Senate Republicans Represent The Senate Now?

NLRB V. NOEL CANNING, ET AL. The motion of Senate Republican Leader Mitch McConnell, et al. for leave to participate in oral argument as amici curiae and for divided argument is granted, and the time is to be divided as follows: 45 minutes for petitioner, 30 minutes for respondent Noel Canning, and 15 minutes for amici curiae Senate Republican Leader Mitch McConnell, et al. The motion of Professor Victor Williams for leave to participate in oral argument as amicus curiae and for divided argument is denied.

The agreement that led to the confirmation of NLRB board members did not end this case because the decisions by the recess appointments (the case might determine if quotation marks are required here) still have to be considered. The Senate vote on applying the filibuster to appointments clearly has significant importance to the whole question too though how it will affect the legal dispute is less so. 

This will be the first big case to be heard in the year. The most notable thing in an otherwise boring (going by Scotublog) day of orders involves this case.  It is not surprising Prof. Williams did not get oral argument time though his brief arguing that this should be rejected on political question grounds while supporting the government is worth a look and pointing to the obstruction that has led to the usage of recess appointments. It argues that the latter should be justiciable too if the former is. Unlike in the DOMA cases, do not think the federal government would mind such a ruling, so there is not a special need for additional voice.

The Senate Democrats do not oppose the President's recess appointments here, so there is more of a conflict there regarding the McConnell involvement. In DOMA, BLAG provided a voice in support of the legislature (well half of it -- this to me was a problem on standing grounds; fine with its use to provide the other side) that passed the legislation that the President felt unable to defend. Here, the Senate has chosen not to defend its interests. Why should the minority step in? Would a single senator have the power to step in to defend a personal interest?  Perhaps, time should be granted to the majority side here to provide the opposite viewpoint, explaining why Senate interests are not denied here. The executive probably doesn't quite do the trick there.

I'm generally open for liberal involvement of briefs and voices at oral arguments, but it should be evenhanded. Here, the Republican minority alone is being granted time to provide the "Senate" viewpoint. Its brief underlines that is the primary concern for their involvement.  I can see how this is not on all fours, if here clearly on their side, with the Canning defendants. Still, if there is going to be voice for the Senate, shouldn't it come from the MAJORITY side?!  Why should the minority get separate time in oral argument while the majority's interests apparently are to be left to the government's time?

It does send a symbolic message that as some justices are all concerned with Senate privileges here, only a Republican minority of the body feels oppressed here. Checks and balances are not being denied here. It's true that if there is a constitutional limit, a group cannot delegate it away.  All the same, as Williams et. al. show, the Senate has various ways to protect its interests here without the courts trying to fine tune the word "recess" (or "the").  If the U.S. Senate as a whole actually opposed this move, fine.  I oppose giving the minority a special voice here.

ETA: Miguel Estrada is the voice of the Republicans here (at least going by the brief), helping the side currently supporting what helped block his nomination to the court of appeals. He is their often cited filibuster martyr, a gift that keeps on giving, in more ways than one. Look for some interaction with his pal.

NFL Watch

Jets got back to their "we can beat mediocre teams" ways though their defense gave up a lot of points. The Giants were smacked around and eliminated. The Saints got their mojo back. Couple scrubs didn't quite have upsets. Colts backed into the playoffs. So it goes.

Barbara

A bit lackadaisical but good film about an East German woman doctor in 1980 dealing with her new settings, the result of her desire to go West. Good lead performance. It is a good low key way to tell the horrors of the regime. Also liked the director's The State I Am In.

Supreme Court Watch

Next week will concern some important EPA related oral arguments, though the discussions will probably be pretty technical at times. My take -- "Congress should be the one to sort out the EPA’s role." The USSC seems to want to avoid the 1A issue, but they also just heard a military protest case. Howard Zinn's spirit was rooting Erwin Chemerinsky on.

Nelson Mandela

His death sadly was just a matter of time (well, so for us all) given he lost so many years in prison. But, The Onion points to the truth when showing how much he is honored. OTOH, there are reasons for some dissenters. He provided a path for the oppressed everywhere, but even there, the story was a tad more complicated than the myth. Fighting of all types is.

Kiss My Math!

Social sciences was my cup of coffee in school, but math was okay -- liked geometrical proofs. Couldn't say "Pythagorean" Theorem though. Wonder Years' math babe Danica McKellar has a charming set of math books (showing it is a bit hard to explain math) meant for teenage girls. An interesting p.o.v. on subtracting negatives.

"College Athletes, Full-Ride Scholarships, and Anti-Intellectualism"

I have seen arguments that "college athletes should get paid" (and it's so wrong that they don't!) and my sentiments match this essay. Anyway, most college sports don't really make money. So, what some elite group will get special benefits, like some nobility?

Leo Tolstoy

One concern some have over the contraceptives question is that religion gets special favoritism. But, that's in the First Amendment and works both ways. Also, "religion" -- as I have noted in the past -- is widely defined, if with unclear borders. I have not read his tomes but one interesting example here is the "religion" of Leo Tolstoy.

Holiday Displays

One seasonal event for me has been reading what the Supreme Court has decided regarding holiday displays -- we each have our eccentricities -- agreeing with Stevens on the ideal policy. It is not some earth shattering issue, but favoritism does raise some concerns.

Hobby Lobby, the Employer Mandate, and Religious Exemptions

Prof. Volokh is providing a useful series on this topic, putting aside some possible disputes on specifics. I provide my "two cents" via various comments. Some comments are just depressing, more so the ones firm in the crystal obviousness of their confusion. One doozy: comparing providing coverage with personally performing abortions.

Longford

This was an interesting HBO film about Lord Longford, a British reformer's efforts (as part of his general long campaign, in part motivated by his religious beliefs, to help prisoners) to help an infamous female serial killer. Turns out he is a bit too naive about her case, so mixed as assisting the redemption promotion effort. Good lead performances.

SNF

Offensively named team raced out of the gate for 14 points and then forgot how to score. The not playing like their name team came back, but made one mistake that made the score close enough for an end of the game scoring drive for the tie. Helped by confusion over down markers, a turnover clinched the game. 5-7 is not good, better after starting 0-6.

Football

The Jets have gone from win/lose to just lose -- another rather pathetic effort that is not just about who the QB is. The Viks tried to help the Bears win in OT with a joke field goal attempt, but won in the end (with time running low). Jags won again. Devil Pats found way to win. Falcons (now horrible) even had an upset. SNF match-up of losers; MNF of winners.

Rev. Joe: Gnosis and the Holiday Season

I first read Elaine Pagels and her works on gnosticism / related materials some time ago, also listening her give a lecture (of which I remember nothing other than one person who was in the audience) in person. As a sort of prelude to a planned purchase of A New New Testament, which includes the Gospel of Thomas, I re-read Beyond Belief: The Secret Gospel of Thomas. A review, including to a reference of a personal tragedy which she notes inspired her account, can be found here.

A bit of false advertising -- the book does discuss this early collection of sayings, but really as only part of a chapter which compares it to the Gospel of John. Pagels' theory, which seems reasonable given how the gospel takes special note of an apostle the others merely cite as one of twelve, is that John is actually a reply and rebuttal to the Gospel of Thomas (or at least the community that ultimately gave it its name). The Gospel of Thomas, or at least the parts discussed in the book (for some reason the Gospel of Thomas is not even included in an appendix -- the whole thing is only a few pages long -- which is a bit of a cheat), suggests there is a piece of the divine in each one us. There are 114 sayings in the gospel, but Beyond Belief is not a full discussion of its meaning or even possible development.*

The orthodox view is that Jesus is the only path to the divine, the Catholic Church now standing in for him. The book as a whole is a now familiar discussion on how orthodoxy developed, gnosticism losing in the process. Pagels is attracted to gnosticism largely because she sees it as more open-minded, more willing to allow for individual inspiration, difference of opinion and new insights on what the old texts mean. The movement also was elitist though, believing only some of the special knowledge (gnosis) to truly understand things. It also is known for its symbolism, hidden meanings and some opaque texts. Pagels explains how the suppression of this view was in a way more democratic. A person didn't have to be a member of the select few that understood to be saved -- s/he simply was baptized and followed the tenets of the Church. The book starts off with a pretty positive view of the charms of said institution, people willing to die for it, in part because its support for the poor and the integrity of the believers.

The mysticism that is reflected in gnosticism continued in other forms, including Sufism in Islam. I'll probably reference something involving Islam and this country's path to religious freedom (of course, not as important as corporate owners denying employees the ability to use their own compensation to make conscientious choices involving birth control ... the next big thing the Supreme Court will handle on that front) after finishing a book on the subject.  Until then.  [ETA: I'm finding the book a bit too detailed at the moment though the general subject matter is interesting. So, don't expect that report any time soon.]

Moving on, did look at Ronald Dworkin's (the famous legal philosopher) final book that argues that religion can exist without God. I read a summary of his position, notes of sort on a series of lectures, and appreciated the effort. Dworkin argues that our stance on life's meaning can have religious significance, also seeing religious value in nature overall. The book confuses some of this with some philosophical analysis (Dworkin often makes some good points and then tries to force the issue by arguing a narrower basis than necessary) that makes for some tedious reading.  A summary of things can be found here.

that we may then unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations and beseech him to pardon our national and other transgressions [Washington, 1789]

Meanwhile, the holiday season has begun. Michael Dorf suggests the problematic aspects of Thanksgiving and Hanukkah (by quirk of the Jewish calendar, coming very early), but as I noted there, we need not focus on them. This is not a matter of forgetting the imperialism involved, which is part of the story. Still, a day of thanksgiving (which traditionally included appeals to humility -- that is, the very need to give thanks) and family holidays overall is not merely a day for turkey, gluttony, commercialism or even football (of course, darn Dallas won late again ... Ravens hung on in a good night game though).

 Hanukkah also -- note to self that this would be a good thing to read about** -- seems to me to be ultimately about freedom of religion. The official Hebrew Scriptures ended with pagans in control -- the Persians -- but pagans who respected their freedom of worship. Greeks and Romans as a whole also honored that (if not quite in the modern form). Hanukkah celebrated a defeat over a leader who oversteps the agreed upon bounds.  I discuss this framing of things (realizing there are various aspects of the story) some more here.

And, now Christmas season -- as seen by a surfeit of Christmas movies (multiple Lifetime and Hallmark channels have lots of space ... have seen a few good ones already plus old favorites) ... has begun. There already was a Good Luck Charlie / Jesse joint episode. Sort of lame. Note to others -- I do not recall the last time there was an extended stoppage of a subway train, something that used to happen a bit more. Given the size of the system, this is but one of those little wonders.

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* One thing that excites some is that the Gospel of Thomas (though its esoteric nature alone makes it not surprising it was rejected as canonical) possibly takes us back to the first century -- which is not true of most of the works often cited as possible alternatives to canonical texts here.  The Didache is also referenced, another very early work that is a sort of liturgical guide for believers.  One verse-by-verse analysis.

** Update:  Various online accounts suggest the meeting of the Jews and Alexander is cloaked in myth or confusion, including Josephus' account. But, the one account I read in the library summarizing that the Jews retained their ability to practice their faith obtained from the Persians when a new empire came to town until the leadership the Maccabees rebelled against changed gears still seems to be true as far as it goes. Regardless:

²⁴ The number of details and the bulk of material can be overwhelming for anyone who wants to read an account of the events. But I have attempted to simplify it for all readers; those who read for sheer pleasure will find enjoyment and those who want to memorize the facts will not find it difficult. ²⁶ Writing such a summary is a difficult task, demanding hard work and sleepless nights. ²⁷ It is as difficult as preparing a banquet that people of different tastes will enjoy. But I am happy to undergo this hardship in order to please my readers. ²⁸ I will leave the matter of details to the original author and attempt to give only a summary of the events. ²⁹ I am not the builder of a new house who is concerned with every detail of the structure, but simply a painter whose only concern is to make the house look attractive. ³⁰ The historian must master his subject, examine every detail, and then explain it carefully, ³¹ but whoever is merely writing a summary should be permitted to give a brief account without going into a detailed discussion. ³² So then, without any further comment, I will begin my story. It would be foolish to write such a long introduction that the story itself would have to be cut short.

Good philosophy from 2 Maccabees.

[week hiatus]

Book Quickies

The Voice of Harriet Taylor Mill takes an interesting approach to deal with this 19th Century feminist -- the first part is a faux diary to provide a sort of autobiography. Decent idea but seems to go too long. The rest covers various categories of her life and a chapter on her joint efforts with John Stuart Mill, including On Liberty. Meanwhile, an old copy of The Element of Style had some charm and The Prince was pretty readable ... for a skim.

Two Point Try Bites Packs

Down 16, the Packs scored in the 4Q and failed the two point try. They went for one next time and got a FG. Unlikely they would get two twice. That extra point hurt.

Week 12: Insults and Upsets

Bucs/Jaguars won. Rams over Bears. Chiefs lose. Cards win, making some noise. Packs tie -- FG doesn't do it in OT and Viks hold serve ... eventually. Jets fail to beat mediocre team again but still in field of mediocrity for last slot. NYG come back only to give fans a shot at solar plexus at end. Denver has it's own screw fans moment. Ah football.

Kristin's Christmas Past

This Lifetime Xmas film about a woman who goes back to try to change a teenage regret was overall well done though the ending was a bit off.  Nice touch about dial-up / AOL though it was mixed in with a bit of sitcom silliness. Well acted as a whole, Debby Ryan turns out to have but a cameo. Elizabeth Mitchell does a nice job as the mom.

The "Lennie Rule"

A NYT article discusses an upcoming Supreme Court case that might clarify to some degree the guidelines to determine the degree of mental retardation necessary for it to be a bar to the death penalty. The Supreme Court gave the states broad discretion here and I have my doubts the case will do that much to change things.  The article references Texas:

Both prosecutors and defense lawyers in Texas are looking to the high court for clarity when it comes to evaluating intellectual disability.  Texas lawmakers have been unable to pass a law creating a standard, so the existing criteria come from a 2004 decision from the state’s Court of Criminal Appeals in the case of Jose Garcia Briseño. The appeals court invoked, in part, an evaluation of Lennie from John Steinbeck’s 1937 novel “Of Mice and Men,” writing that "most Texas citizens would agree that Steinbeck’s Lennie should, by virtue of his lack of reasoning ability and adaptive skills, be exempt from execution.  But does a consensus of Texas citizens agree that all persons who might legitimately qualify for assistance under the social services definition of mental retardation be exempt from an otherwise constitutional penalty?"

This upset Steinbeck's son:

Steinbeck’s son Thomas described the court’s reliance on the fictional character as “insulting, outrageous, ridiculous and profoundly tragic.”

Jane Austen had a character in Northanger Abbey speak of the value of novels, in part since they provide the "most thorough knowledge of human nature."  I do not think Thomas Steinbeck, therefore, should be insulted. The reference was used as an example of what a "consensus" test of the term would entail in practice. The opinion merely cites Lennie once in its extended discussion of the appropriate test. The whole thing is likely not to be an exact science and a reference to character could be useful to provide a type of archetype, a representative inmate.

Legal opinions use fictional references, including of Shakespeare or the Bible, to make their points. So, putting aside "in part" being a tad vague, the response by Steinbeck's son is misguided. He should be appreciative that his father was seen as so intuitive of the human character.  The other labels used are similarly misguided -- it is not "outrageous" etc. either. Who knows the full context of such things -- quotes in articles are so opaque at times -- but what is "profoundly tragic" about using him? You might get the idea that the whole opinion sets up a "Lennie Rule" and is a quasi-literature analysis of the character or something.  It was a citation.

Anyway, Supreme Court rulings in the criminal justice or any number of areas provide at best a floor and overall guideline of what must be done. When it comes to mental retardation, insanity or any number of other imperfect lines, there will be a lot of room along the edges. This doesn't mean there should be no line -- insanity is a basic concept in law when applying guilt. It is far from crystal clear in each case. Hopefully, the case will clarify things somewhat.  And, if Lennie can help, go at it.