Senate Dems Approves Biden’s $1.9 Trillion Pandemic Relief Plan

People were pissed off at this and I can understand why people are sensitive given the minimum wage hike is a basic Democratic principle and Sen. Sinema seemed to be like a mean girl or someone from Clueless here. And, partially since politics is symbolic and this is the age of .gifs and all [years back, instant video got some people in trouble, even before Twitter]. She likes to flaunt her style, but you know, I think she overstepped here, especially for those in her state that still honor John McCain.

As one might recall, he did a thumbs down gesture to reject what would amount to a major screw of the Affordable Care Act. He wanted at least a fuller debate on the question, finding fault with the approach used. But, Sen. Sinema's vote didn't matter here. The Senate parliamentarian already said it was not germane to include a minimum wage hike to pass Big V relief by reconciliation. Plus, eight Democrats, EIGHT, opposed the move here to include a minimum wage hike in the bill. So, bottom line, though her anctics were stupid [including a staff member calling criticism sexist], it was also stupid to focus so much ire at her. Talk about primarying her. You know, in 2024.

Motion to Waive NOT AGREED TO , 49-50 - Tuberville #1386 (prohibit funds made available under title II to States, local educational agencies and institutions of higer ed that permit any student whose biological sex is male to participate in sports designated for women or girls).

— Senate Periodicals (@SenatePPG) March 6, 2021

After Sen. Ron Johnson forced the whole bill to be read aloud and then didn't object when a Democrat move to cut down debate for more time than it took so it both looked stupid and pointless, we had a "vote-a-rama," which is basically an all nighter of message amendments that mostly were defeated. This includes this offensive one, that Lisa M. voted against, balancing off Manchin's decision for some reason to vote for it, while many were eating breakfast. OTOH, things might have been over much sooner if a vote didn't have to be left open for nine hours to deal with Manchin (thanks Maine et. al. for this guy being the 50th vote) wanting to reduce unemployment benefits.

See below: the "slimmest" majority for the Am. Rescue Plan is not really all that slim, is it? The Senate is deeply malapportioned, which explains why the idea that this was *not* widely bipartisan is wrong. https://t.co/rAt7oqk9FH

— Victoria Nourse (@vicnourse) March 6, 2021

Prof. Nourse should know about this sort of thing, being blocked from the court of appeals thanks to the filibuster and Ron Johnson. This is already a steady message without a direct attack on the Senate by the Biden Administration. Biden himself, speaking after the Senate passed their version of the bill, referenced the bipartisan support of the message. This, as an analyst noted, includes various local Republican leaders including the governor of West Virginia. So, a 50-49 (one Republican missing because of a family funeral) -- all Democrats (not DINOs ... including Manchin and Sinema ... all those "I won't support her people, of course, apologized) -- should be put in perspective here.

As Biden is pushing back in further -- to mid-May -- the goal for vaccines for all (my mom got her first shot as did my sister from what I can tell), it is still something that it was all such a close thing. Biden won by a sizable margin -- in the popular vote -- but under 50K votes in the right states could have screwed us. Many more people are represented by the Democratic 50 [though the imbalance hurts Texas too in a way that might give you a 5-4 Republican split with one person, one vote], but we are currently stuck with the system in place. That left this to two close elections in Georgia, one a special election arising from an illness, and both benefiting from Trump laying an egg.

This takes us to the filibuster again, which already was watered down in a way that allows the Democrats (and Biden) some grace. The Republicans didn't use the reconciliation process last year, so the procedural quirk is that the Democrats get two bites of that apple this year. And, the Democrats will again benefit from the end of the filibuster for executive nominations. The Dems need to water it down further somehow, including to manage to pass the voting rights bill. Rick Hasen (Election Law Blog) insists it is impossible to pass H.R. 1 (which has things like D.C. statehood) though doesn't tell us what might be. Sen. Amy Klobuchar, who comes off as a moderate (if liberal in various ways), has said she supports ending the filibuster for this measure at least.

The House now needs to have to agree to the Senate changes and the particular pain might be the minimum wage though various reductions might be bothersome. One move was to reduce what people will get -- note bigger checks -- if they make over let's say 70K. I got to say there that if the messaging of "survival checks" is used, maybe that is understandable. The changes very well might be stupid, but that's life, basically. As to the minimum wage, Sinema tweeted that she supports ... well let me quote it ...

pic.twitter.com/a2VkwKcY8r

— Kyrsten Sinema (@SenatorSinema) March 5, 2021

I'm not sure what that exactly means, but I'll take it as support for a minimum wage as a separate bill if there is bipartisan support. There has been some support of that for some lower amount. I think it's possible. I also understand -- though yes a minimum wage hike is stimulus too -- why it makes some sense not to use the stimulus to support this. But, I'll end with this. Sinema and Manchin has not yet been required to really match their anti-filibuster rhetoric in the teeth of actual legislation. 

The voting rights bill very well is that "red line." If they block it with 48 Dems supporting it, I will find being PISSED OFF at them justified. They still will be Democrats, but that would be much more of a FU than her Alicia Silverstone imitation. 

Meanwhile, NOT ONE Republican in either house voted for this. NOT ONE.  And, one of the impeachment managers in the first impeachment collected social media of House Republicans that promoted Trump election lies. 

SCOTUS Watch

Orders: There was a short order list on Monday, but the Supreme Court granted a case of some importance about applying equal benefits to Puerto Rico residents. The lower court agreed with the challenge so the grant makes sense. Since Puerto Rico does not have the same tax liabilities and so forth, the details would be interesting to see. There is this interesting bit from the summary:

Last month, Democratic lawmakers and religious leaders urged President Joe Biden to withdraw the lawsuit and give Puerto Rico residents access to SSI benefits, but Biden’s acting solicitor general, Elizabeth Prelogar, did not take any action in the case after replacing Wall. The justices granted the government’s petition on Monday; absent any further developments, the case will likely be scheduled for oral argument in the fall.

The other case taken concerns the rules for military pay, which sounds more of a run of the mill sort of thing. The interesting thing to me there is that when I checked the docket page, the filings were done by paper pursuant to some rule that allowed that sort of thing. (I checked the docket page, using the docket number, to quickly get a sense of the details of the case. Here, the electronic filings were not there.) From what I can tell, this is often done to keep certain personal material private, which would apply in such a personnel related matter. One of those inside tidbits. 

Various other odds and ends.  

=====

Garland: On Monday, the Garland nomination advanced out of committee 15-7 with basically the usual suspects voting against him, Sen. Ben "Trump is guilty" Sasse's vote is a bit of a surprise. He engaged with Garland on executive/legislative power issues without any real sense of finding him a problem. Those opposing the nomination were Sens. Michael Lee (R-Utah), Ted Cruz (R-Tex.), Ben Sasse (R-Neb.), Josh Hawley (R-Mo.), Tom Cotton (R-Ark.), John Neely Kennedy (R-La.) and Marsha Blackburn (R-Tenn.). Notably not there is the ranking member, Chuck Grassley, who tossed in some bullshit remarks before voting the other way. 

 =====

Voting Rights: I noted the important oral argument -- as much as for the rule applied as much as the specific challenge -- on voting rights earlier. Again, H.R. 1 is being debated by the House.  So, I'm not sure really -- just as Biden has changed more than one Trump executive policy -- what the long term effects will be. Also, for a major oral argument, accessible live via telephonic arguments, it annoys me that C-SPAN did not provide live coverage on television. Brian Lamb et. al. has long made it a cause to allow Supreme Court to be televised, but now that at least audio is available, it gets second level status even for major oral arguments (online). 

Today, an amendment was defeated that tried to go all the way regarding voting rights of felons, at least in federal elections. That is, allowing convicted felons in prison to vote. I support that but only a narrow number of Democrats did. Not surprising since only two thinly populated states and two maybe states (D.C. and Puerto Rico) allow it.  So, maybe that tried to bite too much at once. How about non-violent crimes? How about anyone not in prison (even if they are on parole or probation or under the control of the criminal justice system somehow)?

===

Opinions: Two opinions released on Thursday, Breyer writing dissents in both with Sotomayor joining, Kagan joining the second.  The first is something of note, even if a technical question involving how far to cover disclosure requirements, since it was Barrett's first opinion. She shouldn't be there.  Again, Kagan joined this opinion, Breyer using his often multi-factor judgment process to dissent. It was a fine tuned thing.

[Interesting analysis noting Breyer argued the "drafts" in this case usually actually was the "final" one in. Called the dissent "minor." The dissent was also later edited to add "with respect" before the "I dissent."  That sort of adverb usage is of some notice to those who keep track of these things though I'm not sure -- wouldn't surprise me -- if a deep dive study was done.]

I'll repeat a couple standard things -- I wish SCOTUS itself released audio and transcripts of opinion announcements, COVID not even allowing them to be released eventually by Oyez.com. Second, I actually favored Barrett over Kavanaugh, but that isn't how it went down.  It was a big tainted process, even if in a vacuum she might have been acceptable for a conservative POTUS (or whatever Trump is).  Hard to take these people.

The first tainted Trump seat wrote the second opinion, involving statutory rules as applied to deportations for at times relatively minor crimes even if the person was in the country for maybe decades.  The Court has had a mixture of these cases, sometimes deciding for the immigrant. Not this time and Breyer had a pretty strong dissent.  One notable thing here is that Breyer argued the text (a common trope for conservatives) compelled the result, while the majority arguably was more pragmatic. 

===

Biden Changes: "[Biden Administration] asked the U.S. Supreme Court to dismiss three pending appeals on [Trump’s] effort to withhold millions of dollars in law enforcement funds from states and cities that refused to cooperate with federal immigration authorities."  The Bush43 to Obama transition by one account I read had very little of this sort of thing (if any at all), but Trump is Trump, and the Administration itself was very energetic about not only changing policy but reaching out to try to do so.  

The Supreme Court clerk per rule accepted the request. 

===

Big V: Retired Supreme Court reporter veteran Lyle Denniston tweeted that "The word from the Supreme Ct today that the Justices have now been vaccinated," following up with a hope that they immediately go back to live sessions. He is a big critic of the telephonic arguments. But, as a reply noted, it isn't just about them. It is about the advocates and everyone else. Biden said we should all have shots by the end of May. The Supreme Court has one more session of arguments. You can eke it out. 

I'm wary about them as noted in the past but think there are some good points. Each person asking questions is good though the time restraints clearly bother some of them.  The ideal situation would be live video, which other courts here and abroad have found quite possible. Video would provide a means to fairly easily use the traditional approach even remotely.  The problem is multiple justices simply don't want to do that -- since other courts handle it, I don't believe there is any other real reason for it being impossible. Also, decent bet they suddenly stop live audio too.

===

Other: We will have orders and opinion(s) next week. As seen, though some of this is tangential, even without many opinions, the Supreme Court keeps observers busy.  There was no orders after the set day on Monday as of after six p.m. (the vaccine note was not posted on the website btw), but I'm aware of there habits now. I won't close this off until the morning.  

No late night stuff.

Sarah's Long Walk

After reading a book on MLK and how he affected the 1960 election, I checked out an earlier book by the father/son team about Sarah's Long Walk.

It hovers around an important 1850s Massachussetts court case that actually upheld segregated education though the state soon after changed the policy. The book uses the case as one of many stories the occur in the battle for racial equality there, including efforts against racial discrimination in public accomodations and a fight for marriage equality. It focuses on leading black activists of the day. Some very interesting material.

ERA Again

"ARTICLE — "Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex. "Sec. 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article. "Sec. 3. This amendment shall take effect two years after the date of ratification."

March is Women's History Month and one thing the House might cover this month besides the voting rights bill is the ERA. 

As we last left this, three states (those necessary for ratification if none of the "backsies" are allowed) voted for the ERA, the House voted to extend the deadline and competing lawsuits either wanted the ERA to be blocked or allowed. The latter as I recall rejected on standing grounds or something on the district court level. So, there is more litigation going on though it might be mooted at some point. 

I don't want to say too much until more developments occur, but as with D.C. statehood, I'm more supportive of ratification. One thing is that a closer look at the text suggests it is not the same thing as the Equal Protection Clause. This curiously seems not to get the attention it deserves, which might explain my past position to some degree. The ERA says "abridging" equal protection. That matters, especially in conservative courts, since it is stronger than mere "deprivation." A strong reading of the Fourteenth (and Fifth) Amendments can bridge the gap, but stronger language matters.  The Fourteenth Amendment itself was ratified in part because it was believed by some the Thirteenth was too narrow to do what the Congress at the time sought to accomplish. 

My somewhat idiosyncratic (not totally so) concern also was that too much time has passed to count the three recent state ratifications. Mind you, I think legally Congress has power to allow for it. Coleman v. Miller and history shows this. And, I don't think revocations should count. But, as a matter of good constitutional policy, which does matter, it concerned me. Still, Congress does provide a national expression of the public will here and the facts on the ground has changed the law anyway. Plus, thirty-five states already ratified originally. It is more a matter of constitutional nicety not to respect that.

The 27A in fact -- though its reach was so much more narrow -- is much more concerning there since most of the ratifications came late. An amendment mostly in hibernation since the early 19th Century really should have been sent back to the states. It would likely have been ratified anyways -- the number of states ultimately (if after formal ratification) would have been enough. And, unlike the baggage of the ERA, who would be against that amendment really? Partially since it really is symbolic, Congress by current law following it anyway. 

The symbolism alone of the ERA is much more debatable, especially again given the nature of the courts and government. Clear text with additional legislative history [a curious question for an amendment ratified over decades but I suppose the history in Congress when the ratification deadline has significant weight]  would have special value here. This would include a wider meaning of "sex" discrimination in recent years, including as to GLBT and gender identity issues. The special effect of clear text here is seen by the signing on of Gorsuch in the Bostock opinion and now with the added value of a more up to date ratification not based passed in the 1960s. Its limited possible effect factored into my thinking.*

As seen here, there is a plan (with at least a few Republicans on board) to reintroduce a measure to extend the deadline.  I will try to keep watch -- there is so much happening -- and update as required. I already added an addendum. More will come.

===

* [ETA] One basic thing that still bothers me is singling out one class of people for equal protection of the laws.  It is part of a wider principle -- for instance, we do not single out the types of religion or speech or punishments in the relevant amendments.  

Why should we do it for "sex," even if in the scheme of things this will cover more than a narrow view of the term?  If you press me, this remains a powerful argument, especially when the Constitution right now has the potential to bring in what the ERA offers. Yes, "abridge" matters, especially in more conservative times.  But, if you favor sex specifically, does not it suggest other categories are in some fashion less protected too?

The one basic exemption here is voting rights. The Constitution protects voting rights piecemeal though the Supreme Court ultimately said voting was a fundamental right so deprivation should be given heightened scrutiny across the board.  In recent years, the value of this was somewhat weaker than in the past, but it an appropriate path. And, that only underlines the power of an argument that a general voting rights amendment is necessary, not the logic in the 21st Century of piecemeal approaches there.

Voting Rights

The Supreme Court is hearing Voting Rights Act matters this week and that is generally a concern with this tainted conservative leaning court. The anti-democratic nature (small 'd') of the Republican Party in general is apparent though this has been true for quite some time at this point. The one "both sides" moment when reading that article is that I too think by this point Republicans are not just political opponents at this point.

There are things that can be done. The House -- now that it passed COVID -- is shifting to its voting rights bill. Also, we have this item: "Ex-President Sarkozy Found Guilty of Corruption in France." Trump continued his lies in front of the CPAC conservative gathering over the weekend. But, there are civil and legal means to address him and his fellow conspirators. This includes the 14A, even if there is room for debate on the exact nature of the appropriate legislation.

I read an interesting article on the application of a "right to life" by Asian courts (death penalty, abortion and euthansia). It is sometimes misleadingly noted that only the U.S. and a few miscreants have the death penalty. The interesting situation in South Korea aside (moratorium and narrow rejection by the constitutional court for striking it totally), Japan did have an active death penalty in recent years. At one point, some judges said the death penalty might at some point outlive its legitimacy, noting: "a nation’s culture develops to a high degree and as a peaceful society is realized on the basis of justice and order."

The U.S. isn't quite there yet, but the Garland Justice Department [likely to be a thing some time in early March] probably will apply a death penalty moratorium. For years, in some ways from our founding, the death penalty has been said to be a violation of basic republican values as well.

Cuomo? Resign

I supported Cynthia Nixon last time, but realized she was not really a credible actual threat to Andrew Cuomo. The point being, as in many primaries, to put some pressure on the frontrunner. On that front, how much pressure from the left Cuomo received is unclear. One can feel pessimistic. OTOH, Biden has already did various things that shows real respect of the left flank. He has already provided a good amount of good faith to help balance off some cases where I will be disappointed.*

I also was wary of various early criticisms of Gov. Cuomo's response to the Big V. The pressures, especially given the early unknowns and difficulties, as will as his anti-Trump nature in some ways (regular respectable press briefings etc.), were things I factored in. Comparing New York (or New York City for that matter) to smaller states that to me were rather different in various respects came off as bad comparisons.

WATCH THIS: @MehdirHasan cites the @DailyPoster's original reporting on Cuomo and notes that it has now taken center stage in the scandal engulfing Cuomo. Hasan says Cuomo's nursing home immunity law "looks corrupt." Watch NY Democratic @SenatorBiaggi's response. pic.twitter.com/6Mqj9mgZ1d

— The Daily Poster (@dailyposter) February 26, 2021

Things are starting to be much more wary on that front, especially since President Biden no longer allows Cuomo to have a "compare to that guy" vibe. So, even if -- though a few were wary even then -- trusting him with emergency powers was acceptable in June 2020, it's time to take them back now. Even insiders are defending incomplete supply of nursing home death data in "okay, it's wrong, but you got to know what sort of pressure we were under" ways. This sort of "we can't trust them so we need to hide things" rhetoric doesn't come off well, even when you are sympathetic to the people involved.

A second former aide to Gov. Andrew M. Cuomo is accusing him of sexual harassment, saying that he asked her questions about her sex life, whether she was monogamous in her relationships and if she had ever had sex with older men.

The best defense to this appears to be that the "sex pest" (to cite one label in the thread to the article that I'm not a big fan of) is not legally guilty of sexual harassment. I'm wary -- if we are going to get all legal -- about relying on incomplete summaries of what is being alleged. Even there, such "grooming" (to cite what some are calling it, over "mentoring"), is a red flag on a political level. As seen in the impeachment battle, what is "legal" and "politically bad" isn't the same thing.

My state senator is particularly concerned about sexual abuse so one can guess she is particularly on this. As Sen. Biaggi noted in reply to comments that her push for him to resign without further investigation: "I welcome a credible & independent investigation, but as a former Cuomo staffer, legislator, Chair, and generally observant person, I have seen quite enough to know that his resignation is what is best for New York and the earnest staffers who work in public service."

Cuomo's people themselves are already accused of being arseholes in various ways including using sexist language. [This good op-ed on "penis politics" also tosses in my mayor, who has issues too.] Cuomo himself is repeatedly compared to Trump, including him being a bully and going after people. And, again, you have the whole nursing home controversy. He should resign. At some point, this sort of thing has to have consequences:

Stephanie Benton, Director of the Governor’s Offices, told me in an email on December 14, 2016 that the Governor suggested I look up images of Lisa Shields — his rumored former girlfriend — because “we could be sisters” and I was “the better looking sister.” The Governor began calling me “Lisa” in front of colleagues. It was degrading. I had complained to friends that the Governor would go out of his way to touch me on my lower back, arms and legs. His senior staff began keeping tabs on my whereabouts. “He is a sexist pig and you should avoid being alone with him!” my mother texted me on November 4, 2016.

He's up for reelection next year so he might try to eke out the term. But, it isn't even one general problem. It is starting to cascade. The realistic result to seek here is a fully independent investigation(s). That is after all what Biaggi types are there for. To push the median. And, as with the whole Franken thing [still talked about as if it was some tragedy when factoring in everything it was rather understandable, especially at the time], a full investigation very well might actually be the appropriate response. Repeatedly, you have people resign (or settle), and you do not get the full story. So, that can be useful here.

But, it is getting to a "he got to resign" point.

---

* I don't think Biden let off the de facto leader of Saudi Arabia. He did not simply get a "pass" for setting up the murder of a legal resident of the United States, a journalist who was far from a radical opponent. It very well might be true more should have been done. But, what has been done so far is far from trivial. And, like moving around a tanker, this does require some care.

SCOTUS Watch

[Order Day Entry expanded.]

The Supreme Court dropped an order (and later had an oral argument about a water dispute) list as the Merrick Garland (AG) hearing started. Garland, with questioning from two of the new Dems including Sen. Ossoff from Georgia, aced his questioning. He's a great choice. Republicans trolled, but many of them probably will vote for Garland too.

The Order List closed the book on many Trump election disputes (I see Georgia, Wisconsin and Pennsylvania; saw Arizona mentioned) though three conservatives would have taken the Pennsylvania case (a bit less stupid), which they might take eventually [beware] in a non-Trump case. Thomas' dissent is troubling. Various odds and ends, including Sotomayor being recused for some reason in a relist denial. We should get recusal clarity. They (for now, unless something new is used) disposed of the latest delay of Trump financials in New York.

SCOTUS also took a few cases though two involve federal polices (public charge and stronger limits on funding of reproductive health services) that the Biden White House might change. It also sent back a qualified immunity case, which might be a promising flag of at least limited concern about its overuse. Finally, among the denials was one by Stormy Daniels trying to get her libel suit back active, raising a technical dispute. 

===

The one opinion released during the week (another Opinion Day scheduled next week) was summarized by SCOTUSBlog thusly: "A unanimous Supreme Court on Thursday issued a limited ruling on the Federal Tort Claims Act’s judgment bar."  Sotomayor added a concurrence of a few pages as she sometimes does to argue the opinion wasn't that broad. It ultimately comes off as a limited loss in regards to attempts to gain justice for governmental abuses.  Thus far, three justices have two opinions each, three members (including two of the Trumps) have no opinion.  And, we have multiple unsigned opinions.

One of the oral arguments held this week had some problems audio-wise, the Supreme Court refusing to join many other courts here and abroad that manage video. We will have more telephonic arguments next month. I'm starting to find them a bit tedious, the back/forth of the old system helping freshen it up some.  Meanwhile, after an earlier hearing on the "shadow docket," the House had one on expanding the lower courts. All were open to the idea though Republicans want to wait until 2025 (nah).  

ETA: Another late Friday (around 9PM) order dropped by the Supreme Court, splitting 6-3, applying recent (unexplained) similarly split order regarding California Big V regulation involving churches (and other stuff).  It is "clearly dictated" that relief not provided by the lower court be provided.  Not really, since the last ruling didn't actually provide a clear five justice (member) opinion, but whatvs.  Amy Howe summary here.  

Basic point here is that the government said it would change its policy NEXT WEEK, but the Supreme Court feels compelled to overrule the lower court late Friday ("throw out the trash day" clearly now applies to them too) and not actually say why.  I don't buy Prof. Eric Segall's (nice guy who engages with me on Twitter and on Dorf on Law) "not a court" line about the Supreme Court, especially since he doesn't actually fully show his work on how it is not one as compared to others. 

But, a "court" should have certain basic aspects and showing its work openly, especially when it is overturning past precedent, is part of it.  Courts, like legislatures (see confirmation of multiple "justices") and executives (Trump highlights this), can fail at their basic responsibilities. They can not really act "like a court" should.  All will to some degree and some argue (including in this context) the Supreme Court has done in broad strokes in various ways.  Sometimes, it's pretty blatant.

Diane

A lesser Lana Turner film, Keep Your Powder Dry, was on a few weeks ago and I thought it enjoyable enough. Looking, the library had Diane, a historical drama with a young Roger Moore and a bit part with "Klinger" from MASH. It was good too, as shown by my ability (harder these days) to watch it straight through. The young actress who plays her rival was also very good. The history is a bit shaky but not too bad as far as I can understand.

I had less luck with Dark Was the Night, which I sought out because Bianca Kajlich from Rules of Engagement had a supporting role. It has something going for it but it was oh so heavy-handed; had to turn if off.

Born Yesterday

Two of the three leads in this film had long careers, including multiple movies for which they are particularly known. The heavy even has a charming cameo in A Little Romance (1979) Judy Holliday (cancer) died in her 40s and had few notable movie roles. But, she shines here in a role she also aced on the stage.

The main card game scene, including focusing on her flair while playing while her powerful big lug boyfriend basically watches in awe, is great. Ditto the scene where the writer hired to "teach her couth" (as the t.v. summary framed it) was schooled by her when he had to explain his pretentious article ("why didn't you just say that?" indeed). The film itself has an almost Capra belief in civics (rare crooked members of Congress, huh?) but its heart is in the right place and still has something to teach us. I recall seeing the remake and thinking it okay.

Odds and Ends

Let's cover a few unrelated things raised during the last week.

Svengoolie: The Sven movie this week was the Invisible Man Returns, a follow-up to a film I saw in the past. The first was pretty good though at some point it got a bit silly, the thriller nature of the film mixed with almost a keystone kops sort of vibe by the goofy police after them. It also had a young Claude Rains, which leads to an (as I recall, unnoticed by Sven) connect with Jimmy Stewart, since two actors in the film (a supporting role later played a familiar angel) were in well known Stewart movies.

This one had a young Vincent Price and weakly was connected by having the brother of the last guy have a supporting role. The last invisible man (who died at the end), had a cameo on a police record, this time the chief police investigator early on being on the ball about the whole invisible thing. (Other than the invisible drug having a slightly different name, reference was made to lots of murders by the last guy, but that didn't happen).

This helped make the story a bit more serious, but the writing was somewhat weak later on.  Price hammed it up a bit (and was less reckless than the first guy).  A few weak story points (including one involving him with a gun that disappeared at a key moment). Overall, watchable, but disappointing.  There is one more in the series as well as more invisible people films (including an amusing one involving an invisible woman covered in a past episode).  

====

Abortion Ban News: South Carolina Governor Henry McMaster signed into law the Fetal Heartbeat Protection from Abortion Act, prohibiting an abortion if a fetal heartbeat is detected.  The ban was then immediately put on hold by a federal court.  It is very unclear to me if five members of the Supreme Court [yes, I will continue my moratorium of calling Trump's appointees "justices"]  wish to uphold such a law.  

A complete ban like this is quite different from a range of other laws (TRAP laws generally) that burden abortion rights, unduly burden by a reasonable application of Casey, that very well might get you five if the Supreme Court faced the issue directly.  Now, many do not think so -- they think "Roe will be overruled."  I question this.  It seems to me that what will happen will be further watering down of Casey.  That isn't a trivial distinction though it will cause a lot of problems. The breadth of these laws (another would allow a father -- to use a term without controversy in this context - veto without exception) underline the fact.  

===

Ted Cruz: New York City has had multiple snow storms (two or three of some note) so far this season, the first coming even before winter began. This is notable since in recent memory we had very little snow. When I was growing up, I repeatedly had to shovel snow on what seemed like an annual basis.  We had two in the last week or ten days though the second one was fairly mild.  The weather (this is more consistent) continued to be weird -- one fifty degree day followed by a twenty degree day.  

OTOH, snow and ice in the South is a lot more notable.  Texas in particular had (and the effects are still lingering) a hard hit. Texas it turns out isolates itself from the rest of the country when setting up its energy system.  This seems like something (especially giving the size and national/international effects of Texas' system) that can be controlled somehow by national means. Congress has commerce powers over that and should use it.  And, there might be addition problems regarding how Texas is handling things as covered here.  The net effect has been power and water cut-offs. 

The pain this has caused is evident and it is something that like the shocking nature of the weather for which NYC has not generally suffered.  (To be clear, heat and other things have been an issue in limited ways, especially for less well off people in some places.)  What seems to have happened is that Texas is generally a place with mild weather, so the government cut corners that now has bite them in the ass.  Again, actually, but the last time was too long ago to keep them honest.  

This shows the need not only for insurance (for when you need it) but again a united, national, system.  Change is hard with Ted Cruz being too often representative of party in the government.  Cruz provides a special face on the issue here since he and his wife (as seen in a text message leaked) decided it would be a good time to go to Mexico for a trip.  Cruz, this not being the years before social media gotchas, was caught with photos. He first said he was only being a good dad, his young daughters wanting a break.  This asshole move looked even worse when his wife's texts proposing to neighbors that they go on a trip came out.  

[ETA: The Texas energy situation is complex so I am not surprised if my statement here is incomplete. Here's one discussion.]

There was a "defense" that he couldn't do much anyway.  This is dubious given the efforts being made by his last Democratic opponent as well as AOC (who Cruz from time to time tweets at, as if he has a crush on her) to help people there, including raising money.  Cruz also has been called out as a hypocrite because he campaigned last time about how he was there for Texans during a former emergency.  And, yes, part of being a representative is a symbolic and personal connection to your constituents.  

Going on a trip, especially after it was flagged that unnecessary international trips to Mexico should not be made anyway, just is stupid all around.  This without his CYA move.  OTOH, he won't run for re-election for years. He has high popularity numbers among Republican voters.  So, why should he really care?  Recall again he just aided and abetted the insurrection on the U.S. Capitol.  And, then went out of his way to help the Trump side during the impeachment trial.  It's like rubbing our faces into it.  

Bottom line, even more than other Republicans, he should be shunned. There is only so much one can immediately do here, as noted, and it on some level seems so hopeless. See also Trump -- like Rachel Maddow covering the Georgia criminal investigation of Trump annoys me, since like her long ago continual pushing the idea that maybe THIS TIME torture by the Bush Administration would actually lead to a criminal case -- I recall her dragging out hope in a couple particular case for years (spoiler: no prosecution) -- is at least this point almost fatuous.  

But, sigh, yes, it is important you put it out there. Maybe, even assume there is real hope.  And, you need to push against not just Republicans generally, but certain miscreants like Trump.  It will help, if in ways that are not totally clear, in closer cases and anyway simply is right. 

SCOTUS Watch: They Are Back

Books:  No late nite action on Friday, but it would be suitable to toss in a couple books with some SCOTUS content.

You are Not American: Citizenship Stripping from Dred Scott to the Dreamers is a good overview for the general reader by a law professor expert in the field.  I carped at the summary around the edges, but a lot is covered and covered well, plus in an approachable way. Can't ask for more for such a volume.

Let the Lord Sort Them: The Rise and Fall of the Death Penalty was also good, especially if you don't really take the title at face value. It is more a look at the death penalty in the modern era (1970s+) in Texas, providing some familiar material while adding additional information and vignettes.

On that front, at some point, it started to seem a bit padded. The "fall" part was covered some, but seemed a bit incomplete. Also, if you are going to highlight a prosecutor/judge and her two death penalty cases, don't drop one of them [one got off death row because he was a minor; the other from what I can tell is still there].  Overall, very readable, and worthwhile.

SCOTUS was back from their Winter Break with a conference on Friday, after a quiet week. They also have announced not only orders but one or more opinions next week.  But, we also have various odds and ends that touch upon them to talk about beforehand. No orders this week.

First off, we have coverage on how SCOTUS is slow-walking (still) the Trump tax financials, the author of a biography of more than one justice flagging it as notable how long it is going on now. One would be a book on Justice Sotomayor, who was according to an interview by a judge targeted by a violent unhinged litigant [her son was killed; the person killed himself], was a potential target of violence.  Be well Sonia!

On the continual attempt to get some relief on Trump abuses, we now have a civil suit signed on by at least the House Homeland Security chair. Interesting approach that uses the old KKK Act of 1871, which is particularly concerned with them trying to interfere with legitimate government. I had thought that the best litigant would be someone physically harmed (like a police officer), but that's good. I am pessimistic about the level of justice we will receive though at least in regards to financial crimes, the wrongdoers might be younger members of the family too.  Plus, it isn't just Trump as a whole.

I have been particularly concerned about what is more and more seen as excessive use of the shadow docket, particularly in substantive cases that divide the Court. The House had a hearing on the question, including one of the legal Twitter people that I keep track of these days. His remarks includes some possible ways to encourage less use of the docket. I am somewhat pessimistic there since I think it is largely by choice.  

The Biden Administration continues to examine past Trump submissions though on an upcoming voting rights matter is only somewhat in disagreement.  Garland on Monday!

Rush Limbaugh

The fact that Rush (who has died at 70) received a presidental medal of freedom from Trump was fitting since Trumpism is the end result of Rushism. He was not only a horrible human being, but skillful in promoting his partisan poison.

An apt discussion was provided by Al Franken, who years back wrote a "kidding on the square" satiric book about him. The same would be suitably said when Newt Gingrich dies though the fact Bill Clinton actually managed to legislate with the Republican Party in the 1990s even with that sort of no hands barred partisanship shows we have moved some.

I guess once 1/6 happened, his work promoting partisan poison and lies was done and it was almost a scripted time to die. No "rest in peace" for you.

More on Witnesses and Timing

The below is extended discussion on two impeachment related issues that continued to be discussed after the trial was over.  I originally had it as an extended footnote, but to provide a more crisp after-action summary, I decided to provide them their own entry.  Yes, I felt compelled to add more.

Witnesses

I still think they should have took more time -- it need not take never-ending time since the Senate Democrats had the power to vote up/down a plan for a limited set (see Clinton impeachment where three witnesses were called; not some open-ended process) -- to call witnesses.

A lawyer responding to TPM said "The managers said they wanted one witness — a one hour deposition of Herrera Beutler." I listened to Raskin. He didn't actually say that. He first asked for her AND access to her notes. That is rather notable. Also, he said that she referenced others and welcomed them if they were willing to come forward. Finally, he said if given the witness and notes, the managers would work off not. I took this to mean that he left open others, if warranted.

It's done, but I'm not sure what the point of all the drama was to insert a single statement into the record. It was a helpful statement but (and the "it doesn't matter" brigade willing to throw anything at the wall cite this) what really changed? Any votes? Any big clarification of what Trump was guilty of? Not really. It's one person making a statement. You don't even have the notes! People who insist it was so very helpful are being a bit silly.

Plus, the morning vote raised hopes. The other side appeared worried. The fact they agreed to release of the statement underlined that they didn't lose much at all. And, again, didn't we say we wanted witnesses for "real trial" last time? The disputed facts and new stuff that came out in the media underlined the value of it. The Dems looked bad and (unlike sometimes) the criticism this time was not really wrong on some level.

You do have people, including some members of the impeachment team [at least publicly], rather upset at people like me being upset. The reasons don't come off as very credible. Anyway, it would have been helpful if instead of simply reading the statement into the record, which came off as tacked on, Raskin made a statement on the agreement. For instance, he could explain why it net was the best approach. Maybe, not saying anything was part of some deal, but you know, it would have been more convincing.

And, why couldn't we have people who were willing witnesses, including one would think the police officer who received special congressional acclamation? Again, such witnesses in a trial or hearing would have special symbolic effect to spread the whole story to the nation. My only counter, perhaps, is that if you did that, the Trump side would feel a need to troll answer somehow. That, however, is not quite the "it wouldn't matter" etc. type typical replies you heard that pissed off people like me. 

Timing

A lot also can be said about timing and I heard one person suggest that it might have mattered if the Senate at least started the trial before 1/20. Maybe. But, the figleaf probably would be as helpful as long as the final vote to convict took place once he was no longer in office. Taking their position seriously, I actually would find that actually credible. So, if it mattered, it wouldn't have mattered much.

I think it was wrong for the Senate -- once the insurrection happened -- to go into pro forma session (not doing business) after the electoral count was over. The situation was live and warranted them to be there. The Senate also should have accepted the impeachment before 1/20, which would have given Mitch's post-vote speech a tad bit more credibility.

But, the whole process took time -- contra to the Trump side this goes to the presence of "due process" -- and it is hard to see how it would have been over before Trump's term. The House could have started immediately, but even there, the process was going to take time. The great prosecution case itself took time to prepare and present.  Getting the whole House to impeach (tossing in the ritual of asking Pence to do the 25A) also took time on the front end.  Like moving a tanker around, these things take time.

The complete 9/11 Commission deal might take like a year or something. This was for a more limited reason and the timing was appropriate. For instance, Rep. Raskin noted that change of power moments are very sensitive and a special statement underlining the insurrection (which very well might not have been over, including talk of some "real" inauguration date still coming -- rumors of additional protests were afoot) was time sensitive.  Republicans were already starting to handwave on 1/6. 

Hope for ten more votes while emotions were still high seems naive. After all, the House vote couldn't be much sooner -- impeachment on 1/8 or something wasn't likely -- and you got ten votes on the Republican side.  Noting that, the extra time that the prosecution side had to give a great presentation [the witness issue aside, which very well involved something unsaid] was appreciated.  

Again, the things flagged in the last post don't hold up.  But, we still can and should do other things. Let's see how it goes.

Impeachment Aftermath: Anti-Impeachment Points

[To make this more crisp, I separated an extended additional argument as to witnesses and timing into another entry. I also slightly edited the existing content.]

With the trial set to begin on Monday, I thought I'd would offer some opinions on the proceedings.

Let's see how this worked out. Then, maybe I too will move on.

1. I do not think that this trial is unconstitutional. I am instead against the trial on prudential grounds.

I supported it and think it worked out fairly well.

2. My chief prudential reason is that the trial will end in an acquittal. Thus, all we are doing is creating a precedent that what President Trump was not a high crime and misdemeanor. This will not serve us well in the future.

The NYT did have a big TRUMP ACQUITTED headline on its website. But, if he wasn't brought to trial, he would have been deemed to get away with it too. Plus, if people look past two word headlines, this "acquittal" makes OJ Simpson's look good. There, you had concerns the cops were racist liars.

Here? You not only had a 57-43 vote, but a strong statement [however phony it is on some level] from the Senate Minority Leader that Trump was damn guilty, still is open to punishment but the Senate doesn't have a role any more. The "future" to me also would be more likely to see the value of impeachment in this end of term situation, especially after yet another precedent of a trial taking place. I too think that useful.

3. A full-blown trial will take a long time and be a circus. The Senate has other important priorities during the pandemic. Moreover, the country does not at this time need another extended discussion about the former President dominating the news.

The trial to me probably provided the FIRST full fledged comprehensive discussion of the story here to the degree it was addressed to the nation as a whole. This was a useful enterprise. It did not crowd out other action, especially since national legislation has to be crafted over time, including  by the House. And, a respectful effort -- and I think this was that -- would be evidence that the matter was addressed. That would help moving on to other things without it being an open wound.

The trial was not a "circus" though the Trump side was somewhat clownish. Yes, they threatened a circus if they had witnesses, necessary to me for a "full-blown trial," but I don't even think that was necessarily required. Anyway, the trial was pretty full.

4. A short trial with no witnesses is equally pointless. At least with a proper trial you could argue that we might learn new facts. A short trial doesn't even do that.

We learned new facts. This includes a wider audience who unlike some "we" may not pay as much attention. This includes media reports about Kevin McCarthy etc. of the sort that come out when things like this are put out there and people dig deeper and have stories to fill. Not on back pages either as might be if it was some congressional hearing. It was not "pointless."

5. Having Patrick Leahy as the presiding officer will create a number of problems.

It was a non-story. The expected subjects made an issue about it but it did not actually affect to trial much at all and the textual parsing was silly. Leahy stumbled a bit a few times, but it didn't really change anything. So, you had the Sen. Mike Lee business, which was asinine on his part, and it led to a bit of confusion. Roberts being there would have changed little.

6. Section Three of the Fourteenth Amendment offers a better path forward, as I've explained before and will do again next week.

It wouldn't be better but we should still use it, especially since the 14A is not just about Trump, but a range of people not even covered by impeachment itself such as state officers.

New York News Update

And Also: February is short but it has its share of holidays from Groundhog's Day (six more weeks of winter), Presidents' Day (Schumer yesterday referenced the annual reading of a Washington address), Mardi Gras (2/16 this year) and Valentine's Day [not in that order].  I'm sentimental enough to generally be touched by references of love and like me a good Hallmark or Up TV romance. 

As we stress out, love might not be all we need, but love and all that stuff does help a lot.

I have community and political (including a conservative organization) offices near me, but as a whole, have never over the years spent much time at all over local politics. It is partially because it is rarely reported, though being represented by AOC and Biaggi (state senator) changes that on some level.

Even there, how much is my local area (though political insiders apparently label the guy as lousy, my city councilman is nearly never mentioned) mentioned? I'm glad that the second place winner, who worked in the term limited previous incumbent, is running again this year. Maybe, do a better job of selling yourself -- the race last time had multiple candidates, but the winner's campaign posters dominated the neighborhood. I only saw a few of the second place winner, who lost by only a few hundred votes.

I admit to not watching Bronx news (there is a station) or reading City & State, except when news alerts come up on certain writers' Twitter feeds. To be somewhat fair to myself, I doubt many around here do either. It is more a matter of the local papers (NY Daily News etc.). But, that only takes me off the hook somewhat -- it is not like, as compared to national news, I can spend hours a day really keeping track of these things.

Nor, is the effects to me personally -- though national things do have more national effects -- significantly different in various cases. Part of the reason is that my focus for much of the last two decades have been people I don't like, New York more low temperature there, even when Republicans had more power. This is partially a matter of my favored position (relatively speaking). And, it is not like there aren't grounds to be on notice. This was seen by news regarding Gov. Cuomo not being aboveboard regarding those dying in nursing homes during the Big V, though the exact range of wrongdoing is unclear. 

The mayor has also not been free from blemish. On that front, I simply don't know really if it was that he was bad or simply disappointing. From my limited attention, I lean toward the latter. I also found it stupid that he ran for president in 2020, one of the many also rans.  A New York mayor might in theory add something, but it seemed more of a vanity campaign that took his time away from doing his job.  Yes, the job I didn't pay much attention of him doing.  He's barred by term limits from running in 2021, which really doesn't seem problematic -- in principle, term limits are problematic, but really, eight years is enough for local positions like these. 

Andrew Cuomo did a good enough job to prevent any serious competition last time.  If he plans to run for a fourth term in 2022, I think that might change.  People might be ready to get rid of him, at least enough that Cynthia Nixon types won't be primary opposition (in both terms of the word).  Anyway, the immediate concern in a few months will be picking among the Democratic mayoral field, now the job of the voter to rank on their ballot.  Biaggi and company is rooting for Scott Springer. But, I'm leaning toward Maya Wiley (black woman activist with some connection to DeBlasio), especially since I want a person of color as mayor.  

Scott Springer probably would do a good job. The other options seem to be also rans, one or more I am sure are good people, if not anyone that one really expects will be mayor of New York next year.  To toss it out there, my assemblywoman wants to be Bronx borough president. So, I guess if that happens, I will have to worry about that slot. Maybe, the guy who quit that slot to for a more profitable  city council position will lose and run for it again!  

One more thing. In the last few months, I saw Morris Park Business Improvement tweets about a chance to get a box of fresh vegetables for filling out a questionnaire about my views on local businesses. Nice deal.  Local groups in that sense have done a few things that pop up -- for instance, there are colorful plantings along the main avenue. There is also -- don't know when it was drawn -- a bicycle lane there as well.  

The times make public events less likely, but I do wish more attention was given to promoting the local community. This could include periodic events where local government representatives will come and performances of locals etc.  I think I'm set in my ways for too long to suddenly spend much more time focusing on local matters, but this sort of thing is helped by others making it more inviting. I don't think there is enough around here.

Impeachment II: Questions, Witnessess & Closing

Finale: 57-43.  Republicans to convict: Burr, Cassidy, Collins, Murkowski, Romney, Sasse, Toomey.  Cassidy voted for jurisdiction but not witnesses, so I was thinking he might be a "not guilty."  Burr had a good statement; he voted against jurisdiction but unlike some others actually accepted the vote that upheld it.

Sen. Burr (and Toomey) has announced he won't run again, but that is true for one or more of the cowards.  The two women senators are a usual pair that in rare cases are rightly seen as moderates.  Romney is in a special category. Sasse is mostly all talk, but acts a few times too. Democrats held firm. Let's not forget the 14A.

I added this and some other details after my first publish after the rejection of witnesses. But, just one more thing: there will be various accounts about how they didn't vote to convict. Fine.  They didn't convict OJ.  When even your Minority Leader has a speech saying Trump is still liable and passes the buck on bare procedural grounds, maybe toss that in too. 

There was a move to suspend the impeachment trial during the Jewish Sabbath, but the Trump lawyer in question later said it wasn't necessary. The reason is fairly clear -- they wanted to get things over quickly. The defense case on the merits, to the degree one can call it that, only took a few hours of the sixteen hours granted. A new lawyer with plenty of Trump bombast dominated and probably can be honored for basically doing his job, if one not the same as much respect overall.*

The impeachment managers could have basically supplied a classic rebuttal, but things basically went to questions. Last time, by one account from a reporter of the events, we have over 100. This time we had around a quarter. Questions tended to be targeted to one side to basically "lead the witness" though a few times it was as a gotcha. A few was for both sides; really, each question should be answered at least in part by both sides. The questions included attempts to clarify Trump's knowledge of the danger to Pence (basically handwave response) or to try to provide a legalistic definition of incitement. On that, Raskin did a good job, but it was a sort of trap -- this is an impeachment, not a criminal trial.

Senate Minority Leader Mitch McConnell (R-KY) is expected to vote to acquit Trump according to an email he sent to colleagues that was obtained by Politico. McConnell suggested in the email that his decision was “a close call,” but leaned on the argument made by Trump’s counsel that impeachments “are a tool primarily of removal and we therefore lack jurisdiction.”

We also had an attempt to re-litigate the jurisdiction issue. The fact that (after the last serious Republican candidate for POTUS voted to convict and a leading member of the House Republicans voted to impeach) the Minority Leader here rests on procedural bullshit is telling. So, he cannot rest on Trump's basic innocence?  And, he did so -- he had a speech after the vote that basically agreed with the managers but oh so sorry, did not have the power.  Bullshit.  Jurisdiction was decided and the argument is b.s. either way.  Nice speech, like on 1/6, but net, he did his part to enable. And, McConnell was the one who said the impeachment could not be delivered when the House wanted to days before the Inauguration.  But, that is a bit off as a full answer, since the managers would need time to make their case.

The last question (from Cruz's colleague from Texas, a leading Republican partisan) was actually fairly helpful. It asked why impeachment was necessary, especially now, given the criminal alternative. A basic answer -- and this is the answer to Democrats and others who cite alternatives, including congressional hearings that are a dime a dozen -- is that impeachment is different.

It is a national inquest that in this context addresses the nation in a special way, a way other means do not, with special penalties. This includes the national attention it is receiving, including reporting that brings out new or lesser known details to the nation in way some hearing would not. Raskin quite correctly added that it was important to be timely in this case since the time was sensitive, threats particularly important to respond to when new leaders come in. I'd add the danger is not over in that respect, some even suggesting the "true moment" is the old March inauguration date.

It is a bit amusing that the general inference one takes here is the other side is basically daring the government, including Georgia (which is investigating the matter, though I'll believe they will actually prosecute when I see it), to prosecute. (Some seem rather serious about it.) Perhaps, [partially at least] to use it for partisan effect. We should use all the tools, including the Fourteenth Amendment and civil lawsuits. I'm not really into a censure though ... in this context, the 14A is a logical approach, a sort of statement with a censure-like aspect while also addressing a wider question that might arise later on when various people's eligibility is challenged.

But, as last time, some do not accept this. They want to move on. This was seen when in the evening more and more news accounts came regarding Minority Leader Kevin McCarthy reportedly talking to Trump (who taunted him the the insurrectionists supported Trump more) as the insurrection was taking place, multiple Republican members of Congress talking about it or related matters, Sen. Tuberville -- who also worked with Trump back in December -- talking about that call shortly before Pence was escorted out, regarding Trump knowing Pence was in danger etc. The evident move was to call witnesses.

Remember last time when Democrats were (correctly) pissed off that Senate Republicans refused to have them? Rep. Raskin opened things in the morning asking for the chance to briefly depose one Republican in particular that made a statement, get her notes and if other witnesses wanted to testify, to do the same with them. The reply was more bullshit, including threats to call a who bunch of witnesses. Of course, that wasn't Trump's side call -- the Senate would have to agree to witnesses. In a 55-45 vote, Graham changing to "yea," (he earlier threatened if they asked for witnesses, the Republicans would retailiate with a whole bunch, including Nancy Pelosi ... again, they cannot do so on their say-so), debate was agreed upon.

This basically took off off camera for a few hours.

The result was Raskin got to read that Republican congresswoman's statement into the record (see here for a play by play of the day's events) and me screaming at the television for them to do their fucking job. You have the impeachment. Witnesses are part of it. You were upset about it last time. You open yourself up to the usual suspects complaining how you are just weak, while others will say the witness talk was just partisan rhetoric last time. The whole affair is depressing, including talk by one about how long the Clinton trial was. We can't have such an extended trial in these times so easily. But, we need not. And, the process is not necessary to call them while we listen or something. We didnt have that when they called three during the Clinton impeachment.

This isn't some, as someone snidely said, intended to be a "Matlock" moment. But, it is a moment, not the same as extended little covered congressional hearings or criminal trials for specific people -- not Trump [if he actually is prosecuted, it is likely going to be for a limited role, such as the Georgia call, and a plea bargain is quite possible]. And, we should use it to the degree we can. People testifying matters. It adds a different aspect to the proceedings. It also can be used to clarify things, especially Tuberville's phone call. There is no good reason to deny them. It will not drag the trial on. In fact, once the trial is over, the Senate is likely to take a break for the holiday.

I had to turn off the closing argument of the managers after this. It all had a feel of also ran. It's depressing. I would like to get some background -- probably will come out -- about the back/forth behind the scenes. Anyway, if you want to "move on," my patience for compromise has decreased. 

(Raskin in his press conference noted that the Republicans are basically relying on jurisdiction or something though I think some -- or their supporters -- will rely on fact too.  But, I didn't really expect sixty seven senators. Citing that at some point is stupid.  The issue here is making the case.  A single statement read is not the same thing as the alternative. 

Plaskett raises concern about subpoena being resisted but it far from clear what would happen there.  If that happened, you could show it to people.  You try. Sometimes, you fail.  But, you try.  If this was all so obvious, not sure why it took like two hours to settle things.  So, sorry, love ya, but you are spinning some people. The article here speaks of how the matter "bedeviled" the managers. If it comes or came out one or more managers were upset at what happened, it wold not surprise. They won't say so publicly. What's the point? You publicly go with you are left with. )  

Let me end with this. Getting information via news reports -- see Trump taxes etc. -- is fucking annoying when there is a way for it to come in an official way, including official congressional proceedings. "We will have hearings" only goes so far there even then. So, we will get a Page 10 story in five months or something about information that excites Rachel Maddow or something, huh?

We have a fucking impeachment trial now. 

----

* Like last time, and like his m.o. generally, Trump's side complained ("whined" seems appropriate ... maybe "ranted") about lack of due process. It is cited by some that the Constitution gives each house in relevant part "sole" power here, but  that isn't necessary. 

Or, appropriate. There are ways an impeachment process can be patently unfair. "No review, tough luck," is not how things work there.  It is also part of relying too much on court review to decide certain questions.  To cite a standard concern of mine. 

The bottom line -- though this time for reasons of time and the evidence being clear the House sped impeachment along -- is that there was plenty of due process, other than the basic supermajority that in the end is the reason Trump was not convicted.  Trump's side had access to the evidence, counsel to make a case, a chance to be heard and so forth.  As RBG once noted: "This case is most readily resolved under a core requirement of due process, the right to be heard."

Moving past the bombast, the claims are much more narrower, including parsing what the law requires. Again, that doesn't just include constitutionally requires -- the Supreme Court leaves that very open -- but what a reasoned judgment would.  Many might not think the allegations -- sensibly made given their role -- is worth this much comment. But, it is useful to address them.  They even might be valid in some other case.

Strength to Love (MLK)

It might be crowded out with everything happened -- we even now have the Year of the Ox (and compared to Rat) with the Chinese New Year -- but this Black History Month. I gather it is not yet "People of Color" History Month or something quite yet. I am reading some books that is appropriate to that time, including skimming a collection of Martin Luther King Jr. sermons (with his widow providing an introduction to the 1981 copy).

There is some good content here, most of them edited sermons tied to a particular biblical verse. The first to me is one of the best -- "A Tough Mind and A Tender Heart," a sermon on "Be ye therefore wise as serpents and harmless as doves" (Matthew 10:16). As MLK notes, that is a tough thing to do, but provides a complete person. The first part in his view is a reliance on judgment, including science. The second a matter of compassion and love. And, then he argues that the nonviolence approach furthers both. This is of course what he is particularly known for and later sermons cover this ground some.

Sermons also cover the dangers of misguided conformity, being a good neighbor (pre-Fred Rogers), a "knock at midnight" (both the fear of the late knock, the tendency to resist requests of that nature but also how the darkest moments are but those before dawn provides salvation -- note he at times grants realistically that might not come, that we must sometimes rely on at most inexact success) and what being a "fool" meant to Jesus. MLK notes that calling a rich man a "fool" is not solely a result of him being rich. It is a misuse of his riches.

All of this is provided eloquently with current allusions (such as those that are misguided by advertising or the press) as well as learned philosophical references and probably more familiar to many of his audience references to biblical texts. And, let it not be lost he is a minister to a certain congregation. The first sermon respect of science should not misled that he is a Unitarian type Christian. Later sermons not only target communists but humanists. Science is criticized too, at least those who would only rest on that. For MLK, God and faith in an ultimate salvation is key.

I respect the person speaking here so do not suggest that this is just stupid. But, at some point, it did concern me. The "humanist" who does not believe in his God (putting aside just how broadly one should define that) is not just someone who relies on science. A communist might rely on the state or a specific ideology, though communists come in various forms and some probably in his time respected some form of religion, but the humanist underlines the limits of science. They honor the human, which includes love, compassion and in some fashion what is generally spoken of as the "spirit." If their aspirations are "confined to man and earth," that covers a lot of ground, including moralistic values akin to his.

I think he goes too far against them, but again, realize both his audience and his position. He is after all a Baptist minister. I personally think his overall message is not lost by facing up to a reality that lacks a supernatural deity. This surely includes his nonviolence message, which he argues works both on a a personal level and as a force of change. Two thousand years passing suggests the limits of reliance of Jesus' assumed resurrection being key to the change of humanity. It worked a lot more closer to the event. And, we do not know what the future will bring. A faith in ultimate justice very well might be ideal, if only because living one's life in that way results in the best results.

Noting that a collection of sermons, less than 175 pages, won't provide a full accounting, I think it helpful to read him overall to get a sense of his vantage point. This includes to the degree I disagree with it. I readily admit to probably not reading enough of his writings. This is a good means of dipping one's toes.

SCOTUS Update: Various Actions As Winter Break Continues

The Supreme Court continues their winter break but some action did occur involving them in various respects. The big news is an death penalty case but there was numerous notable other events.

[One more thing. On the judicial front, it is important that various judges are taking senior status, opening slots for Biden while leaving some good judges on the bench to serve in various instances. Another leader appeals court judge announced just that, with a commenting about being happy about Biden having a certain breed of dogs. The judge has a German Shepherd guard dog named "Vixen."]

The first order early in the week was just a follow-up from the Friday night fun time COVID affair, applied without dissent to another case.

Now that the Dems have clear control of Senate committees and everything, we will have a Merrick Garland confirmation hearing! Well, for Attorney General. But, I reckon that will have some amusing (ha ha) allusion to his Supreme Court seat somehow. The road to a 1/3 tainted Court. Around five years from when he was appointed, he will be confirmed ... for another position. 

And, fwiw and not surprisingly, the Biden Justice Department changed the position on the ACA case. To the obviously sane position. That is, a zero tax penalty doesn't make anything unconstitutional and if so they can just sever that portion. The Supreme Court will likely do something like that anyway so this won't moot the case, probably, or change things. We shall see. They also changed their position in another case involving an alleged "taking" merely for having the right to access workers.

Willie B. Smith III was scheduled to receive a lethal injection at a south Alabama prison for the 1991 murder of Sharma Ruth Johnson in Birmingham. Prosecutors said Smith abducted Johnson, 22, at gunpoint from an ATM, stole $80 from her and then took her to a cemetery where he shot her in the back of the head.

For me, the basic problem here is that it is unclear to me the value of executing someone (it is of marginal interest at this point, but also for which seems like an ordinary murder from those bare facts) after thirty years. Justice Breyer has repeatedly cited the problem with waiting so long, including in respect to the penal purpose.  Thirty years is not enough time for even such a horrible crime?  This is what a lottery amounts to.

But, the actual remaining claims are more narrow though the often conservative 11th Circuit did hold up the execution -- (1) should he have the right to have a minister at his execution (2) if he can provide evidence that intellectual disability interfered with his ability to challenge his right to challenge the execution method (he wants nitrogen gas). The latter does not appear to be a full fledged intellectual disability claim though one of these days we will likely have nitrogen gas used.  

The former has split the justices (including conservatives) for a while now.  As I write this before SCOTUS action, it seems to have more of a chance. OTOH, it should not in the end actually delay the execution too much.  Anyway, the continuing dispute (SCOTUS just sent a case back to examine a related issue) underlines to me maybe they should have taken a case to set basic terms.  

So Alabama had until midnight local time (1AM EST) to execute and the decision came around midnight SCOTUS time. They without an opinion (result at least is not surprising, only dissenters concerned with method of execution these days) rejected the second. It's disappointing that there was no written dissent, but maybe one will somehow come later on.  Yet again, the majority should at least explain themselves in an execution case.

As expected, the first was the most promising though there is a 4-3-? split.  Kagan for the liberals and Barrett says he has a right under religious statutory rights in prisons. Thomas dissents without opinion. Kavanaugh (with Roberts) follows past sentiment that a neutral rule (including nothing) is acceptable. He also added that given that wasn't the result, the state should figure a way to get the advisor in to stop long delays and allow "closure" for victims' families. Note that only some of them get closure by executions, especially those who oppose executions.  

So conservatives split on a religious liberty question, but we don't quite know how since Alito and Gorsuch didn't explain their votes. We don't know. On a matter that repeatedly has come up now, the Supreme Court still doesn't have a clear opinion.  This is stupid, especially since this provided a prime case to do it. Why it took to midnight is unclear too. Neither exactly wrote long opinions.  Did Breyer or Kagan try to get Alito or Gorsuch and fail? It's Breyer's first majority (in a way).  And, then there is an earlier opinion by Alito (with Gorsuch and Thomas!) that rejected a related claim on procedural grounds, but said maybe it could be a serious claim in the right case.  Alito wrote a key prison religion case here too.

The net result is more shadow docket opaqueness and for at least a limited time no execution. The state really should have had a back-up plan to allow the spiritual advisor in if that is all it took. At some point, delays have something to do with state action.  Anyway, since there should be no big reason not to have the advisor in there, if Alabama really wants to execute him, they still should figure out a way to do so soon. 

Okay let's summarize. (1) This is a reasonable religious claim, especially since it is done via a targeted statutory protection.  (2) Some conservatives at times at least will be consistent but the shadow docket is still stupid. (3) Here is a summary of what happened, again from the great Amy Howe. (4) The whole thing underlines court reform has various parts. And, to quote one link, (5) Smith will [likely] still be killed, albeit with the presence of a pastor who, in Smith’s words, will “relieve his struggle as he passes” and help him “properly express to God his repentance.” Even if they accepted his other claim, that would be so, just with a different method. 

[The House will have a hearing on the shadow docket.]

====

As expected, the February arguments (starting on Washington's Birthday, Presidents' Day next Monday, near Lincoln's actual) will be by telephone. I have voiced some support, and do still think it helpful to give each member a chance to ask questions.

But, the back/forth -- if imperfect and in practice selective (still, that can be addressed too) -- of the old system also had charms. Other courts manage to keep that by using video, which easily can you know include some sort of method [let's say a flashing light] to flag who should talk next while the others mute.  Many use video conferences, including sometimes with nine or more members, and they can too.

So, it's 11:45PM. I think we are safe.

ETA: Basically so.  Justices in their circuit role act upon things and there was a report that Breyer did so and turned down a request in an extradition case on Saturday. I don't really keep track of that sort of thing here, but since it received notice in a news article, decided to toss it in.

"White House aide suspended for threatening reporter"

It is reassuring to listen to press conferences led by Jen Psaki ["p" is silent], who is both good at her job and not an asshole. She, for instance, already had extended service providing a similiar service in the Obama State Department. One recent question regarded what AP summaries this way:

White House deputy press secretary T.J. Ducklo has been suspended for a week without pay after he reportedly issued a sexist and profane threat to a journalist seeking to cover his relationship with another reporter.

This is after President Biden earlier said this:

“I’m not joking when I say this: If you ever work with me and I hear you treat another colleague with disrespect, talk down to someone, I will fire you on the spot,” he said that day. “No ifs, ands or buts.”

I take this as not merely a flourish, but something with some bite. We can parse it some, talk of "colleague" and so forth. A total zero toleration rule whenever someone might "talk down to someone," which literally covers a range of human language, would be a bit absurd. But, the facts here are troubling. Per an article cited:

During the off-the-record call, Ducklo made derogatory and misogynistic comments, accusing Palmeri of only reporting on his relationship—which, due to the ethics questions that factor into the relationship between a journalist and White House official, falls under the purview of her reporting beat—because she was “jealous” that an unidentified man in the past had “wanted to fuck” McCammond “and not you.” Ducklo also accused Palmeri of being “jealous” of his relationship with McCammond. (Palmeri had no prior relationship or communication with McCammond before calling her to report on the Playbook item, which was a story that she was assigned and had not independently pursued.)

This crosses a line. The coverage of the press office official has included reference to his serious health problems involving cancer. I saw some suggestion that it, including perhaps medication, would affect his judgment. Eh. We can't handwave this sort of thing. It is also suggested that he needs the health insurance. I find this a bit amusing on some level (sorry), but even that is unclear -- after all, ACA ("Obamacare," right?) particularly would help him here. Would losing his job mean losing his insurance? Why not just move him not just from dealing with this one publication (which is reportedly the next step, though unclear how that will work if his job overlaps) but in a role that just doesn't deal with the press directly.

I do think, though it was not touched upon in JP's reply, that his health issues might have had an influence on the response. Either way, what happened is serious. We need to draw lines here, especially since in the past (maybe still) Biden himself has been looked upon by some as of questionable on proper treatment of women. I noted that I thought the temptation to get a certain baseball player too often ignored his problems. Sometimes, there will be pushback "it doesn't matter" or "hey, we did something."

The #MeToo Era among other things underlines that sometimes that sentiment is not enough. Yes, we should act reasonably, factoring in humanity. But, lines should be drawn. I'm unsure if things went far enough here. The whole thing is more complicated with the health issues than normally the case.

Update: He resigned. I think that is appropriate. We had a few weeks of basically no drama, so we were due for something. The health issue probably made things a bit more complicated. But, Biden put in a high standard. And, the person crossed the line. His involvement with a reporter alone probably was likely to cause problems given life these days. People with some insight in line drawing of that nature have flagged the issue.

Impeachment 2 Continues: Prosecution Merits

The impeachment managers the last couple days provided their merits presentation. The jurisdiction (no impeachment after he leaves office!) question was allegedly settled.

Some Republicans rather it not be, particularly since it allows them to avoid the merits. They realistically have the power to decide on those grounds. And, ignore the very good presentation that showed Trump's incitement was long coming, it was particularly in place on 1/6 and once they started, Trump didn't do anything but if anything keep it up. Early on, the Georgia call was cited and I hope they bring it up again.

This is so that even the Belknap "precedent" helps them even less than some might think. The debate there was not really that he resigned and thus the trial occurred afterwards. No. According to that historical account, the debate is that he resigned before the House could even impeach. Trump was impeached while in office. The precedent there was broad -- you can impeach for official conduct, even if the person no longer was in office. Two senators broadly provided their views:

Norwood argued from history and precedent that the impeachment process was remedial. The purpose of the constitutional clauses providing for impeachment were not simply to remove a person from office but to purify government, prevent future crimes and give warning to those who would attempt crimes. Stevenson claimed that under the interpretation of those who denied the Senate’s jurisdiction, government could become a carousel of corruption and criminality. The corrupt could dismount from office as necessary and remount when the time was opportune.

(Talking broadly that era's history, Women’s War: Fighting and Surviving the American Civil War, was interesting. It was basically three case studies -- war crimes for women, dealing with slave women by attaching their freedom to male slaves' wartime service and post-war struggles of white women via a case study.)

Talk is that the Trump side wants to use a fraction of their time and manage to finish their merits argument before one of their chief lawyers (the one that didn't ramble on the first day) has to step aside for Jewish Sabbath. They will apparently focus mostly on b.s. procedural issues. Then, you will have Q&A and wrap-up, unless the managers want witnesses. Chuck Schumer earlier suggested the Democrats in the Senate rather them not, but not says it is up to the managers. Again, witnesses can be good, but who? Let's see how it goes on Friday etc. first.

Again, the various impeachment managers -- each in their own fashion -- did a good job. Only near the end did it seem a bit low energy. I was worried that they would go too narrow -- focus too much just on 1/6 -- but they opened things up some. I think they should have did that more last time. If Republicans were going to vote to acquit, bring up how the Ukraine phone call wasn't out of nowhere, it was a result of a pattern back to the Mueller Report stuff. Oh well. Schiff ended earlier February 2020 with a warning.

Deja vu.