Choices Choices Choices!

Legal Tidbits: Judge Alito's past involvement with a conservative organization against women in universities that Bill Frist felt a bridge too far in the 1970s (though not open to comment today) is discussed here. An interesting essay on the true breadth of pardons, including all the factors that should be considered, is found here.

Slate recently had an article, which I did not read (but another one like it was in a past issue) wondering if we have too many choices. For instance, it has been noted that the new Medicare Drug Benefit is just too darn confusing in part because there are so many plans to pick from. We just do not have the time or ability to figure out what one of so many options to pick from. Thus, our choices tend to be somewhat arbitrary, and people are overwhelmed in the process.

The number of choices can be misleading -- we have a lot of dreck out there as I discover when I want to find something to watch before going to sleep. Likewise, there are surely many candidates out there, few often are that promising in the "I want these people to govern me" sort of way. But, surely, choice is a good thing in many ways. It is what freedom and plenty is all about! Surely. I like shopping in those big supermarkets, not only because they give me more vegetarian choices. Choice can be good.

And, at least in certain situations, it allows one to specialize and be choosey. Take take out Chinese. One thing that is quite prevalent in my area is take out Chinese places (few actual restaurants -- one that the family liked actually closed down a year or so ago). I even have one at the corner. But, being something of a fussy sort (I guess), they are not all created equal. For one thing, they do not all have certain foods I like, and do not all make it the same way. Also, and the one nearest to me also has this problem, some have customer service issues. So, there are fewer places than first meets the eye.

But, choice can run riot. It's one reason why we don't have a million and one parties, or at least, why only two mainly control things. It's also why if we do have so many choices, there must be ways to classify them in such a way to ease final decisionmaking. Take tv shows -- I know there are now and again movies and such on the tube that I want to see but do not since I do not go through all the darn shows that are on. It's like finding a needle in a haystack. But, highlights, breakdowns by type, and first shown on t.v. listings help. Only up to a point, but still.

For instance, as to health care -- some sort of easy to read grid, helpful customer service availability, and "favored plan" listings might help. But, still, so would simplified plans ... as one writer noted, one reason against privatized Social Security is that we just do not want one more thing to have to worry about. Choices can overwhelm.

Closing Note: Is the increase in the number of debt management advertisements some sort of leading indicator? If nothing else, they are annoying me. One reason is the inherent falsity: a major problem with debt often is the inability to pay. All this talk of ending debt is nice, but moving it around (not free of charge, of course) is pointless if one does not have a means to pay.

I also do not like those drug ads and those pretentious IBM commercials, which seem to dominate Sunday football ad blocks, but that's another issue.

Misplaced Spleen

And Also: James Fallows was on Al Franken today talking about how hard it is to create/train a new Iraqi Army. He has a new Atlantic Monthly piece. My sentiment was "why in the heck is this our job?" But, then, I remembered ... you break it, you own it ... or have to replace it. Grr.

Many of the military’s most senior generals are deeply frustrated, but they say nothing in public, because they don’t want to jeopardize their careers. ... One person with whom the Pentagon’s top commanders have shared their private views for decades is Representative John Murtha, of Pennsylvania, the senior Democrat on the House Defense Appropriations Subcommittee.

-- Sy Hersh

Various people have suggested Rep. Murtha is doing a Cyrano de Bergerac in respect to his pullout proposal. This suggests all the blowhards who suggest he is some kind of turncoat or something are basically calling top commanders such names. For instance, the political cartoon portraying him as a turkey ...

By the way, Charlie Brown had better luck kicking the football than NY kickers at the end of yesterday's games. Sigh.

Judicial Calvinball

Via Slate's Today's Papers with a new link:

The NYT fronts the differences between terror suspects tried with crimes in U.S. courts and those held as "enemy combatants" and tried by the military in an attempt to discern the rules after last week's reversal in the Jose Padilla case. Their conclusion is the White House assigns (and reassigns) the status of suspects solely to shield its broad investigatory powers from scrutiny in the courts. The upshot is a judicial game of Calvinball with the DOJ standing in for the capricious 7-year-old.

I'd amend the rules, as is my right, to note that in this case "any player" [pursuant to rule 1.2] does not include any defendant. Or, rather, "declare" as to such players should be considered purely hortatory.

Anyway, my local paper has recently started to include old Calvin and Hobbes strips a la the "Peanuts Classics" deal (I caught part of the Thanksgiving Special on Thursday ... charming). As suggested by the few shown at the Calvinball link, this is a positive development.

Old Lessons

And Also: I heard some caller today suggest liberals or the left, whatever, need to choose between hating George Bush and supporting the country. Again, why is it so hard to understand that a good case can be made that they aren't mutually exclusive?

It is sometimes suggested that early on we had a "white Constitution," and perhaps in many ways we did in actuality. But, as noted by the dissents in the Dred Scott Case, this really was not true. And, not just in theory. First, Justice McLean:

In the argument, it was said that a colored citizen would not be an agreeable member of society. This is more a matter of taste than of law. Several of the States have admitted persons of color to the right of suffrage, and in this view have recognised them as citizens; and this has been done in the slave as well as the free States. On the question of citizenship, it must be admitted that we have not been very fastidious. Under the late treaty with Mexico, we have made citizens of all grades, combinations, and colors. The same was done in the admission of Louisiana and Florida. No one ever doubted, and no court ever held, that the people of these Territories did not become citizens under the treaty. They have exercised all the rights of citizens, without being naturalized under the acts of Congress.

And, Justice Curtis, in many ways a conservative:

It has been often asserted that the Constitution was made exclusively by and for the white race. It has already been shown that in five of the thirteen original States, colored persons then possessed the elective franchise, and were among those by whom the Constitution was ordained and established. If so, it is not true, in point of fact, that the Constitution was made exclusively by the white race. And that it was made exclusively for the white race is, in my opinion, not only an assumption not warranted by anything in the Constitution, but contradicted by its opening declaration, that it was ordained and established by the people of the United States, for themselves and their posterity. And as free colored persons were then citizens of at least five States, and so in every sense part of the people of the United States, they were among those for whom and whose posterity the Constitution was ordained and established.

And, both noted that "free inhabitants" and "citizens" were often used interchangeably, though Curtis expressly noted that it was up to states to decide who would be citizens. Blacks, even free ones, were the primary disfavored class of the day, though Catholics, foreigners, Mormons, and so forth had their opponents. But, it is useful to look past the prejudice and at what exactly the law and Constitution offered.

A lot more than some suggested. The theme continues to be important when dealing with the disfavored of this day. After all, habeas corpus was used to free slaves in England (see book on side panel), and its importance continues to show itself. As noted by Justice Stevens in his dissent in the Padilla case:

At stake in this case is nothing less than the essence of a free society. Even more important than the method of selecting the people's rulers and their successors is the character of the constraints imposed on the Executive by the rule of law. Unconstrained Executive detention for the purpose of investigating and preventing subversive activity is the hallmark of the Star Chamber. Access to counsel for the purpose of protecting the citizen from official mistakes and mistreatment is the hallmark of due process.

Not a new sentiment. Nor is failure to heed it.

BS

And Also: This quote (the book was so-so, but worth skimming) seems appropriate on various levels, but for application to the Padilla case with a cite of Kevin Drum and Lithwick, see here. Simply put, Padilla is troubling on both principle and pragmatic grounds, like so much of what this administration and its supporters do and promote. And, I'm sick of it all, but so it goes.

The liar still cares about the truth. The bullshitter is unburdened by such concerns. Bullshit-related phrases like bull session or talking shit also suggest a casual, careless attitude toward veracity -- a sense that the truth is totally besides the point. Bullshit distracts with exaggeration, omission, obfuscation, stock phrases, pretentious jargon, faux-folksiness, feigned ignorance, and sloganeering homilities. When Dubya speaks of freedom and liberation, and claims to be praying for peace as the army disgorges load after load of bombs, he is not lying. He is bullshitting. A lie would be easier to disprove. Bullshit is a committee-drafted simpleton's sermon about evildoers and terra and freedom being God's gift to all men.

-- Laura Penny, Your Call Is Important To Us: The Truth About Bullshit

Radio Chick Coming Back

Football: Detroit was lame again, but Denver won in OT, surviving two scores on turnovers. NY Giants in first ... for the time being. Meanwhile, the Mets got Delgado from the Marlins, a good player and a social activist of sorts. For one thing there is that anti-war thing ...

Around five years ago, I started listening to "The Radio Chick," a local radio show (NYC) inspired by Howard Stern ... but with a somewhat more feminine point of view (still, she did emphasize her "rack" ... her target audience was guys and more off color Long Island housewives). Actually, and I have a signed picture, her voice is what appealed to me -- personally, she is not quite my type, but Leslie Gold (her name) has a good radio voice. And, that is what matters on radio, personal appearances aside, right? One of her sidekicks, Chuck Nice, recently was on WE Network promoting its "Cinematherapy" feature, so she was on my mind recently.

Gold had an interesting path into radio -- she made her money in the glass business, and then went into radio. First in Boston (where she picked up her first sidekick, producer "Butchy" ... think the dad on Family Guy, who is basically his idol*), then in New York, where she was eventually let go. Still, while it lasted, Gold made 10-2 P.M. a pleasant experience (when she shifted to 6-9 A.M., she lost her charm -- it seemed like Gold was phoning it in at times, and I barely had a chance to listen).

And, then she was fired in favor of a lame syndicated program [they had their moments, and actually was pretty reassuring when 9/11 struck ... I would have liked to see her take, which probably would have been jingoistic], eventually going to satellite radio. I saw though that she will be back (1/06), in fact in the afternoon drive slot of the station where her idol Howard Stern current resides (and will soon leave for satellite).

Don't know if I will be able to hear you, or how much, but good luck. And, welcome back.

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* To further a trend/whine, this is just one more show that is not good any more. Still, Related had another pretty good episode (dealing with the future stepmother's long lost son), though the show has its "too precious" moments. But, why was the Thanksgiving episode on LAST WEEK? It is not like this week's episode was a repeat -- it was not, and in fact referenced the Thanksgiving episode. Thus, the show was actually ahead of the calendar. Anyway, the tendency of t.v. shows having holiday episodes weeks before the holiday is one of my many pet peeves.

Scalia v. Franken, Both Wrong

Thanksgiving: Have a Happy Thanksgiving all. I shall being seeing the family, which is always such a fun experience, while not eating turkey. Off years, a rump part of the family goes out to eat, which works for me personally. I did find a nice looking bottle of raspberry apple cider with added bite -- so I have my gift. Oh, Go Denver!

Justice Scalia, publicity hound, was out again promoting the true faith. For instance, chuckle, he noted that Bush v. Gore was basically Gore's fault [Bush brought the case], that the Supreme Court basically was forced to take the case [four justices who wanted to deny cert. thought otherwise], and anyway, Bush won the recount [the matter is an open question, and besides, that was not really the point]. So, I hate to even partially defend the guy, but Al Franken (who was at the event and sparred with him a bit) two days in a row on his show was a bit too full of himself for me to do otherwise.

Anyway, I do not like when either side uses twisted reasoning, especially respecting controversial matters. In fact, that is a major reason why such matters boggle down to people talking past each other, each doing so by promoting only part of the facts of the case. And, such was the case here -- Franken on his show noted that Scalia told him that abortion was always illegal up to Roe v. Wade, and Franken noted this was why Scalia is against the decision. In other words, Scalia supports an originalist point of view, and is beholden to the state of abortion law when the Constitution was ratified.

But, says Franken, abortion was not illegal when the Constitution was ratified. It was only made so in the early and mid-1800s, and only after around the fourth month (quickening -- when movement is felt). Actually, that was the state of the law under English common law -- when abortion was made illegal, it tended to be done across the board in part because of advancements of understanding of embryo/fetal development as well as fear of the danger of the procedure overall. At any rate, Franken cheekily added that we shouldn't worry about Alito -- original understanding would protect abortion rights, and assumingly Alito supports it like Scalia does. After all, (I'd add) he's "Scalito," right?

Two problems. (1) Roe arose from securities of the Fourteenth Amendment, which was ratified after abortion was made illegal -- Justice Rehnquist in dissent made sure to underline the point, and Scalia did later on. So, if anything, Scalia was only half-wrong, and on a point that does not hurt his cause too much. True, the back-up argument in Roe (voiced in the lower court) was the Ninth Amendment, which was ratified back in the 18th Century, but again as applied to the states it works hand in hand with the Fourteenth (see, Justice Goldberg's Griswold concurrence). (2) Scalia also argues that the Constitution as such does not say anything about abortion. Thus, it does not matter if it was legal in 1788, any more than it matters that selling pot/hemp was.

But, attacking strawman versions of your opponent is nothing new. Heck, I'm sure I was guilty of doing it. I am a bit less cocky about it than Al Franken though. We all have our shtick, I guess.

Mining, Padilla, Alito

Football: The Jets had a shutout for the first time in ten years while also using three quarterbacks (that makes five), while the Giants won a game they had to against the "how the mighty have fallen" Eagles. The Jets, however, are actually favored vs. the Saints on Sunday. Don't know why -- they (like the Packers) both have two wins, but the Saints actually showed a bit of life during their loss. Oh, and enough with the spam "anonymous.com" email blog comments!

Mining claims are strange legal beasts, rooted in the frontier era of homesteading and largely unchanged by the passing of the years. In most other countries, a miner petitions the government for permission to mine on public lands.

But under the General Mining Law of 1872, which underpins the House bill, people or companies can essentially raise a hand and declare that the silver or gold or copper under the earth is theirs. The claim is then considered a legally defensible right, though since 1994 Congress has barred claims from passing to full legal ownership, a process called patenting. The House bill would end that moratorium.

-- Bill Authorizes Private Purchase of Federal Land

The article itself sort of buries these imho key two paragraphs deep inside the article -- it contrasts what we have for over a century deemed an appropriate (if "we" think of it at all) practice when "most other countries" would find it rather strange, or rather, ignoring the public interest for the private gain of a few. In fact, when the Secretary of the Interior of the Clinton Administration suggested slight raises in user fees, it is not too surprising representatives of interests that becry government subsidized welfare as such cried bloody murder. Likewise, the guy was deemed verboten as Supreme Court material.

As with the lack of universal health care, reasonable drug policies, prohibition of the death penalty, and so forth, our outlier national policies are not just seen as the "right" way of doing things, but seen by the powers that be to be not conservative enough. Something to think about while not considered how lousy the war and such is being handled. On that front, the Justice Department -- having their Fourth Circuit victory [and fearing a Supreme Court review] -- decided to actually indict Jose Padilla after over three years:

Jose Padilla, an American citizen held without charge for more than three years as an enemy combatant, has been indicted in what the federal authorities said today was a plot to "murder, kidnap and maim" people overseas. ...

The Bush administration position that it has the right to hold Mr. Padilla without formal charges as an enemy combatant, despite his citizenship, was upheld two months ago by the United States Court of Appeals for the Fourth Circuit in Richmond, which threw out a lower court ruling to the contrary. ...

Although today Mr. Gonzales described Mr. Padilla as a violent jihadist, there was no mention of the earlier "dirty bomb" accusation, which was never the subject of formal charges. Nor was there a mention in the indictment of any violence that Mr. Padilla had hoped to wreak in the United States.

The indictment actually was a new set of charges, adding Padilla to an existing criminal case in Florida against Adham Hassoun, Mohomed Youssef and Kifah Jayyousi, accused of terrorism-related crimes. Besides adding Padilla, the indictment also named a Canadian national, Kassem Daher.

I know him being held as an "enemy combatant" without a hearing and so forth is technically a separate matter, but does this indictment (something like the third reason given to why he allegedly is dangerous) not raise speedy trial concerns? Three years after all ... yes, I know, he was held in non-criminal confinement. On the other hand, if the SC actually deigned to review his case last year instead of their lame punt, it probably would have held that the detainment was improper. Anyway, glad the Justice Department found the time.

Meanwhile, I discuss Judge Alito's religious jurisprudence here, following up with some comments on a Slate article on the same subject that was posted later in the day.

White Phosphorus Piece in NYT

The he said/she said nature of journalism mixed with the ability to color a story in such a way that it misleads is suggested by a NYT article today about white phosphorus use in Falluja, which appears from my reading to be a somewhat cloudy subject. Still, the cloudy nature (though some would dispute that) is not really suggested by the beginning of the piece:

Italian public television showed a documentary renewing persistent charges that the United States had used white phosphorus rounds, incendiary munitions that the film incorrectly called chemical weapons, against Iraqis in Falluja last year. Many civilians died of burns, the report said.

This is the lede, and it rubbed me the wrong way. White phosphorus is a chemical, and it does seem to some extent at least that there is clear evidence that it was used as a weapon. In fact, the official story is what seems to be "clearly incorrect," given the first claim was that it was not used at all.

But those statements were incorrect. Firsthand accounts by American officers in two military journals note that white phosphorus munitions had been aimed directly at insurgents in Falluja to flush them out. War critics and journalists soon discovered those articles.

In the face of such evidence, the Bush administration made an embarrassing public reversal last week. Pentagon spokesmen admitted that white phosphorus had been used directly against Iraqi insurgents. "It's perfectly legitimate to use this stuff against enemy combatants," Colonel Venable said Friday.

It was used "directly against Iraqi insurgents." In fact, as I noted briefly last week, a military publication noted as much. And, in fact in the past the Pentagon labeled Iraqi use of the substance as chemical:

IRAQ HAS POSSIBLY EMPLOYED PHOSPHOROUS CHEMICAL WEAPONS AGAINST THE KURDISH POPULATION IN AREAS ALONG THE IRAQI-TURKISH-IRANIAN BORDERS. [...]

IN LATE FEBRUARY 1991, FOLLOWING THE COALITION FORCES' OVERWHELMING VICTORY OVER IRAQ, KURDISH REBELS STEPPED UP THEIR STRUGGLE AGAINST IRAQI FORCES IN NORTHERN IRAQ. DURING THE BRUTAL CRACKDOWN THAT FOLLOWED THE KURDISH UPRISING, IRAQI FORCES LOYAL TO PRESIDENT SADDAM ((HUSSEIN)) MAY HAVE POSSIBLY USED WHITE PHOSPHOROUS (WP) CHEMICAL WEAPONS AGAINST KURDISH REBELS AND THE POPULACE IN ERBIL

Though the NYT article suggested the changing nature of the official story, it did not discuss such matters. In fact, following the lede that forthrightly accused the private group of being wrong, it used a he said/she said approach that again put the onus on the Italians (second paragraph):

The half-hour film was riddled with errors and exaggerations, according to United States officials and independent military experts. But the State Department and Pentagon have so bungled their response - making and then withdrawing incorrect statements about what American troops really did when they fought a pitched battle against insurgents in the rebellious city - that the charges have produced dozens of stories in the foreign news media and on Web sites suggesting that the Americans used banned weapons and tried to cover it up.

So, it seems the problem is just public relations, though the more questioning reader (realistic reader?) would argue that the problem was that the government wanted to cover up a questionable or at best likely to be used by the other side (anti-administration as much as the enemy, though they mix the two up a lot) practice. As some replies to a criticism of the BBC noted, the government really does not have the benefit of the doubt any more. Anyway, the latter piece can be used to see the "other side" of the debate. [One issue addressed is the "noncombatants" issue.]

Back to the lede paragraph. Though I admit not to fully understand the intricacies of the matter, the problem apparently is that even though it is a chemical, WP is not really a "chemical weapon." It is an illumination device ... but, and the use of the term "shake and bake" (though also a football term) highlights the fact (no pun intended), the substance was also used as a weapon here. At best, the term "chemical weapon" is only technically inaccurate.

Thus, my concern with the lede of the article. One more he said/she said than actually informative ... and when it does make a judgment, it is a dubious one.

Update: I am listening to an interview (Friday) with long term Middle Eastern expert, Robert Fisk, and Fisk does not buy the "not a chemical weapon" line, underlining that the government cannot be trusted generally, and on this issue in particular ... so why is the U.S. press so wary of saying so?

"The Problem With an Almost-Perfect Genetic World"

The New York Times, taking a more mixed approach, addresses an issue that was emotionally approached by a mother in a Washington Post editorial that led to a lot of hits to this blog. The issue: "The Problem With an Almost-Perfect Genetic World." A taste of the article:

Some bioethicists envision a dystopia where parents who choose to forgo genetic testing are shunned, or their children are denied insurance. Parents and people with disabilities fear they may simply be more lonely. And less money may be devoted to cures and education.

"Where do you draw the line?" said Mark A. Rothstein, director of the Bioethics Institute at the University of Louisville School of Medicine. "On the one hand we have to view this as a positive in terms of preventing disability and illness. But at what point are we engaging in eugenics and not accepting the normal diversity within a population?"

The first paragraph again leaves me cold. Consider this. We have pre-conception testing now; in fact, for years, many states required (and some still do -- though I assume they open themselves up to court battles in most cases) a blood test before marriage. Why? Well, in part, to siphon off those with certain conditions that were deemed problematic in part because it could affect offspring. Since race generally cannot be determined by blood (except to the degree certain groups are more likely to have certain conditions like sickle cell anemia), these tests are not just some sort of anti-miscegenation measure. They are to put it bluntly partly a sort of eugenics measures. I am unaware, however, of them being deemed by anti-abortion groups and so forth as simply horrible measures though various disability rights groups have targeted them in recent years.

Anyway, suffice to say that pre-conception testing is only more inclusive and far reaching these days. Many, especially those who know certain conditions run in their families, are quite supportive of the practice. And, putting aside the abortion angle, this surely leads to less children with certain conditions. Those who do not test might one day be shunned, etc. But, are we to not allow them too? And, the open-ended nature of the title aside, the article does focus (wrongly) on the abortion angle, speaking at one point of some who fear it has become a "poor man's [is this not one time where the generic "man" is especially inappropriate?] gene therapy." I would add, all things being equal, the part about certain children feeling lonely is -- and their emotional well-being is not to be ridiculed surely -- a bit much. It is somewhat akin to not making possible pre-natal adjustments because the remainder who could not be helped would feel left out.

But, the questions suggested by the second paragraph are ones we must face. The article has a picture of a Downs Syndrome child. Such children cannot be batched together as if they are all alike, but it might be suffice to say many grow up to be perfectly fine adults vis-a-vis the rest of the population. This might sound snide, but truly ... if we compare their "condition" with those of "normal" people, quite often the latter group is left more lacking. And, just what does "disability" mean anyway? What of a individual with some learning disability, but without the more physical characteristics that lead Down Syndrome individuals to stand out more?

The former might in the end be as or less successful in adulthood. What about those who are physically weak in some fashion or perhaps socially awkward? Weed out the "imperfect," who do we have left? Furthermore, do we have a better pool of citizens? I find it distasteful when it seems like some people appear to support the presence of the unfortunates (for purposes of neutrality, choose some group other than the "disabled") because they somehow make us better people or something. But, especially if we draw the net widely, the "imperfects" in society quite often add something with their imperfections. Some blessings are joined with burdens -- many athletes, for instance, have various problems. They are not people who we overall might like to be around or particularly want our children to use as role models per se. But, they have certain gifts all the same. Our society would be less gifted without them to entertain and sometimes awe us.

Still, though the fears addressed by the article have some bite, we are left to our own devices. Are we not to let potential parents decide when and how to conceive? Such people make many decisions, as they have always done, that affect who would be born. For instance, mutts are often the strongest animals. Pure breds tend to be weak, especially when appearance is prized over other qualities. But, we continue to join together with our likes, and this is even more prevalent in some places outside the United States, a nation where mutts are more likely to be deemed the best option. And, it is our right to do so, even if motivated by less than ideal reasons.

The future will raise many problems. For instance, longer lives already have led to many questions, including related to health care and even life time appointments to the federal judiciary (past judges served into their eighties too ... think of Taney and Holmes ... but fewer made it that far). Imagine if we lived healthily deep into our hundreds ... if a person served as President when they were 55, should they not be able to serve again, even fifty years later? Medical and ethical problems arise as well, of course, but this does not mean better health care is the problem. The problem of when to "pull the plug" when current science can cause people to linger for years (often without apparent consciousness) suggests concerns comparable to the article.

We have to face up to them, act accordingly, and not resist recognizing uncomfortable questions. And, some of the negative possibilities will be faced with new solutions (e.g., Down Syndrome is much easier to deal with than it once was -- further discoveries will make it easier). Our society brings with it a certain mindset and set of mores that we have discovered fit our needs more than they do not. No system is perfect though so problems do arise. The article therefore is sound in touching upon them, including our distaste in facing up. Most telling perhaps is the statement that "advocates for people with disabilities are troubled by how much faster the science of prenatal testing is advancing than the public discussion of how it ought to be used."

Sure enough. Let the discussion go on, but let's not kid ourselves and think the problems it raises are somehow new or likely to be solved to everyone's liking any time soon.

Nyotaimori

"Nyotaimori" is basically the concept of eating food off a naked woman; it basically translates into "female body presentation." The Chicago region restaurant, where the service can be obtained for around $500, suggests it is not just an Asian practice. The restaurant is apparently looking into obtaining a male subject.

Fair is fair, right? Don't worry -- she's not totally nude. Some well placed strips of food cover certain senstive areas.

Georgia ID Law and Executive Politics

Sports: The Mets let outfielder Mike Cameron go for an extra part (back-up first baseman/outfielder), which struck some as silly, since Cameron was a useful chip to have. But, it did free up about five million, and perhaps with his strikeouts and lingering questions as to how serious that collision last summer affected him, Cameron is not worth as much as some think. Let's see what other moves the Mets make ... or even if Mike passes his physical! Also, Marlon Anderson -- who was a great pinch hitter early in the year but did cool down -- has gone to the Expos. He was a nice role player with some exciting moments, but was surely not indispensable.

As suggested by the anti-Bush cottage injury of books, there is a lot to be upset about in the Bush Administration. This underlines a troubling matter that is furthered by our system of government -- the executive department is a central aspect of the government, not just its head (the President), but the voting public often concerns itself more with the personality of its head. Thus, people who in various ways oppose the ideology and so forth that would be furthered by the election of a President will vote for the person anyway because they like the cut of his jib. Of course, those who do support his ideology are willing to vote for subpar leaders to keep the other side out of power.

All the same, especially since much of what the executive department does is fairly neutral traditionally speaking, people do not focus on the matter as much as they probably should. But, repeated evidence has shown that this administration is especially partisan and downright crooked even vis-à-vis others historically speaking. Important parts of the public, including those who focus on this sort of thing, continue to refuse to admit the fact. Facts do not matter to such people, apparently, partly because of deeply held beliefs the other side poisons the system as well, or that at worse it is just "same old same old." This is annoying, to put it nicely, since it simply is not true. But, so it goes.

Any number of examples can be shown, and many blogs keep a running count of them. They do not simply apply to the war and foreign policy, science policy, tax policy, but applies to any number of subjects. The number of targets suggests the ability to specialize, target one particular class of problems, and you still wind up having pretty damning examples. For instance, lately we heard of the politicization of the birth control approval process, pre-war intel, Jack Abramoff's involvement in the Dept. of the Interior, and the whole Harriet Miers mess. Another pretty damning one is the strange preclearance of a Georgia ID card law even though at least four of five members of the Department of Justice review team suggested otherwise.

This calls to mind the 23-4 vote in support of the "morning after pill" that was ignored with the additional matter that at least two amendments are directly involved (Fifteenth and Twenty-Fourth, discrimination by race and poll taxes, respectively) while the former measure is a bit less directly involved with the constitutional rights.* Likewise, various situations arose where accepted scientific knowledge was rejected for clearly political reasons, including in respect to global warning (see, e.g., The Republican War On Science).

Anyway, the picture id measure has been blocked by a district judge as unnecessary and having clear discriminatory effect. This is why the review panel opposed it. It would be presumptuous, I guess, to say that is also why the DOJ eventually precleared it. [The fact that it tends to generally affect those who vote Democrat might.] But, why should it surprise people to assume as much? Politics and ideology surely factor into executive administrative decisions, but as with everything else, this administration seems to do things much more blatantly than those in the past. A government not for the people, but for the rulers.

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* [Extended Aside] It was suggested to me that the Thirteenth Amendment is a better way to defend one's right to abortion and control of fertility, since privacy rights are less absolute. I admit "privacy" is a bit nebulous, though that does not stop people from using the more open-ended concepts of "liberty" (from the Due Process Clause) or the Ninth Amendment to promote similar ends. Nonetheless, as used in case law and otherwise, it includes control of certain private areas -- including one's own body. Bodily integrity, etc.

Anyway, the control of one's own body is not absolute either -- as with jury duty, militia service, road work, immunization, and so forth, a pregnant woman can be limited somewhat by the state in complete control over one's body, even if they have not committed a crime. But, I'm all for a mosaic approach -- many constitutional provisions for the same ends. "Privacy" is one way to join them together, and reading Justice Douglas' writings on the subject (see, e.g., The Right of the People), it is not a bad way at that.

I'd add that another person referenced the 14th Amendment as showing that only post-natal "persons" (those born) are persons under the federal Constitution. But, it does not really say this -- it says that being born or naturalized is the path to becoming a "citizen." The use of "person" in the Constitution does in various cases suggest postnatal attachment.

Nonetheless, if for some reason a child could not be born, but developed after nine months a la a "joey" (baby kangaroo), it is unclear if said child would not be a "person." Likewise, arguably, non-persons can have such rights against persons in certain situations, such as animals who by law have a "right" (if one wants to phrase it thusly) not to be tortured. This helps pro-life groups only so much, of course, since even persons can be harmed to secure one's health and well-being.

Breeding Distrust and Hate

And Also: I am not with all these legislators who are getting on the "bank fees are criminal" bandwagon, especially since getting charged a $1.50 to use another banks' ATM machine seems to me perfectly fine. A few fees probably are misleading, but the whole ATM fee deal is a bit silly. Anyway, sometimes I lazily pay the extra buck or so since the nearest banks are not my own. I resisted last week, but was short .25 for a movie ticket. I walked a few blocks trying to find a branch, and darn if I found a quarter. Little annoyances make life tiresome ... little shots of luck, charming.

House Joins In: The House of Representatives' reprehensive political move to split the Democrats by putting for a bastardization of Rep. Murtha's (long term war hawk and veteran basically called a coward by the hack who just won the recess election in Ohio) proposal to pull out from Iraq. Per the LAT:

Murtha's resolution Thursday called for a rapid "reaction force" to remain in the region and for diplomacy to be accelerated to achieve stability in Iraq. He also said the withdrawal should begin only when it could be accomplished safely. ... The measure Hunter introduced said simply that "the sense of the House" was that troop deployment in Iraq should be "terminated immediately."

Thus, even Murtha voted against the nonbinding resolution, and only three people voted for the darn thing. Rep. Hunter was the one who said the detainees in Gitmo have gourmet fare. So you know his mentality. Shill in chief had this to say:

White House Press Secretary Scott McClellan, in South Korea where President Bush was attending a Pacific Rim trade meeting, said in a statement that Congress had "in strong, bipartisan fashion rejected the call to cut and run."

No shame at all, hmm? After (or as) the bid failed, the House Republicans were all supportive of Murtha. Disgusting display.

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President Bush in a public statement boiled things down pretty well: criticism/disagreement is okay but deliberately misleading the American public is not. Of course, he claimed the Democrats was doing the latter by accusing him of it, but that still hits the nail on the head: let's put aside the tiredly debated "lie" word and use the more "no doubt" word "mislead." Ah, how the word's multi-meanings so easily apply here. The immediate concern was shown by Clinton's counterattack (yeah, you're welcome for my disaster work, George) respecting the use of the Clinton Administration's words against the Democrats now. Yes, Saddam was dangerous (more so in the late 1990s) ... no, war was not the solution. This sort of thing is like saying my rumblings that Bush is a lousy president, a danger, and maybe impeachment worthy means I want him removed by any means necessary. You know, if one wants to use cheap tactics and wrongful syllogisms.

I put aside that Bush is not really serious about criticism being acceptable. I want to connect this to another matter. Mike Malloy is the evening (10-1) host of Air America, someone's whose hatred of George Bush ("the Bush crime family," the "cackling killer" etc.) makes my distaste for the man look like being a member of his fan club. Malloy's rantings, surely understandable given his subject, do get tiring after awhile, including his "there is nothing acceptable about these people" line. It's like if one wants to say he is not the spawn of Satan, you are part of the problem. Malloy also raises now and again the idea (put aside the hows and implications) that Bush was somehow behind 9/11.

He referenced recently, later admitting the guy is a bit of a kook, someone who was on Tucker Carlson's show. The guy is some professor from Brigham Young University (an atheist sort, why Malloy would trust someone from a religious institution founded on the belief that the lost tribes of Israel came to America and left sacred tablets here is unclear) and argues the towers fell because of charges places inside ... the planes were a sort of diversion. The terrorists apparently patsies ("it looks like maybe the Muslims weren't to blame" ... but they had to be in on it somehow, right? I know ... logic is silly in this context), or something (my local paper derided giving the guy a forum, but since people believe this stuff, it's good to air it out ... though Carlson is not the best way to do it, perhaps).

I hate this sort of crap, but you know what, if your government lies and misleads you, it breeds. So, who are we to blame? Hint: largely the people who we expect more from ... see my Murrow quote from a few posts ago. This is why Malloy "hates these people," and why I see why. It is not just a simple ideological difference, though ideology does factor in to their nihilism. It is the simple fraud of the whole thing -- another one of my pet peeves. Philosophical differences, even those based on what I believe as wrong premises, is one thing. This is quite another. This is why I do not respect conservative and other sorts who do not see the rot here -- the enemy of your enemy is not necessarily your friend. If that is your baseline, do not talk to me about morals and ethics. You have none. And, if that isn't important to you, we are truly in separate universes.

But, the Frists, DeLays, Reeds (Ralph Reed ... when the epistles spoke of false prophets, they had him in mind), and the rest are not the only problem. The other problem, though some (Lindsey Graham's disgusting move aside) are starting to see the light ever so slowly, is that too many are staying silent or too quiet. This is why "Republicans" (include Lieberman and his fellow travelers, if you like) as a whole are targeted as a class by the critics. A habeas stripping move ... no matter how many reports of abuse and torture is released ... is supported by nearly all the Republicans, except the likes of Arlen "I still have some ethics" Specter. Have you no shame?

Rhetorical question. Anyway, is Cheney really our second in command? It was really before my time, but when one aches for the days of Spiro Agnew, we are in deep trouble.*

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* Talking about conspiracy theories, lol, one knowledgeable source suggests Graham's actions are his way of angling for Cheney's job when the gruff one retires for "health" reasons. Since promoting mistreatment is a pet issue for Cheney, this is conceivable, though Graham's habit of sounding reasonable one minute, doing something ridiculous the next is of long standing. After all, he was one of the impeachment managers -- even if he opposed one of the "lesser" charges.

Update

And Also: It is notable that many state constitutions tend to have long preambles describing the purpose behind various provisions. These preambles are useful when one is trying to determine what the provisions were meant to cover. Putting aside the Copyright/Patent Clause and Second Amendment, this is not the case for the federal Constitution, perhaps because even more so than in state conventions, so many points of view were in play. One more reason to look askance at strict application of "original understanding."

So it looks like the November 14th deadline Bill Frist set for a plan to pursue "phase two" of the senate Iraq intel investigation has come and gone. There's been progress apparently. But no resolution. No plan on looking into what happened in Doug Feith's office. And apparently no agreement from the majority as to whether the committee will actually be able to interview any of the key people in the administration. Roberts, Frist and Co. are still stonewalling for the White House.

-- Talking Points Memo

More on Drum

In respect to Kevin Drum's statement cited last time, Rep. Udall (D-CO) was on the Al Franken Show today and defended his vote against the vote in 10/02, a vote that Franken supported at the time. Franken felt that a congressional threat of force was necessary to pressure the U.N. to agree to real inspections, inspections of Iraq with teeth. The fear was that it was just a ruse ... as it basically turned out to be -- but Udall had an alternative: require a second vote. Now, the President (and Prime Minister Blair) assured us that there would be a second U.N. vote before the war. This never occurred and appears to be a violation of the U.N. provisions allegedly authorizing our efforts. Put that aside ... there also was a constitutional concern involved.

Foolish consistency is not a good idea, but reasonable consistency generally is sound advice. And, I have been reasonably consistent on this point: the problem with the vote, or rather a problem, was that it did not expressly demand the President come back to Congress if and when it was determined that war was necessary. The laughable requirement was that he let the leadership know that in his view that force was necessary. The facts on the ground, and Sen. Kerry was not alone in saying this, did not compel the use of force in 3/03. An argument, reasonable if not compelling (my test), could have been made anyway. But, not the one rose the previous October, no matter how much our liar in chief demands otherwise.

But, Kerry does not get a reprieve even as much as Sen. Edwards (who now said his support was a mistake -- 20/20 hindsight and all), the latter party more gung ho about the whole invasion thing.* Kerry could have and should have demanded that second vote. The Constitution did. His supporters try to skirt this, but they should not really be taken too seriously.

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* Among the War Democrats (one thinks of the War Hawks back in 1812), we had Sen. Lieberman, who has shown himself to be his frequent turncoat self yet again. Forty senators -- nearly all Democrat -- supported a non-binding resolution on Iraq policy. Guess who was among the few who did not? You guessed it, one included one of the handful of Dems who supported Lindsey Graham's habeas stripping bill.

On that front, the new provision (and this one might not even make it out of conference) still would deny habeas to those waiting enemy combatant status (quite a few) as well as many who were so labeled but still have many reasonable claims to make. OTOH, even experts aren't quite clear on what the provision would mean -- but, darn if they want to rush it out anyway.

Exploiting Fear

And Also: I see that the 108yd return was by the Bears in part thanks to some wicked winds over there that earlier also led to a missed field goal. You'd think a 52yd field goal would suggest enough personnel mid-field to stop such a long return. But, who thinks about such a return anyway?! Besides, SF is not exactly a great team anyway though decent defense.

There's no reason we should have to guess about this. If the president wants to go to war, he should get a declaration of war. Not an "authorization of force" six months before the fact, but a declaration of war a few days before the invasion. Not only is that what the constitution requires, but it also means that members of Congress can no longer play games about what their vote really meant. After all, a declaration of war can hardly be misinterpreted.

- Kevin Drum

Exactly ... but, we again will gloss over this fact, even though it is an important aspect of the problem.

Anyway, I found a quote by Edward R. Murrow that is appropriate to the President's Veteran Day's speech as well as all his minions who are going back on attack by continuing the lie that they (the Democrats, liberals, war critics, the Easter Bunny, etc.) are the problem, even though, uh yeah, "we" (but hey, everyone agreed with us! so this means you too! ... not really true, even without taking into consideration that incomplete materials shown to Congress) were wrong about WMDs. This in part includes critics (on torture etc.) like Andrew Sullivan who continue to deny that "lie" is the right word -- but starting to struggle with the proper wordplay to explain why. At any rate ...

We cannot defend freedom abroad by deserting it at home. The actions of the junior Senator from Wisconsin have caused alarm and dismay amongst our allies abroad and given considerable comfort to our enemies. And whose fault is this? Not really his. He didn't create the situation of fear; he merely exploited it and rather successfully. Cassius was right: "The fault, dear Brutus, is not in our stars but in ourselves."

The junior senator of course claimed that "they" (the commies etc.) were the one who gave aid and comfort. He argued that bully tactics, exaggerations, witch hunts and simple lies were necessary for our freedom though, of course, he would not quite describe it quite that way. And, today, President Bush and his allies did not create the fear ... though it must be noted that they inflamed it and in various cases did create some of it out of mostly full cloth ("no doubt" evidence regarding Iraq).

And, surely those who do this sort of thing are to blame more than those who accept it, including the press and government officials, without the right amount of caution and cynicism. In fact, in the process, being accessories to the crime. Nonetheless, the fault must in part -- especially in a republic like ours -- be so placed. This is in part because "ourselves" is more likely to be saved and reformed. Clearly, Bush et. al. have no desire to do so, even as it is an ever more uphill battle to stay the course.

Some hang on though. For instance, one person told me that non-citizens do not have any constitutional claims against our government, though the government might be "generous" and supply some rights to these individuals. This is after I noted that what is at stake is torture and mistreatment. Such generosity! Twenty million people are in this country who are non-citizens, and many people still would not find the claim of this individual to be too outrageous.

"Our stars" ache for such material, don't they?

Sunday Thoughts

Football: The NY Giants leads the NFC East, but the leadership is a bit more questionable than some fans would like to think. Thus, it was not a shock that it lost its home game today vs. the Vikings, even with the latter's team's wretched away record. It is somewhat shocking how it was done -- three true offensive points (like against the Packers, their last play of the game ... this time with :10 left), two special teams touchdowns, and one defensive touchdown with over ninety yards to run. A failed field goal brought a 108yd return today, but that was pretty impressive.

The Giants defense (and even their impressive kicker, who decided to miss a nearly gimmee today ... the deciding points) was great ... not on special teams, true ... except for the final drive with under eighty seconds to play. And, then they went all conservative, choking when it counted. But, I want to know why the Giants (who were able to start at their own 40 because the kickoff went out of bounds) did not try a deep pass to get into field goal range. There was time for two shots at it (sideline passes) ... instead they went to the middle of the field with a short pass. And, the announcers -- who even suggested the strategy -- did not comment on why it was not done. Just went to commercial -- have dinner reservations, did you?

[Update: The Giants coach argued that a pass would have still left too long of a field goal. This assumed a twenty yard pass (c. 55yd. figgie), but a twenty five yard pass from the Giants 40 would result in a makeable (especially given the Giants kicker is pretty good) 50 or so yarder. Surely a longshot, but less of one than hoping for a hook and lateral approach that quickly died. And, with ten seconds, there was time to try a quick toss AND the desperation h/l. So, no, still stupid. btw the Eagles collapsed late, so Dallas is in First given their OT win over the Giants.]

Tampa Bay went for the win, the two point conversion, and it held up: the Redskins lost. Now, it's up to the TO-less Eagles to win after losing twice in a row, and the Giants' will not lose anything in the standings. If not, the Dallas/Giants match-up will be even more important. The Jets ... with yet another injured player ... actually kept it close until the Fourth Quarter.

Reading: Anyway ... Judgment In Berlin (later a Martin Sheen film) is an exciting and intriguing legal procedural in Cold War West Berlin (late 1970s) involving hijackers who were tried by a special U.S. court in West Berlin because the West Germans did not wish to prosecute someone escaping from East Germany. But, darn if the American judge decided the defendants had constitutional rights (applicable to "persons," right?), including the right of a jury trial! A jury made up of West Germans whose own country did not do juries.

A bit melodramatic, but the author was not known for this sort of thing. You see, this actually happened, and the author is the judge himself. Good story -- the judge (Herbert Stern) laid things a bit thick though, including how his independence (or refusal to accept limitations on his judgment, even though he was for the purposes of the case an Art. II judge) was so fundamental, so American. True, but still, you laid it on too thick, Judge.

Film: I referenced a movie a couple posts ago. I saw Q [Quetzlcoatl, an Aztec winged serpent], a movie that I first read about years back, but never had a chance to see because it was never in the rental stores (presumably it was somewhere, but none I went to). It also wasn't so must see that I planned to purchase the darn thing. Anyway, it sounded like a fun horror movie, and perfect late night fare (B-flick, not Oscar contender worthy, but perfectly enjoyable) ... plus it had Michael Moriarty, playing his lovable loser sort of role that he handled repeatedly before becoming the first assistant d.a. on Law & Order.

Turned out to be stupid, starting with the police, who do all too often act like idiots in films like these. Well, it was on t.v., so no big loss.

Cat v. Mouse

Our President Shames The Country On Veteran's Day: What did the commander-in-chief of the armed forces and militia when in federal service do on Veteran's Day to honor the memories of those who served their country in this special way? Oh, just some tired partisan attacks and continuation of his misleading defenses of his administration (and those members of Congress who went along and assisted) respecting the war. You know, a disgusting move on a day when the only focus should be on veterans. Veterans have from time immemorial served lousy leaders -- theirs is not to question why etc. More of the same, I guess.

Fury [a cat] said to a mouse, That he met in the house, "Let us both go to law: I will prosecute you. - Come, I'll take no denial; We must have a trial: For really this morning I've nothing to do." Said the mouse to the cur, "Such a trial, dear Sir, With no jury or judge, would be wasting our breath." "I'll be judge, I'll be jury," Said cunning old Fury: "I'll try the whole cause, and condemn you to death."

-- Alice in Wonderland

The Senate, surely to be followed by the House, has passed an amendment put forth by Sen. Graham (who is on record opposing torture and unlimited executive discretion) that would slash the rights of detainees in Guantanamo and elsewhere to challenge their confinement, including their treatment there.

The Supreme Court has determined the detainees have a statutory right of habeas corpus -- their constitutional right to do so (protecting them from such court stripping) is a question pending. Citizens clearly have a constitutional right though Congress can suspend it "when in Cases of Rebellion or Invasion the public safety may require it." The clause does not differentiate between citizens and other "persons" in our government's hands (we cannot enslave Mexican illegals, right?), but there is some precedent suggesting non-citizens in this situation do not have a constitutional right to challenge their detention. The question will be dealt with in the courts -- eventually -- unless this court stripping move throws a wrench into the works.

But, they are our enemies, right? Well, maybe Justice Kennedy in his concurring opinion in Rasul v. Bush said it best:

First, Guantanamo Bay is in every practical respect a United States territory, and it is one far removed from any hostilities. ... The second critical set of facts is that the detainees at Guantanamo Bay are being held indefinitely, and without benefit of any legal proceeding to determine their status. ... [referencing a past case involving claimants whose "enemy combatant" status was already determined] Having already been subject to procedures establishing their status, they could not justify "a limited opening of our courts" to show that they were "of friendly personal disposition" and not enemy aliens. Indefinite detention without trial or other proceeding presents altogether different considerations. It allows friends and foes alike to remain in detention. It suggests a weaker case of military necessity and much greater alignment with the traditional function of habeas corpus. Perhaps, where detainees are taken from a zone of hostilities, detention without proceedings or trial would be justified by military necessity for a matter of weeks; but as the period of detention stretches from months to years, the case for continued detention to meet military exigencies becomes weaker.

In other words, no -- many of these people are innocent. Many detainees already have been released. And, they are not really the same as other detainees that in the past were not given habeas rights. But, they are making trivial claims! For instance (the blog has several posts discussing the amendment ... check them out):

a Afghan juvenile with a history of mental illness. During the war in Afghanistan, he was ordered to stop (in English); he does not speak English, kept walking, and was shot in the top of his right thigh bone. He was operated on, but was not told that his bone had been broken, or that a bolt had been implanted in it. At Bagram, he was forced to walk every day for three months; "He cried and screamed from pain until he would collapse unconscious." (p. 9) He was then taken to Guantanamo; on his arrival, he could not walk, having been strapped very tightly in the plane. He was ordered to sit cross-legged with his head touching the floor, and screamed and passed out. He was sent to isolation.

It's a good thing "competent tribunals" (not that Bush and company wanted even that) determines people like him are detained properly, huh? Well ...

Prof. Cole* cites a philosopher who reminds us that "The alien was to be protected not because he was a member of one's family, clan, or religious community, but because he was a human being. In the alien, therefore, man discovered the idea of humanity," a command with biblical roots (he was Jewish -- but, then, we all were aliens right? we live in a nation of immigrants). This seems to some as too much ... a demand that everyone, U.S. citizen or not, be given a panoply of rights. But, the right against mistreatment respecting those we detain, many of whom should not even be detained at all, is quite a narrow application of the principle.

I'm not sure why most Senate Republicans and a sad handful of Democrats (mostly the usual suspects and one lame duck) cannot understand the point. It's nice they voted against torture and all -- but the right is an empty one when we have to trust the cat to judge the mouse all by his lonesome. Hopefully, enough will see the problem when the matter is up again later in the week.

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* His book Enemy Aliens is recommended.

Pride and Prejudice

For various reasons, I have not been in the mood to see the movies that are were available to see ... I can read about Walmart -- lots of stuff -- online and even hear it there (as well on the radio). So, no, don't want to see that documentary. Don't want to see an Iraqi war movie. Nor, a chick flick with Cameron Diaz. Or, partly do to Slate not quite liking the history, partly since I'm tired of the unpatriotic anti-American sorts currently in power that cry "unAmerican" (I see Bush had a speech and everything defending his program vs. critics -- yeah, whatever ... honor thy veterans by having better leadership!), don't want to see a movie McCarthy. Nor, a cartoon -- The Corpse Bride was great though. And, so forth.

One alternative was renting. But, I'm fussy, I guess ... and the one movie I did want to see at the local rental place was never in (one copy, unlike for lots of lousy ones). I now remember that I have to tape an old thriller that is finally on television -- late night, so it's not too late. But, still, nothing like going to the movies itself. No, even the independents and foreigns don't seem great. Oh, I saw Sarah Silverman live, so why watch her concert film? Cute though ... some mouth on her, huh?

So, risked Pride and Prejudice. Not that BIG of a fan of Jane Austen or anything, but a good period love story sometimes appeals. Anyway, Clueless was a good takeoff of one of her novels, right? And, this version of the original has received good reviews. Not my first choice ... but there was not many choices anyway. Suffice to say, it was worth seeing with a few caveats. I'd add, somewhat amusingly, that soon enough I recalled that saw the Bollywood takeoff of the film (pretty loyal) earlier this year -- Bride and Prejudice. Sorta of a modern day version with songs and a bit more sexual connotations.

One thing that made the film version (apparently compared by fans to the PBS miniseries as if one can fairly do so) somewhat lacking in my eyes is the thin nature of the story. I guess this is partly Austen, partly the need to narrow her verbose text to fit the running time. But, the plot is basically rather simple and in large part based on misunderstandings (but, ah ... that's where the "pride and prejudice" comes in, huh?) that are pretty simple plot devices. People who find this sort of thing rather silly will love this film because of what surrounds them. Still, it goes to show that plot simplicity and expected results are only problems if they are not surrounded by something worthwhile.

The movie concerns a lower middle class sort of family -- Austen appears to favor those with class enough to make costume films worthwhile, but with money problems -- of five daughters closing in on marriage age. The film is realistic about their low rent surroundings though they do have money for a servant or two. The star (Keira Knightley) is a headstrong reader sort (the Jane stand-in, I guess) who clashes with Darcy, a tall silent sort that looks so darn tall (was he on his school basketball team?), but well, you know ...

The movie has some great visuals and witty moments. I liked the Bennet's home and the bare faces of the family women (no obvious make-up). And, Knightley is very good (as is Donald Sutherland, as her dad, in a small part ... a few other supporting roles were pretty good, Darcy a bit iffy). Given how beautiful she is in the film (in a non-flashy way), how can she not get her prince? Still her character's inner goodness, cheer, and intelligence shines out. My problem again was that the plot was somewhat thin -- a few complications (separating her sister from her own beloved, etc.) and so forth, but nothing serious. The Bollywood version at times seemed to have more plot (including respecting more plot devices and misunderstandings of an almost silly sort)!

Still, it was a pleasant film overall, well made/played. The thinness of the story is a bit of a negative -- warranting a bit of criticism and the film overall a bit less praise -- but like Serenity and too few films of late (imho), a nice way to spend a few hours.

State Power With A Friendly Face

And Also: BTC News outdoes itself with an extended piece on the fact that "The Bush administration and Republicans in general have made national security their defining theme since 911, but as is so often the case, the record belies the rhetoric." And, as reported by Mike Malloy and others, military use of white phosphorus as an "as an anti-personnel munition" is very troubling. When will a pic like this show up?

First Off: A few random legal related things. A good account of the problem with initiatives (all eight failed in CA -- will Gov. Arnold re-pay the state for the 60M?). Some good information (including a link to the quite well worth reading sermon) on the matter of a liberal church being targeted by the Bush Administration. And, some good stuff on/against the Alito Nomination, including the falsity of the "he's loyal to precedent" defense. Reports that even Sen. Schumer (D-NY) was buying the line aside.

State Sovereign Immunity With A Friendly Face: A case involving federal law protecting disabled prisoners suggests a possibility that state immunity from monetary damages (or immunity overall) when their own employees are involved can be tempered somewhat. My thought is the case will continue the recent trend of "not crazy" conservative jurisprudence in the area. To wit (as I noted on the Slate fray):

In one state sovereign immunity case, Justice Breyer wrote for an unanimous court that the state's claim was improper. But, the opinion started out by stating current precedent: state immunity does exist in various cases, even if the Constitution (esp. the 11A) does not literally say that. The case suggested the change of the law that began in real force in the mid-90s had become standardized.

This is true in as the edges are made less pointy. Thus, family medical leave suits against states are upheld (gender claims are easier to make) as are access to court claims (ditto). Now, we go back to the disabled: a class that cases a few years back suggested warrant less scrutiny. States have a broader right to discriminate, since they reasonably can treat the disabled differently. Unlike sex or race (and a few other classes), a lower test is in place.

But, note that word -- "reasonable." This might not require states in all cases -- akin to private employers -- be liable for not making accommodations for the disabled. But, sometimes (though a few justices may disagree in certain cases) even the lower test is violated. This might very well include in prisons, at least when tvs [reference to Slate article linked above] aren't involved. If the federal government can have a law requiring states to reasonably respect the religion rights of prisoners, they very well might also have one in cases like the one discussed in the article.

This suggests a leveling off -- state discretion will be respected more than in the past; in fact, the rule will be standard. But, it won't be complete; there will be some balance. Conservative result, but not "crazy" conservative. Get used to it libs ... it will be your new goal.

That is, "State Power With A Friendly Face." Talking about states ...

I wondered about that: "Corzine will have the power to appoint his Senate successor once he is inaugurated as New Jersey's chief executive on Jan. 17." Wouldn't it be in better taste to resign as senator before becoming governor (if this is possible?) and not have such power? But, then the governor's race was not known for its taste.

The Wacky World Of Sports ... Former Patriot Super Bowl Competition Edition

Gilmore Girls Decline Watch: The fact that a Jess -- former GG bad boy -- appearance actually was a bit of fresh air on the Gilmore Girls suggests the show has yet (imho) to find its way. Apparently, the breach between mom/daughter will end next week -- but new downer news seems to be on the horizon. It's good that Jess is doing well though -- if only his more mature status was not systematic of the show itself -- too serious, no longer light and friendly. Oh, and what happened to Rory's community service? If we are going to have to deal with "serious episodes," maybe Rory infractions can merit a bit more difficulty. Consider the lack of much (if any) community reaction to her having an affair with her (married) ex-boyfriend. Talking about bad behavior, somewhat including sexual themes ...

TO (Totally Over) of (technically) the Philadelphia Eagles is a grand talent who received a long term contract in his early 30s of the tune of a shade under $50 Mil. Of course, he was not happy -- sure he was on a quality team with a quality QB that should have some good years left in him, but he just was not appreciated enough -- surely he could have received more money ... balloons didn't fall when he made a milestone catch ... his QB is human and not playing on the level of the head of a now 1-7 team. You know, the guy was a total crybaby.

He tried to repent. Sure did. I was reading today about his act of contrition akin to the time when a king name Henry stood in the snow for three days to get on the good graces of the clergy. Well, not quite the same. This involved a press conference in front of his home in which he (after being suspended for four games and told ala Oscar Madison never to return) apologized to everyone, saying how it was for him to admit that he not only was an ass, but shot himself there in the process (in respect to salary opportunities and so forth ... though the truly desperate might be willing to take a chance ... you know, the Jets [seriously, a local column suggested as much]). TO didn't answer questions, but his agent did, basically saying the guy was treated unfair (hey! he didn't have sex in a bathroom!) while sports reporters had fun answering questions such as "besides getting him kicked off a Super Bowl team, what have you done for the guy?"

It was a hard fifteen minutes -- you know, like the fifteen (heck, two) minutes his now ex-team could have used TO last weekend. Seriously, what drives people to act like this? For instance, I -- and this is not because I'm never going to see such money in my life -- am a bit amazed at how various players are not satisfied about getting a bit less money than they can. A few million dollars is nothing to sneeze at ... unless you already are making it already and have a pretty good situation to boot. But, you have to remember these people are playing a boy's game ... there must be a different mentality there. And, when you are dealing with the truly elite, like TO, you often are also dealing with a different mentality. Some ... and such people are some of my favorite players ... seem to be able to be fairly even keeled about the whole matter. Others, and they sort of annoy me, have a tendency of being sort of assholes. Sad and all, but hey, the Eagles deficit is the Giants gain, right?

Anyway, back to those cheerleaders. As Paul Shafer on the David Letterman Show noted, this sort of thing is basically what is generally deemed to be the definition of "hot." Now, as one article noted, it is not all fine and dandy. For instance, apparently, the Carolina cheerleaders have a junior contingent ... and explaining to your ten year old daughter why there now are two vacancies on the staff is somewhat "embarrassing." "Embarrassing" is also why the two were fired since a clause in their contract notes dismissal is warranted when they do something that embarrasses the squad. As to victims, thus, we also have the two cheerleaders (also arrested) as well as the lady who one of them punched in the face after members of the line outside the ladies' room (bathroom -- not their room) was annoyed they were taking too long.

They were taking too long because ... of a reason that tabloids (including the NY Daily News who had the chance to twice post their pictures, though only one was a good one) must have thanked heaven (or whoever their pray to) for. Ditto your typical male fans of cheerleaders everywhere -- they were making out in a bathroom stall. Or rather, was involved in "sexual activity," which the two articles in my paper for some reason did not spell out. One of the cheerleaders was underage (20), so had to use a fellow cheerleaders' id (whose mom said it was stolen -- sure) ... the other was a brunette. The blonde punched the woman in the face (when one thinks of "girl fight" ... outside of a Michelle Rodriquez movie ... one just does not think of "fist in face," huh?). Too many Long Island Ice Teas?

This sort of thing is more exciting than the lowly Minnesota Vikings romping on a cruise, huh? Besides, the Carolina Panthers are 6-2, so besides their fans basically having a "yeah" moment (while explaining to their wives and girlfriends how unpleasant the whole matter is ... after all, that woman basketball star showed that being a lesbian in the world of sports can be done tastefully), they can move on ... one does wonder what the "training" sessions are like in those cheerleader practice sessions. Or, what the special additional requirements will be when the two slots (joke omitted) are filled ... "I promise to only slap people on lines." Or, "I will only use fake ids, not those of my fellow cheerleaders" or, perhaps, "I am over twenty one and will only make out with fellow cheerleaders in bathrooms in hotel rooms or places with plenty of spare stalls for women who actually want to go in them solo."

Oh, btw, I found out that Al Franken's (you know, the guy who is a qualified comedian) new book has a truly ironic story about Tom DeLay, both sad and infuriating. But, the world of sports is so much more fun, no?

Election Day

Off year elections -- those in odd years that do not involve federal offices (not even members of Congress, except for special elections like the one for Paul Hackett) are important ones all the same. They address local offices and issues that often have more direct effect on our daily lives than the "big" elections [hopefully, '06 will be more notable than some others]. For instance, this is the year in which New Jersey will get a new governor (after a dirty race in which an ex-wife of one of the candidates campaigned for the other -- yeah, she's a reputable source) and the mayor of NYC is running for re-election (and putting forth an ad blitz* that is only somewhat troubling ... to the degree that millions upon millions are being spent against someone who isn't going to win ... maybe not even his home base). And, various important ballot measures are being voted on throughout the country.

I am not too gung ho about such things -- they tend to be single issue measures that put on the ballot by small groups of people (maybe even one major backer) and the people who have to vote on the darn things do not learn too much about them. Thus, Kevin Drum (Political Animal) has a (pretty good) policy of voting "no" on all but the slam dunk ones ... but then California is especially gung ho about these things. The argument, somewhat sound, is that this gives "the people" (think Tenth Amendment) a direct way to vote on public policy. But "the people" often aren't the ones behind these things and "the people" probably often are better off leaving things to the republican process of indirect democracy. The general sentiment seems to be that at least my local ballot measures were decent ones while one of the two state measures (the bond issue) had to be submitted to the voters anyway. Still ...

NYC had four such measures -- two state, two for NYC alone. The only one that has gotten much coverage -- especially since the NY Daily News editorial staff hates it -- involves an alteration of the far from ideal state budget process which would give the legislature (perennially split, one party controlling each house, thus the delays) some (not complete) more power. I'm willing to try it -- it's not like the current system is so great; besides, as I read about it in my voting guide, it is not just some legislature power grab. The other state measure is a transportation bond matter -- generally supported. The two city measures involves a change in the how city finances are to be handled (both sides generally support it) and a judge ethics measure (could be done by executive or legislative action, so I decided to vote "no" though it is widely supported and likely to pass).

As to the local offices, NYC generally does not have many competitive elections ... surely not in my district. Voting is pretty easy -- my polling place is a few blocks away, usually fairly empty, and since I'm not a black Gore/Kerry voter, it's pretty easy sailing (just kidding). We use soon to be antique lever machines here -- no hanging chads for us! I had some problem a couple years back (the machine temporarily was down) and was given a written ballot. As to my votes, well nothing special, though I did submit a protest vote for Public Advocate (second in command to the mayor, but generally a do nothing job under the current command -- so I voted libertarian, whose main platform is that the position shouldn't exist), and as noted, I actually know one of the four judges (realized on the day of voting that superior court judges also were on the ballot) that I voted for.

I did my job as a citizen. It doesn't pay that well, but sometimes** it isn't too hard.

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* For instance, we hear ads (including on Air America ... this is for a Republican mayor who supported Bush, though he is liberal on various issues, and the likes of Whoopi Goldberg support him) talking about the false claims made by the Democrat, claims I personally never heard about since the challenger has so little money to spend (I finally saw a vanilla campaign ad that sent the message that he was for all members of the city ... though it was kinda vague about the whole thing).

As one sports radio host noted yesterday -- Bloomberg (yeah, that one) should just take a knee. Ferrer is a bigger longshot than the Jets were last Sunday when Vinnie was still QB. Still, including in VA, the Republicans (Bloomberg only became one to win last time -- sorta why Arnold waited to the recall election, playing the rules) are having problems today nationwide.

** I have not been called to jury duty for a few years, but I can tell you that some aspects of the position of citizen can be pretty difficult.

Well, that's confusing

Addendum: The Pentagon released new rules for interrogating detainees basically on the downlow -- no official announcement and so forth. This says (or does not say) volumes -- clearly some forces (read Dick Cheney) still are applying pressure that prevents what would otherwise be a prime public relation (and basic message that we do not support torture or "disappeared" detainees -- we are not some banana republic) move. But, they just cannot do it. But, Bush says they do not torture -- "why won't they believe us!" Strange, I know.

"Our country is at war, and our government has the obligation to protect the American people," Mr. Bush said. "Anything we do to that end, in that effort, any activity we conduct, is within the law. We do not torture."

Hmm ... that's liable to be misunderstood, huh? Wonder how all those interrogators had problems understanding the limits.

Sen. McCain and other conservatives are against torture and misuse of human beings.* Cheney's attempts notwithstanding, the more realistic members of the military and civilian defense departments (many who didn't like the new regime anyway) are starting to realize firm limits need to be applied.

Nice, though Congress is given the power to formulate rules of war and such ... and they should lead the way, not ever flexible executive policy.

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* The NYT notes that some evangelicals also are against pollution/laissez faire business practices that pollute while other Christians [Targeted by the IRS for being too "political" -- surely they are applying the rules across the board, right?] think Jesus might not have liked the war we are now fighting. Darn liberals.

Sunday Thoughts

Washington Post had a good article on "National Security Letters," including the lack of oversight and inability for members of the administration to admit that even if they are a good idea, the costs must be addressed.

The official death (pulling the cord is so hard these days) of the NY Jets season occurred yesterday. They faced up against San Diego -- who couldn't beat the Jets last year and are making a habit of having Fourth Quarter collapses. SD appeared to be on the road to doing so again, especially with an interception at the end of the First Half keeping the game in reach, defensive penalties giving Jets points and tons of yardage, and a late turnover deep in their own territory.

The Jets helped San Diego when they had to take an injury timeout given it was after the Two Minute Warning (Wayne Chrebet's career ending hit ... one hopes at least, given his very season was questionable after last year), but San Diego gave them First and Goal on the 3. Down by 5 (missing a two pointer earlier), a TD would put them up by one ... and the Jets Defense actually showed up in the Second Half. Third stringer Brooks Bollinger [Vinny Testaverde is the sentimental favorite -- but, BB really should have been given more of a chance early on ... moot point now] had just got the team a quick 13 points. Those final three yards, however, was not to come.

Painful loss ... even without the fact the team went to 2-6. In other action, Terrell Owens' two year old crybaby routine helped the Eagles lose an ugly divisional match-up. Chicago beat the "Our team was flooded out too" Saints. Back-up QB Brad Johnson beat Detroit, helping the Bears too. The Packers game was not close ... whens the Packers/Texans match-up? The Giants -- who I still don't trust -- beat a team they had to beat. And, the Knicks did not manage to win a game yet ... two of the three games against lesser opponents.

As to West Wing -- I watched it on tape, but it played live. It was the "Debate" episode in which (fantasy-like) the candidates tossed out the rules -- other than freedom of movement (being able to walk around), it allowed some more back and forth. It surely didn't extend their remarks by much -- reference was made to the Lincoln/Douglas debates, but those were hours on end affairs on one basic point -- end time restraints and still have limited debate time, what do you have really? Anyway, the episode was pretty good (no grand moment, but worth watching) -- it addressed both sides of the coin, so to speak, and had some nutritional value. I say this as a bit of a wonk sort, but still ... I'd give it a B. The show is on the decline, but Alda and Smits are definitely interesting characters, and it has shown some life this season.

Anyway, there are some Air America connections to WW, including the former Clinton staffer, Lawrence O'Donnell involved in the show, and being a guest on the radio station. So, I'll toss in my The Truth (with Jokes) reference here. I discussed a book signing for the book that I went to at which I only picked up a complimentary bookmark. This is not to say the book is not good -- it is, especially its practice of backing up Democratic talking points with facts and notes ... the jokes and sarcasm make them less wonky. Al Franken does a good job -- I just heard much of the stuff on his show, and darn if the book already is in the library. A good addition to your "anti-Bush" library ... a cottage industry that is one of those economic areas that the administration actually helped.

BTW ... keep away from those Long Island Ice Teas that appear not to have any ice tea ... ouch.

A take on that Casey Dissent

And Also: Catholics to control the Court? If Alito gets on, will votewise at least 5-4. Interesting discussion found here. A couple views on Ohio 2004. [Access code: MJ9ASW; others available online.] Claims Kerry admitted he thought the election was stolen was refuted by his spokesperson. Whatever.

Alito was a crafty pick with commendable elements. Clearly, we have an experienced judge that on various levels is "qualified" and uncontroversial. He is conservative, but less well known/controversial than other potential picks, down to the very circuit he harks from -- when do we hear about the Third Circuit? No crony or blatantly political pick (politics did factor in, of course) here, someone non-Bush critics need to think about a bit before having problems.

And, since this is in some people's minds is the disqualification test (basically, he was elected, so Bush can pick practically anyone, as long as they are minimally qualified), this is another reason why the pick is a smart one. But, I happen to have a higher test ... and Alito is a bit less "conservative" than some give him credit for. OTHO, it depends on how you define the term (he is conservative ... just sometimes conservative activist). Thus, posts like this one.

William Saletan (Slate) and Charles Krauthammer (conservative commentator) takes on Judge Alito's dissent respecting one issue in Planned Parenthood v. Casey (Third Circuit) and both are too over the top. Krauthammer takes on the critics, and honestly, he takes on a rather easy target -- the emotions raised and assumptions made from this one dissenting opinion is honestly a bit over the top. The whole affair is useful though both as a window into Alito's jurisprudence and how public commentary tends to work. The ultimate lesson is that you should not try to read too much into things, even when the other side reads too little.

The opinion concerns one provision of the law, the one provision that the Supreme Court eventually struck down. It requires husband notification before women have an abortion, but is ultimately something of a work of symbolism. The woman has to check a box that she so notified [Krauthammer references its criminal possibilities (slim at best), but would breaches not also have civil suit possibilities (much more likely)?] and there are various exceptions: if he is not the father, could not be found, raped her, or she has reason to believe that he might physically harm her. Clearly, only a small amount of women would be affected by this at all and many covered by the provisions. As a notification law, it surely is relatively benign.

I would add "relatively" is the issue here -- it is problematic. First, as found in Casey (but not by Alito), one must focus not on all women but the women who are affected. Second, when addressing these women, the provision is underinclusive. The "physical" limitation is too narrow and even if the woman's situation applies, she might fear the husband would find out. [Krauthammer doesn't address this.] Anyway, overall women have an independent right to control their bodies, so telling their husbands about such matters would violate liberty and equal protection values. References to teenage notification laws/cases -- clearly more burdensome and imho wrongly upheld even with a "judicial bypass" provision -- fail to note that teens and women are different. K. also fails to point this out.

So, so critics like Saletan have a point -- Alito did not respect the differences between teens and women to a high enough degree. This is a valid criticism, but it is taken too far. The same applies to a case involving a warrant that the majority noted specifically only applied to the male occupant. Judge Alito reasonably argued it need not be taken that literally, but failed to take into consideration the liberty interests of the unnamed occupants, one who was a minor.

This was my problem with the opinion of "strip search Sammy," not that the occupants were a wife and child -- the opinion was not sexist, since he would have held similarly if the genders were reversed. The "women and children as chattel" overkill only helps the opposition ... Krauthammer's editorial railing against easy targets suggests as much. Actually, though I should add that the presence of the child is troubling, the problem is worse -- a more general lack of concern for liberty in the interest of institutional interests. [Institutions are good, surely, including juries ... but countervailing interests are important in our constitutional scheme as well.]

Back to the Casey dissent. I would add that the dissent was written like fifteen years ago -- so, this is not the work of a judge with much time under his belt (Alito was just nominated about a year before). But, yes, this suggests some lack of care. A new judge should be a bit more careful in stepping beyond safe bounds into more cloudy waters, even if done with "careful study" (biting off more you can chew might be considered to be lacking the right amount of humility -- sometimes a useful value for a judge, both ways) Again, criticism of a different sort, akin to Prof. Cass Sunstein's findings that as a whole his dissents were not "conservative" -- they went beyond more "safe" majority opinions, no matter what their ideological tone (OTOH, the dissents tended to be predictably conservative).*

K. notes that Alito was trying to determine the meaning of a hazy doctrine -- Justice O'Connor's "undue burden" standard. Ah, but except for teens, the Supreme Court as a whole never really addressed what this standard (post-Webster) meant. So, he was left with reading her past concurrences and dissents. This is iffy -- it is not big surprise that once "undue burden" became the test in Casey, the plurality tinkered with her analysis. Opinions of the Court that set forth doctrine are often different than single judges voicing their views, especially when such views are in dissents or dicta. Her Webster opinion basically said that the law at stake didn't even breach Roe -- she left revisiting it to another day ... Alito should have left it clarification to the Supreme Court.

Yes, the teen notification cases were of some relevance. I do not blame him for using them ... up to a point. The point is that women are involved here, so even with less burdensome laws, stronger interests are at stake. Again, note that I am substantively in agreement with Saletan more than I am not ... it's the over the top tone that bothers me. For instance, Saletan slams Alito for citing a few cases to underline that fathers have interests in fetuses. The cases reference their right to have children, interests in retaining custody, and so forth. But, surely, fathers also have some interest in the unborn ... for instance, if they are criminally harmed, would not fathers have some right to claim civil damages? Alarm bells might ring, but remember, a woman can be pro-choice and still have an interest in preventing illegitimate harm to her embryo/fetus.

[Bit More: Ridicule is made that sterilization of male criminals is used in an abortion case, but Skinner is an oft-cited case in privacy opinions. It also was noted it is telling that the opinion was tried twenty years before Griswold -- male criminals more important, etc. But, yes, criminal cases are more troubling than civil ones -- a higher burden has to be met. Also, eugenics in Nazi Germany made the practice here particularly troubling. Finally, unlike Saletan, Alito cited at least four fatherhood rights cases. Still, none of them addressed this troubling issue, and his dissent went on a bit of a limb doing so. Not conservative ... or rather ... conservative activist.]

Alito stretches here ... I don't think any case touches the matter in particular ... but it's a reasonable statement. In another opinion, Alito suggests that maybe "persons" in some fashion can be unborn ... you can see how pro-choice advocates can find problems with such passing tidbits. Still, within certain bounds, we damn such sentiments to our peril. We really cannot be absolutist here -- in the real world, the issue is what results from such comments. The problem in this case is a countervailing interest in the mother's liberty interest. Aided by not focusing purely on the women who might be harmed here (versus all women who have an abortion), he finds it "reasonable" (rational basis review) to require women to notify given the safeguards. No, and to get there, you have to make various assumptions. In no way was he "compelled" by precedent to do so.

Judge Alito go there using a reasonable -- if we accept his assumptions -- path. This is what people mean by saying he is "qualified" -- a bare bones technical requirement that he is a smart legal technician. It also suggests the problems with such a low bar -- let us say that a certain insight must be taken into consideration as well. I would add his non-judicial experience (or lack thereof ... I reference again the local civil judge election -- the person I spoke of last time has an interesting background that will add to his "qualifications.") too, but let us focus on reasoning alone. His dissent suggests it lacks something.

But, sure, we cannot overanalyze it. This is why Sunstein's survey approach is useful as is others who offer various examples of what troubles them. You know, after awhile, a trend seems to form. But, the trend can be exaggerated, even if general sentiments often are when dealing with summary thumbnail overviews. I tend to try to decide if something is there ... if in a particular situation, the balance of the evidence suggests a certain conclusion. This does not mean all the facts were accurate or that some exaggerations were not made. They often are, especially in editorials or statements by politicians. It is a question of degree though -- sometimes they go too far.

And, the result can be counterproductive to their aims. Still, the debate is useful and brings forth some useful truths. Such is the value of free and open debate generally -- we all tend to be wrong or somewhat off sometimes, but the net result is felt to be useful all the same. Maybe, with a bit of caution, it can be more so.

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* This is telling, especially when trying to interpret the opinions of a lower court judge. K. notes that "almost invariably" Judge Alito's opinions/dissents were "based on the Supreme Court's own precedents." But, precedents can be applied in any number of ways, many of which are quite reasonable. In various cases, how Alito used them is telling. Sometimes, they are clearly loyal to precedents critics do not like ... this too is useful, especially to the degree we can determine how "loyal" Alito really was.

He cannot be blamed for doing his job, but senators need not be overly happy about it especially when he went further than he had to. And, this dissent is such a case. I would argue that, the caption on the picture in my copy of the editorial notwithstanding, it also suggests a bit less "judicial restraint" than we are led to believe. But, then, restraint for some is not always a good thing.