Tebow Time Returns

The last game went off script. It was not as close at the half but then Broncos decided to go back to form and stop scoring. Tied late 4th after a Broncos mistake. Defenses hold. OT. But, Tebow does it again. A TD good enough, even with the new rules. Upset #1.

NYG Win

Honest fans were looking past this game but also didn't think it was going to be that easy though again it was close (7-2) at the end of the half. A chance to be only down 10-5 unwisely rejected, the Falcons' downfall to 24-2 started in the 3Q. More wanted but season okay now.

Wizards Finale

The Wizards of Waverly Place has lacked much flavor of late, so it was a good time to end. The finale provided something for everyone and showed the good qualities of each. Not a big fan of tacking on Juliet (leave her be) but nice send-off overall. How will iCarly end?

Wild Card Weekend

The theme of today was that the underdogs had about a half of good football, then the other team took over. The Saints game (oh go away) had Detroit up 14-7. 14-10 at Half (after failing to stop a 4th and 1). Saints scored in about two minutes to take lead. Game Over.

DVD Watch

I caught Children of Men, an excellent leftist documentary, no I mean, look at a metaphorical world with no more children. After watching 1/2 of unpleasant characters without much happening, I turned The Birds off. The remake of Last House on the Left started slow, but it didn't take an hour for the exploitative thriller stuff to occur.

NY Baseball Update

The NYM, in serviceable moves, re-signed Scott Hairston and signed Ronny Cedeno as a backup infielder. Cedeno was an everyday SS the last couple years, more than can be said for Tejada. Posada will retire as a Yankee, leaving Jeter and Mariano from the '90s heyday.

What Month Is It Again?

My temp flag on my desktop says it is - in NYC not Miami - 60 degrees. Yes, on what is the first day beyond "Christmas holiday season" now that the Epiphany (1/6) passed. Meanwhile, Chris Hayes reminds us the Cordray appointment has a substantive purpose.

Executing Junior

Turns out that I noted the tidbit about Kevin Stanford not being executed when the execution of minors was back in front of the Supreme Court. Fray links might be broke, but not blog ones.

And Also

A "reasonable" Republican sort brings out his clueless with a bit of asshole here. I was going to let it be, but he laid it on thick, and his passive aggressive "I don't get it" / chuckle routine pops up various places. It was in the teens a couple days ago. In the low 50s today.

An Updated Definition of Rape

For over 80 years, for the purposes of crime collection data, rape was defined as forcible male penile penetration of a female

For purposes of federal data collection, this limited sexist definition has been expanded in one of those little but still important events.

Let's Get Free

The title book by a former prosecutor is a brief (a bit too much at times) "insider’s view of the lock-’em-up culture that makes every American worse off." Promoting jury nullification actually got someone arrested recently. Stupid move there. Good read.

Limits of Judicial "Activism"

In 1988, the Supreme Court drew the line at sixteen for capital murder, overturning itself in another 5-4 ruling in 2005.  Underlining the limits of its power, note that the two were never executed, the lead defendant in the 1988 case having his sentence commuted.

Wild Card Weekend

Bengals/Texans -- balanced flawed teams.  T.  Lions/Saints.  Mismatch.  L. would be a miracle.  Falcons/Giants -- Giants losing, at home, would be an upset.  Possible.  Steelers/Broncos.  Tebow magic really would need to return there.  Possible, if Ben et. al. are hurt.

Titles of Nobility

The Internet and cable (satellite) provide but more means to suggest things to read and watch.  One blog comment led me to an interesting (and pretty convincing) argument that legacy preferences can violate this provision.  See also, Jay Wexler's Odd Clauses.

Recess or No Recess?

[After the Pryor Recess Case, pre-Obama, I made these comments, which actually are fairly consistent with the below discussion.]  

The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.

Judge Pryor recused, his recess appointment was upheld here, the majority/dissenting opinions providing interesting reading, including one which would not have the court rule on the legitimacy of one of its members here. I opined on the question at the time, but find myself more guarded about the question as a whole presently.

In Jay Wexler's new book, Odd Clauses, the Recess Clause has its own chapter. He notes, e.g., that it's problematic to suggest that a vacancy would have to immediately occur during the recess since that would mean that if it happened a day earlier, it would not count. And, what does "occur" and "happen" mean? Did they FIRST occur or happen then or continue to occur and happen then?  Wexler and some others suggest the former, and that seems reasonable, but the majority opinion and practice has not been so limited.  The literal text could go both ways.

And, someone referenced a "real" recess. I don't see the word "real" there. I think the op-ed cited by this post on this issue reasonable, taking a practical path that phony pro forma sessions don't count, since they don't give the President the chance to actually get an appointment confirmed. A similar practical approach would deal with that day before the recess death problem and address a concern of the dissent in the ruling cited by examining if a President had a real chance to have the nominee confirmed. But, would the Senate refusing to vote on the matter, particularly via filibuster, count as a "no"? Maybe so. And, would we let the question be handled politically, the literal possibility of one or the other side going overboard dealt with that way?

As noted by Wexler, provisions of the Constitution that the courts, particularly the Supreme Court, has not not decidedly ruled upon are interpreted differently over the years. Different administrations had different opinions, e.g., on just how long a "real recess" should be, one minimum being three days. Also, unlike originally, though the Senate might be out of session, it never is as hard to call them back (or are they likely to be gone as long; contrarily, there are a lot more offices to deal with these days) than originally. And, true emergencies (like an ambassador in the midst of peace talks vs. a judge, who also has the problem of perhaps being a short term appointment*) can be handled differently.

The subject is suddenly topical:

The White House confirmed Wednesday morning that President Obama will announce a recess appointment for Richard Cordray to run the Consumer Financial Protection Bureau at a speech in Ohio later today. Cordray was a well-liked Ohio Attorney General until last year, after he was toppled by the GOP midterm wave in 2010.

Obama didn't use what might have been deemed a technical "recess" (between the last and this session of Congress) to do this, so has to go against those pro forma sessions referenced above. The Republicans are refusing to confirm anyone to the position unless the underlining law is changed, which is bad pool, and makes some "principled" attack on this move from them hard to take too seriously. Still, the vacancy was there before the recess and the Senate did act upon his nomination already. Such things have not blocked recess appointments in the past, and past practice has long been (there a mere decade deemed controlling) a major guide. Also, unlike some minor position, the Republicans are blocking the ability of a democratically passed law (gotten through the filibuster laden Senate) to work as it was intended.

The text and changed reality of how things work these days provides wiggle room, so the best path would be to take a prudential approach that balances various interests. My concern with Judge Pryor was that the Democrats in the Senate used its filibuster power to deal with an imbalance of power involving a recalcitrant President [Obama, who actually received a majority of the vote, was much less partisan on judicial nominees, Republicans more hardball on filibusters] and a "majority" that represented a minority of the country. And, a short term judge was a concern. But, honestly, it is probably something of a stretch to argue that the appointment was unconstitutional as compared to bad policy, if in some ways that concern constitutional concerns. At the very least, too much water has gone under the bridge by this point on the issue.

The dissent (who has been sane on other issues vs. her 11th Circuit -- yes, the one that struck down the PPACA provisions -- though the other dissenter who would avoiding ruling on the matter at all probably had the best argument) is interesting reading, and one can decide. On the whole though, I think in this case, a "recess appointment" would be a reasonable path to take to provide a check against Republican abuse. I might not say this if they didn't play so dirty. If it was just a matter of a President trying to do an end around regarding a pending nomination being treated reasonably, I might think the recess power here was being abused, if perhaps still a political question.

Here, the spirit of the clause as well as separation of powers, checks and balances and republican (small 'r') government would be respected. Obama has to some on the left or critics of filibusters not done enough of this sort of thing. That's debatable, especially since this whole thing is all one big chess game (snide comments about him playing multidimensional chess aside) and you have to pick your battles. This would be a good one.

[And Also: Somewhat in the same category is the National Labor Relations Board, which can't function without these appointments.  It is not merely filling long empty slots but slots necessary to run.  Politically, these are also easily defended picks, which helps too.  See, "Dilan Esper" comments in the "real recess" link.]


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* In fact, the second Chief Justice of the Supreme Court was a short term recess appointment while a few justices, including CJ Warren, later were confirmed after first being nominated in that fashion. But, after the 1950s, that practice was frown upon, Clinton using it to deal with a slot blocked for years, Bush for two judges, one who "stuck."

Super 8

One of the films I will catch up on. Parts of it, like the kids (especially Elle Fanning), amateur film-making and (sorta) c. 1980 setting, were great. The sci fi story was rather weak as were the adult actors.

How Judges Decide

Linda Greenhouse cites an article on judicial decision-making that notes that "judging at the level of the Supreme Court involves a complicated blend of legal, policy, and ideological considerations.”  She continues:

“Judges’ decisions are a function of what they prefer to do, tempered by what they think they ought to do, but constrained by what they perceive is feasible to do.” By “feasible,” Professor Gibson means something deeper than “what they can get away with.” He means that judges operate within the public and private norms of the judicial role and of their own institution, constrained by the need to safeguard institutional legitimacy and by “the sociopolitical environment within which the institution is located.”

To the list of constraints, I would add the text of the constitutional provision or the statute at issue, along with the relevant precedents that guide the analysis.

Justices are not merely fungible but they also cannot (or, to simplify, do not) -- even in the obvious 5-4 rulings of which about a quarter are -- just act like politicians.  Some cynically say they do, but this simply is not what occurs.  This is not to say that in various controversial areas that the judges break down in predictable often liberal/conservative type ways, but even there, not all the time.

And, they only go just so far, for various reasons, including the text, precedent, institutional realities etc. This perhaps is part of the reason why the public still respects them more than "politicians," even with the Gingrich type comments.

More on NDAA

Here is more discussion on the controversial defense authorization. As to Marty Lederman, I and others (even implicitly a fellow blogger) criticized his current policy of not allowing comments as compared to his practice at Balkinization during the Bush Administration.

NYT online went to paid content last year ...

but (perhaps given my time as a registered user) I was given a stay.  It is over -- now they want me to pay .99 for the first month and some ridiculous amount then on.  No thanks.  So, only twenty articles a month for me. I already read almost that many.  Oh well.

What We Worry?

The NYJ didn't back up Rex's bluster/confidence (former, a bit much), which hopefully will be a learning experience. The press conference played on the radio today was a bit of joke. I find the WFAN's lead sports guy a bit of a pompous ass, but he was totally "on" ridiculing it.