwhile, protestor at Statue of Liberty today. It's the day for it. Also, RBG posted some remarks and they included a reference to Emma Lazarus.

Board Meetings Prayer Issue Still In Air

While we wait to see who is nominated to the already tainted Supreme Court, I see that there was a reference to the action on legislative prayer today at Religion Clause Blog. Or, non-action.

In finding the county’s former prayer unconstitutional, the appeals court’s majority focused on four elements: that the commissioners gave the prayers themselves; that 97 percent of the prayers between 2007-2013 were Christian; that the audience was urged to join in; and because of the government setting, members of the public who had business with the officials often felt pressured to take part in the prayer.

Read more here: https://www.charlotteobserver.com/news/local/article161348068.html#storylink=cpy

Among the end of the term orders, there are usually some statements by justices on various issues, be it why they would have taken the case or why such and such is at least important enough to note. For instance, Breyer used it as an opportunity to again flag his constitutional concerns with the death penalty. A few justices [in an opinion by Gorsuch] flagged something called Skidmore deference, part of a big debate over the discretion over agency action.  And, Alito/Thomas had another thing.

And, Thomas and Gorsuch flagged the prayer issue, which now appears to be something that splits the circuits.  There seems to be a decent chance that public recognition of religion in some fashion -- including something like a cross display -- will be back to the Supreme Court to clarify existing law on the matter. The Town of Greece v. Galloway opinion clarified somewhat the breadth allowed in legislative prayer,* being more open to it than a past ruling (Marsh v. Chambers) and a plurality opinion applying it seemed to offer.  Justice Kagan's dissent to me put forth the best approach there, a compromise position that allowed for legislative prayer but providing some safeguards.  The majority itself did this too though to some unclear degree as the dissent itself suggests.

The en banc lower court opinion blocking legislator led prayer dominated by one religion is discussed here with a link to the opinion. Justice Thomas argues history is on the local practice here, but the lower court opinion and the concurrence challenges just that. It is a common complaint (see, e.g., Eric Segall) that Thomas' "history" is wrong. Original understanding and historical practice is in general a mixed bag anyhow.  Anyway, if he thinks things should turn on that, maybe the fact finding tie should go to the lower court. Of course, a split complicates things.

Thomas also argues that if anything a chaplain would be more problematic (granting either is) than a legislator. But, the lower court opinion argues (convincingly to me) that government officials directly promoting Christianity nearly 100% of the time is worse than a means where third parties of various faiths are more likely to be present. In practice, the dissent in Town of Greece argued the practice there was still not evenhanded enough though part of the problem was that it argued that Kennedy's opinion was not a realistic accounting of the actual practice there.

Justice Stevens dissented in Marsh in particular because he thought one chaplain of a specific faith was a blatant establishment, but the majority noted that in practice (after complaints) the chaplain made a good effort not to be particularly sectarian (if still theistic).  There is still some limits via the controlling plurality opinion in Town of Greece so that use of prayers can be done up to a point but not too much:

Prayer that is solemn and respectful in tone, that invites lawmakers to reflect upon shared ideals and common ends before they embark on the fractious business of governing, serves that legitimate function. If the course and practice over time shows that the invocations denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion, many present may consider the prayer to fall short of the desire to elevate the purpose of the occasion and to unite lawmakers in their common effort.

The plurality noted: "The analysis would be different if town board members directed the public to participate in the prayers" and this appears to be just what is at stake here. Emphasis was made that ministers were the ones who did that.  Notably, Scalia and Thomas didn't join the portion of the opinion that said that. It seems like Thomas is trying to expand the reach of the opinion.  With two justices changing, and other religious issues open to change, the final word is probably yet to be spoken here.  For instance, the plurality references a "reasonable observer," which suggests respect for 1980s doctrine that a new Court might push back upon.  One more thing. Thomas cites three residents "who were offended by the Board’s prayers," but the opening summary suggests mere "offense" was not enough.

Meanwhile, Judge Amy Coney Barrett is a leading choice for the Kennedy Seat. There was past -- overblown -- criticisms about how her religion was subject to scrutiny during her lower court nomination. It is not a violation of the "no religious test" rule to examine how her understanding of how to apply law in some fashion overlaps with her religious understanding. We should get a full picture of the nominee though the issue should be warily handled, even if beliefs in "handmaidens" and "heads" (woman/man) advising you is likely to be open to some ridicule.

Some evangelical friendly anti-abortion type in her 40s that can even be deemed a "feminist" choice (being a woman) is a fairly prime option. The troll opportunity alone makes me wary about her and if we are stuck with a bad candidate, on some level it is better to have an easier target. OTOH, net, if the person is confirmed, what difference will it really make? There might even be a small value in adding another woman to the Court. It would also help to know her other views though presume they are typical Federalist Society type of stuff.

We shall see who gets the rose next week.

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* This is somewhat of a misnomer, especially given the stance of the minority opinion in the most recent Supreme Court ruling. The more intimate setting of a local public board meeting and town hall more directly involves the public than many a "legislative" prayer case that involves the start of the legislative day involving basically just the legislators themselves. See, e.g., the start of the U.S. Congress or the like. 

Nonetheless, the majority -- though recognizing some "fact specific" quality to these questions -- did not differentiate.

SCOTUS Watch

The big thing now is who will be nominated (next Monday has been flagged for whom will get the rose) to replace Kennedy (stepping off at the end of July). Though SCOTUSBlog doesn't even cite it on their calendar, SCOTUS did announce their three official summer order days. Nothing much usually really happens but just a footnote. Other spare orders possible.

And Also: Rick Hasen flagged, wondering if it was on account of illness, that O'Connor didn't provide an official statement on Kennedy's retirement. But, Souter didn't either. He gave brief statements on Stevens' retirement and Scalia's death.

Royal Wedding DVD

With so much depressing going on, Harry/Meghan getting married, especially that American bishop talking about love, was a nice break. BBC DVD. Meanwhile, the lead was good, but couldn't get into the story of the latest Tomb Raider.

Iowa Supreme Court Protects Abortion Rights

The federal courts cover a lot of ground but Roe (Casey) is always a major concern. Here's a brief summary, including four states ready to ban abortion when they can. Meanwhile, on state grounds, Iowa struck down a three day waiting period. Excellent opinion, especially discussing the financial burdens and equal protection argument. What will SCOTUS do? I don't know, but figure directly facing up to a broad ban might take time, but a TRAP protection decision fairly expected. Next few years: waiting for the other shoe to drop.

The Leech Woman (Fun Svengoolie Movie)