More Dave

And Also: "We get into the habit of compromising and therefore we are always compromised." A good line in the HBO film The Girl in the Café, a good rental that mixes the personal relationship between a middle aged British servant and young woman with a past with G8 battles over poverty. The message aspect is a bit much, but not to be shunted aside, while the personal stories (and performances) truly make it worthwhile. Good audio commentary on DVD.

More Dave Barry ...

Meanwhile in Iraq, the first free elections in half a century are held under tense but generally scary conditions, with more than 8 million Iraqis turning out to elect a National Assembly, whose idealistic goal, in the coming months, will be to not get blown up. ...

In a strongly worded rebuttal, angry Congressional Democrats state that, because of a scheduling mix-up, they missed the president's speech, but whatever he said, they totally disagree with it, and if they once voted in favor of it, they did so only because the president lied to them. ...

In Washington, President Bush bypasses Congress with a recess appointment of his controversial nominee John Bolton, to be U.S. ambassador to the United Nations. Bolton immediately signals a new tone in American diplomacy by punching out the ambassador from Yemen in a dispute involving the U.N. cafeteria salad bar.

In other foreign-policy news, the Rev. Pat Robertson states on his Christian Broadcasting Network show that the U.S. should assassinate Venezuelan President Hugo Chavez. Responding to harsh criticism, the Rev. Robertson retracts this statement several days later with the explanation, "Evidently I am a raving lunatic." ...

It is not until . . . . . . SEPTEMBER . . . that the full magnitude of the New Orleans devastation sinks in, and local, state and federal officials manage to get their act together and begin the difficult, painstaking work of blaming each other for screwing up. ...

Also heating up in November is the debate over Iraq, with even Vice President Dick Cheney joining in, fueling rumors that he is still alive. President Bush makes a series of strong speeches, stating that while he "will not impugn the patriotism'' of those who oppose his administration's policies, they are "traitor scum."

Dave Barry: 2005 In Law

And Also: Orin Kerr (and many comments) makes mincemeat of a WSJ piece promoting excessive Art. II powers. As to Kerr's comment that the executive's actions probably pass Fourth Amendment muster (which doesn't save them), see also his comment that "the usual role of the Fourth Amendment ... [is] a floor on privacy." As to the Congress' role in determining "reasonableness," see in part this ruling [looking toward, in part, "the expression of the judgment of Congress"], which also suggests SC liberals can use original understanding quite well. In fact, I find they often do it quite well.

Dave Barry is on hiatus, but came out to write another wicked year in review feature. This is a two-parter: law first.

But the major issue facing our elected leaders in March clearly is not whether a bunch of overpaid athletes cheated. No, at a time when the nation is beset by serious problems in so many critical areas -- including Iraq, terrorism, the economy, energy, education and health care -- the issue that obsesses our elected leaders to the point of paralyzing government at the federal, state and local levels for weeks, is: Terri Schiavo's feeding tube. This, unfortunately, is not a joke. ...

In a strongly worded rebuttal, angry Congressional Democrats state that, because of a scheduling mix-up, they missed the president's speech, but whatever he said, they totally disagree with it, and if they once voted in favor of it, they did so only because the president lied to them. ...

The Supreme Court remains in the news in . . . . . . JULY . . . when Justice Sandra Day O'Connor announces her retirement, setting off a heated debate between right-wing groups, who think the president should appoint a conservative to replace her, and left-wing groups, who think the president should drop dead. Eventually Bush nominates a man going by the moniker of "John Roberts," who, in the tradition of recent Supreme Court nominees, refuses to reveal anything about himself, and wears a Zorro-style mask to protect his secret identity. In response, Democrats on the Senate Judiciary Committee, led by Sen. Joe Biden, vow to, quote, "get on television a LOT." ...

In non-hurricane news, the Senate confirms the Supreme Court nominee known as "John Roberts" after the Judiciary Committee spends several fruitless days trying to trick him into expressing an opinion by asking such trap questions as "Can you tell us the capital of Vermont and your views on abortion?" The only moment of drama comes when Sen. Joe Biden launches into his opening remarks, thus causing several committee members, who forgot to insert earplugs, to lapse into comas. ...

. . . OCTOBER . . . President Bush, needing to make another appointment to the Supreme Court, conducts a thorough and painstaking investigation of every single woman lawyer within an 8-foot radius of his desk. He concludes that the best person for the job is White House Counsel Harriet Miers, who, in the tradition of such legendary justices as Felix Frankfurter, Louis Brandeis and Oliver Wendell Holmes, is a carbon-based life form.

Ultimately Miers withdraws her name. The president, after conducting another exhaustive search, decides to appoint "John Roberts" again, because it worked out so well the first time. Informed by his aides that there could be some legal problem with this tactic, the president finally decides to nominate Samuel Alito. Democrats immediately announce that they strongly oppose Alito and intend to do some research soon to find out why.

Shameful Acts

The Justice Department said today that it had opened a criminal investigation into the disclosure of classified information about a secret National Security Agency program under which President Bush authorized eavesdropping on people in the United States without a court warrant. ...

The president last week denounced the leak of information about the program in strong language, saying: "My personal opinion is it was a shameful act for someone to disclose this very important program in a time of war. The fact that we're discussing this program is helping the enemy."

-- Justice Dept. Opens Inquiry Into Leak of Domestic Spying

Well, they have their priorities straight, don't they? Simply put, he thinks our constitutional traditions are impossible, rather that they help the enemy. I guess so, in a sense. They in part help him, and in various respects, he and his ilk are the enemy of our values. This is not really Godwin's Law. Ultimately, we pledge allegiance not to dirt or even people, but for what something "stands" for.

It doesn't stand for much of what he and others of his ilk promote. I am annoyed, ever so much, when the likes of Mike Malloy (Air America) and others rant and rave to the degree that they think Bush et. al. are the spawns of Satan. It's like they think one must be in the state of the Jets offensive line to be a bad football team. No, a lot less is required. And, it's there.

Anyway, when he speaks of "shame," all I have to say is "shut the f-up." By now, I don't really know if he really knows what that means. Such is my gut reaction. One can insert various amounts of nuance, and since I read that last book, you know I have it in spades. But, just think of Valerie Plame or any number of selective leaks from top unnamed sources of classified information quite "important" too. We are all imperfect beings ... some just are a bit too much for my tastes. For what my opinion is worth, etc.

Go Giants. Let's not end the year badly, hmm?

Catholicism and American Freedom

And also: A lighter read can be had with Beyond The Blonde by Kathleen Flynn-Hiu, which is basically a roman-à-clef (the author is also a “star colorist” and married to someone in the industry) concerning a salon in New York City. The author of Legally Blonde (see the movie, the book is a bit lame) noted that blondeness is actually an inner quality: “True blondes, whether natural or not, could be identified by their inner light of buoyant, charmed confidence.” The clients of the colorist might not agree, but should appreciate the book all the same. Loses its way a bit toward the end, but overall, a pleasurable “beach” read … well, darn, it is in the 40s this week.

Recently, a couple bloggers were discussing the affect blogging had on reading books. One noted that though reading a book was the only true way to fully understand a subject, blogging cut into reading time, while another was more doubtful if this was true. [She is a professor, however, and a quick reader ... this is an important caveat.] After all, if anything, blogging encourages reading books, either by citation (I noted, for instance, TPM recently caught my eye with a recommendation of a book on the fall of the Roman Empire) or by raising a subject that encourages further reading.

But, surely, blogging cuts into necessarily limited reading time. This is true even if, like C-SPAN Booknotes and so forth, the Internet does lead one to find out about many books and subjects that they otherwise might not. OTOH, I would suggest books are not always required to learn about a subject. Articles and so forth often provide a good flavor of a subject, full length volumes sometimes just supplying detail that might be interesting and useful, but not necessarily required. Likewise, one just has so much time to read books, especially for those with eclectic tastes. [And, a reader of this blog might realize even mine focuses particularly on certain subjects.] Anyway, I first read about the book discussed below online, thus this prologue.

Catholicism and American Freedom by John T. McGreevy is an interesting and worthwhile, if flawed, account of Catholic history in the U.S. from the mid-19th Century to the present day. One thing that annoys is the use of the terms "ultramontanism" and Thomistic philosophy without fully explaining what they mean. Yes, the book does note that the former term concerned a Vatican-centered approach reaffirming the importance of the works of St. Thomas of Aquinas as well as "experiential piety centered on miracles" and other devotions such as those honoring the Virgin Mary. Nonetheless, not once do we find out where the term arises. It is simple enough -- it means "beyond the mountains," namely the Vatican. Likewise, a short summary of "Thomistic philosophy" would have been useful, though one can get something of a taste from the text.

The book raises various interesting subjects. It begins with the antebellum period during which the Catholic Church was wary about abolitionism, which along with its allegedly authoritarian/foreign controlled nature (plus the number of immigrants filling its seats*), led to major opposition. This opposition has direct context to disputes today involving fundamentalism, including its political flavor. Protestantism was seen as supportive of individual liberty as well as Americana, given its focus on the individual believer's acceptance and understanding of the Bible. Catholicism was a more hierarchical faith, one led from a pope (king?) beyond the mountains. It also was a more conservative faith as well as one with a more communitarian mind-set: individual liberty was not supreme to societal well-being. This would later inspire a more social welfare approach with progressive implications, but clearly contrasts with basic American ideology.

Catholics were an important interest group of the Democratic Party ... this is seen by the fact that originally even the likes of Ted Kennedy was in effect pro-life. As to the abolitionist issue, it should be noted that many across the board was wary about that, even if they did not like slavery per se. And, Catholics opposed many aspects of slavery, including disrespect of marriage rights and religious obligations to slaves.

Nonetheless, the Church was wary of abolition overall, fearing the major change to society this would bring -- in particular, some of the more radical rhetoric of freedom and change used in support. This reflected events in Italy as well -- violent revolutions in the air, "liberal" thought was clearly dangerous. The complexity of this fear of individual liberty taken too far is suggested by the Church's concern about "liberty of contract" -- an artificial construct that threatened the well-being of workers.

The book offers an interesting account of the complexities of Catholicism's approach to American Freedom. The authoritarian nature of the Church, including the need to follow canon law (one critic complained that some writers appeared to be like criminal defense attorneys trying to get guilty clients off by interpreting clearly unjust canon law in the best possible way) clashes with its benign -- if different -- approach to ethics and morality.

This is suggested by its discussion of 20th Century Catholic greats, who in many cases fully and passionately cared about the welfare of society, including workers, the poor, misuse of military might, and so forth. The trope that those against abortion do not care about children after birth is belied here, though it is noted in passing that some of their Protestant allies do not support the social welfare beliefs of many Catholics (priests and nuns who became martyrs in Latin America suggest the truth to these beliefs). Individual liberty vs. society liberty, so to speak, is a major debate that is worth having.

McGreevy becomes a bit more partisan toward the end of the book, especially after the 1960s, which is not too surprising since he is speaking about his own era (he teaches at Notre Dame). Still, even the account of these decades is of interest. To cite one subject dear to my heart, he discusses the anti-abortion efforts -- which had some real affect in state legislatures -- led by the Catholics in the years right before Roe v. Wade. This belies the trope, a mischievous and misguided one, that somehow the right to choose was just about to be legalized nationwide. Likewise, he notes that Southern Baptists actually supported "reform" laws (allowing abortion in limited circumstances such as for the health of the women -- broadly defined -- and in cases of rape and incest) and put out a statement that Roe supported "freedom of religion."

The book is a bit hard going at a few points, but overall it is a fairly good read. The struggles, I guess, began when it started to focus on a few major thinkers, and not the Church overall. This was not overdone, but more emphasis on the masses, so to speak, would have been helpful. In particular, more coverage of women -- for instance, Dorothy Day was only briefly covered -- would have been beneficial. Also, as noted above, the book assumes the reader is somewhat familiar with some of the basics ... a bit more clarification at some points would have been helpful, including translation of certain Latin titles. Nonetheless, it was a useful introduction to the subject.

A personal word. Having grown up in the faith, though not really deeply, the book was of course of particular interest. The faith is not quite copasetic to my beliefs, which should not come as a shock. The benign characteristics of Catholicism, however, surely should not be ignored -- its "catholic" reach over cultures, the social welfare aspects of its doctrine and policies (especially after the late 19th Century, it inspired much social reform), and various doctrines (confession seems to me a quite useful institution, especially if we take its true repentance aspect seriously).

But, oh that doctrine overall: supportive of an elitist top down command structure that remains male dominated, ignorant of realities like the need of divorce/contraceptives, rejection of homosexuality and sex out of marriage, and so forth. And, a basically hypocritical avoidance approach. After all, most Catholics (in the U.S. at least!) use contraceptives, ignoring Church doctrine when it suits -- but this individual morality approach is pure Protestantism.

The Church does not truly face the issue, however, because they know they cannot without changing the law or losing masses of church goers. An honest approach, though this would call into question tropes like the permanence of church doctrine and papal infallibility (which, even in a narrow sense, is an absurdity) would have been to change the policy in the 1960s. Likewise, the whole dodge of sometimes (in an arbitrary way) allowing annulments.

No, I can greatly respect the Church and some who still call themselves Catholics even though they resist many church laws (this really is cheating), but ultimately it is a sort of tragic respect -- can they change for the better and still remain Catholic?** But, yes, a certain pragmatic/realism does exist in many Catholics that works fairly well. This book offers the reader a more complete look at the the history of their faith, one that remains quite important. After all, the Supreme Court might be 5-4 Catholics soon enough. And, Catholic thinkers often supply ideological weight to conservative Protestant thought and social policies.

The conflict between the two would be a useful follow-up to this volume.

---


* Since the book begins, somewhat artificially, in the 19th Century, the fact that Catholics did have some notable presence in colonial times was not addressed. For instance, Maryland was originally a haven for Catholics, and native son Chief Justice Taney was Roman Catholic. The minority nature of the faith in those times -- the 19th Century being the great period of growth -- is suggested by James Madison noting that congressional chaplains are of questionable constitutionality in part because it is unlikely any would be Catholic. This came to mind attention via a citation of a current dispute involving a military chaplain who refuses to use more universal language.

** This is a touchy subject, and it's hard to discuss it with various Catholics without it getting emotional. One person tried to explain to me that some of the things I listed really were not the fundamental aspects of the faith, but I did not buy it. The Catholic Church is not a Chinese menu in which you can pick and choose ... the Church, for instance, is quite passionate that natural law dictates that sex is basically procreative and that human personhood begins at conception. Thus, its stance on contraception is no minor one, and abortion in particular is quite a serious matter. It also is by its very nature a hierarchal/top-down institution, which led to various ill advised compromises allegedly for the good of the Church.

Most faiths have their good points ... Catholicism is no exception, and its long history surely suggests that. But, I remain a Protestant at heart ... with Catholic flavor added into the mix. For instance, I do have sympathy to natural law. Certain things can be determined from the nature of things, though the ultimate sanction is quite a different matter. And, more situational ethics does have their place -- but, I think this too can be said to be an outgrowth of natural law. After all, there is much flexibility in nature. Likewise, the good of society must be taken into consideration, but I think individual liberty and hands off government often is a good way to do this. Complicated? Yeah.

R-e-s-p-e-c-t ... and the MTA Strike

The conservative editors at the NY Daily News, Mort Zuckerman's team, to use a term by the more sympathetic Village Voice, did not think much of last week's NYC Transit Strike. The number of "you selfish ["gravy train"] asshole" epithets used suggests as much. This was also shown in the coverage, which did not quite go out of their way to tell both sides equally. OTOH, the paper does have good entertainment/sports/comics, and a few good progressive columnists.

But, the story does turn out to be complex, as suggested by a story today on the pension provisions of the final agreement. The story begins: "Thousands of bus and subway workers are poised to reap up to $14,000 each in a new contract pension windfall that will ease the pain of their strike penalties - but will cost commuters an estimated $110 million. News of the surprise Metropolitan Transportation Authority payout to up to 20,000 union members follows last week's crippling three-day strike, which cost the city an estimated $1 billion and wreaked pre-holiday chaos."

But, as we find out later: "'It'll probably balance out, but it's actually our money,' said bus driver Alfred Kwiatkowski, 50, of the lower East Side. ... Gov. Pataki twice vetoed bills that would have returned the money to workers like Rios, saying it was a matter for the bargaining table. So that's what the MTA did - agreeing to the one-time payment.' Factor in the average $1000 each union member lost during the strike.

The net result: "They both got what they could live with, which is what collective bargaining is all about," said Assemblyman Richard Brodsky (D-Westchester). The parent union was hesitant about the strike, but the local was much less so. They elected an outspoken leader partly to get respect. The excessive number of disciplinary actions, again individual stories were not often seen in the NY Daily News, suggest a reason why they wanted it. And, there were some real financial concerns.

Maybe, others didn't have it so well, but Republicans like Gov. Pataki (again, MIA in the final days before the strike) and billionaire Mayor Bloomberg really shouldn't go there. Or, many of the policies of their own party might be raised. The importance of organized action, organized labor, should not be ignored. Lobbying by corporations suggest they think organized action is useful. Why suddenly is it not when workers are involved? When we are talking about 27K pensions ... less than the tax write offs of many helped by Bush tax cuts? Is it "all those losers without unions manage with less ... so stop whining?"

Again, we hear about the horrible results of the strike. NYC managed. I'm not sure how "crippling" it was -- when we had that blackout here (that did not start at midnight but in the middle of the afternoon), maybe that word is appropriate. Not when there was still multiple ways to get into the City, including some means of public transportation not affected by the strike. It surely hurt, but when was the last time we had a strike of this nature? Well, not for a pretty long time. Again, I think it useful to have a taste of worker unrest to show they still are there. Even, if it is debatable that it was necessary.

[The necessary nature does suggest the justice of breaking a law against such public sector strikes, though the transit (as noted) is not as important as police and fire services. OTOH, as noted by one writer, the other side appears to had broken the law too by altering the pension arrangement without legislative approval. Anyway, that is what the fines and so forth are all about ... and part of the reason the strike was only three days.] Or, is it only important to respect the President and other better paid sorts of that ilk?

For a mixed view of things, see here, which has some good Atrios links too. Kevin Drum's wariness also led to some good comments. One key issue: with apologies to my brother, the work leaves something to be desired. Yes, you don't get shot at or go into buildings on fire, but it is often pretty unhealthy and stressful work.

Jokes aside, our transit system is rather wondrous given the size and volume of passengers on a daily basis. The strike forced us to see who ensures our $2 (this week, $1 ... the loss of funds apparently was not THAT major) ride goes smoothly. Hopefully, it helped.

Warrants and Fighting Bias

And Also: A few good pieces on the NYC Transit Strike -- one on the issue of respect, in particular arbitrary disciplinary actions that was a major impetus, and another spelling out the ultimate agreement that must now be voted on by the rank and fire. The agreement meets some of the workers' fiscal concerns but the issue of respect will have to meet the test of time.

Many have written on the (in some fashion) domestic warrantless national security wiretaps as have I. Various people put convincing arguments forth that they were unnecessary, illegal, unconstitutional, and an impeachable offense.

The counterarguments, though not all as unreasonable as some accounts imply, are at best incomplete and not really satisfactory (see comments) as defenses. The various criticisms of Cass Sunstein's guarded defense (in its more restrained mode, leaving open enough caveats to satisfy his liberal fans ... but weak-willed Liebermanism is just not satisfactory) also warrant some perusal. [He apparently is a popular cite and Krauthammer et. al. has used his hesistance to their benefit.] Ironically, one of them* was by a fellow professor who soon after (see same website) put forth a rightly criticized duo of posts passionately opposing the recent Intelligent Design opinion!

My concern is basically threefold: the secrecy, the lackluster press coverage, and the excess claims of executive power. Prof. Colb hits a key issue that in some fashion affects all three:

To be sure, bias is not the same thing as dishonesty (although a bias can certainly give rise to dishonesty, such as when a defendant's mother provides a false alibi in an attempt to save her son from the death penalty). To be biased, simply put, is to have a set of loyalties and interests that could interfere with one's ability objectively to process and measure facts. (Most parents, for example, believe that their children are above average, but they cannot all be right). ...

The warrant requirement is a critical component of our democracy. Right now, it ensures that someone outside of the Bush Administration might be in a position to criticize and veto decisions that could be biased, mistaken, and ultimately fatal to the freedom that Bush and his critics alike hold dear.

This hits a key issue. Secrecy is a problem because a republican democracy like ours requires some degree of openness and checks and balances.

This is also why ... disposing of their Pentagon Papers tradition of the past ... the NYT's delay of coverage (and somewhat tame accounts once actually deigning to inform the public) is so troubling. Ditto the lack of true congressional oversight and input -- as an expert in the area noted, just informing a "gang of eight" is not enough, especially since they are by law required to keep some communications private. As usual, quite a few concerned accounts do not come from the stereotypical "liberals" and so forth, but by hard to stereotype people in the know.

[The expert also criticized the absurd claim that requesting authority from Congress and/or the courts, especially the latter, would somehow be a threat since the enemy would know what was going on. Not only are FISA court proceedings secret in respect to such sensitive issues, but it is dubious indeed that said enemy does not realize that we are listening in. I might also refer the reader to Justice Black's opinion in the Pentagon Papers case: "The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic." Our current leaders, I guess, are not quite as secure and dare I say "manly" as those the justice spoke for.]

And, the reason for such checks is in large part because of bias. This is spun by some as a petty or partisan claim as well as a suggestion that basically the professionalism of the people involved are being called into question. But, as the quote suggests, this is bogus. Surely, in this case, "bias" as defined here is not the sole problem -- more insidious forces are at work. But, the Constitution understands that some degree of bias is inherent in the system, in fact, that it is to some degree useful -- interest vs. interest. But, biased interest it clearly is, requiring checks and balances. This is the ultimate problem with an ultrapowerful executive ... and why claims like Prof. Yoo's can be quite easily attacked with orginalist sounding arguments.

To return to an earlier point, focusing on the President's overreaching is only half the story. As Justice Jackson once said, Congress is ultimately responsible for not losing its power vis-à-vis the executive ... he said as much in the key case of Youngstown, which attacked quite similar claims of inherent executive power during wartime.** In fact, the main opinion even mentioned Truman's claims that existing law was too cumbersome, while a dissenting opinion argued no law specifically forbid him from seizing the mills and that Truman was forthright about what he was doing. No wonder various senators asked Judge Roberts his stance on the case during the hearings.

I'll add that other institutions, including the press and the courts, also has to be very careful with their prerogatives as well. This too was voiced by many Framers ... who distrusted a powerful king, but knew the executive still needed to have some true "energy" as well.

But, with the proper checks. I refer again to the Pentagon Papers case in which not only did various papers print chunks of the material (showing some caution) but the courts ultimately upheld their right to do so. At about the same time, limits on executive power to domestically obtain information without warrants also was put forth. The current actions by all three parties leave something to be desired, but perhaps pushed by a fourth ("We the People"), perhaps some life is left in them yet.

So, I guess I'll add a fourth -- a need for a strong and opposition response to this clear violation of our civic/constitutional values, including rejection of halfhearted efforts (this does not mean agreeing with all aspects ... as usual, there is just so much to oppose). Value concerns do not just apply to wanting gays not to marry or promoting sectarian views on abortion. They apply to basic democratic and republican (both small letters) values as well.

---

* He noted that: "As revised after -- I said after -- 9/11, FISA comprehensively regulates wiretapping to gather foreign security intelligence. Under this statute, the Attorney General may in some situations authorize wiretapping without a court order for as much as a year, provided no 'U.S. person' is likely to be overheard." His ID posts can be found on the main page of the link.

** He also noted that "the great purposes of the Constitution do not depend on the approval or convenience of those they restrain." This applies to all parties here, including Republicans in Congress loathe to go against their putative leader. Jackson said this in his dissent in Everson, the school bus case.

Christmas Musings

And Also: Charles Krauthammer's column defending the lawless presidential national security wiretaps popped up in the local paper on Xmas ... oh joy. I like his bit about how pragmatically, he agrees that President should have like fully notified Congress about the whole thing and asked for clear authorization, but hey such things aren't like constitutionally required or anything. Just look at (selectively) some handpicked legal minds said! Another mind, this time an economic one who does comment on other matters quite well, had a striking parody of the column.

A traditional thing on Xmas is construction -- namely, putting together toys and such that will not be played with that long. This was stereotypically done by the dad. I do not have children, but do find it enjoyable to put together not too complicated things -- for instance, I left the construction of my table (the usual site of the creation of these posts) to someone else. Nonetheless, reasonable things are fine with me, so it was fitting that I spent a little time last night putting together my new office chair -- ah, the allen wrench. Overall, the holiday went decent enough, though the Giants loss on Christmas Eve was not a good start. Messy game -- probable rematch (should be on the home site ... after all, even the Jets beat Oakland) in the playoffs will be a time to make up for the loss.

A usual tradition (recent, at least) is to see a movie on Christmas (after dropping off presents to those of us who still live in the City) with some of the family. Mixed success of late with the quality, but this year (a bit surprisingly) was a good one. Rumor Has It with Jennifer Aniston (and company) is a well acted (even Kathy Bates, in a cameo, is good) comedy/drama that actually is a bit creative. Rob Reiner is not usually that "deep" in his films, so this too is a bit of a departure, though that fact he was friends with Anne Bancroft (Mrs. Robinson) might have affected things a bit.

It takes as its conceit that The Graduate was based on a true story, with some dramatic license, and Aniston plays the daughter of the Katherine Ross character. And, it is the wedding of her sister (a great Mena Suvari, in super bouncy mode) that sets things in motion this time. Though the scenes with Kevin Costner eventually are a bit of a lull (I think having him as a "concept" ... the guy who slept with the mother/grandmother was better than when he came around), the movie was strong from start to finish. The first 1/3 leading up to the wedding was a strong character driven arc with many humorous aspects. The last 1/3 also was very good as well ... the middle 1/3 mixed, but still pretty good. Even a seemingly obligatory bit was good while it was happening ... I thought "oh that was a bit tired" after it was over, but that was ten minutes later.

Aniston also was very good ... though her tan/hair makes her look a bit too movie starrish, she is a talented actress and is able to play fairly average enough people quite convincingly (here she is on the very bottom of the NYT food chain ... in Office Space she was good as a not quite into it member of some chain restaurant with goofy "fun" policies). She and Lisa Kudrow (with Matthew Perry a far but still at times decent third) are the Friends veterans that have clear talent and a future in the movie industry. JA does get far on cuteness, but that should last for at least the better part of a decade. Anyway, there is a great line in which she says that she can live without her b/f, but really does not want to -- it is a sentiment quite true, as many who lost those they loved find out, but one movies are a bit loathe to admit to.

One more thing somewhat related to the holiday weekend (btw it is useful to just use the day after to do nothing much ... you need time to get back on track) ... my brother drove me from the station to the now traditional family meeting on Christmas Eve (that lasts just a tad bit too long) and was a bit surprisingly cynical about the transit strike. On the other hand, maybe he can be more realistic ... as a former union man himself ... about how things are. I speak of the short strike of the NYC transit workers. Basically, he felt -- especially for you know a transit worker as compared to police/fire department workers -- their benefits are pretty good.

And, what exactly did they gain? Yes, if they gave in a bit on the pension now, they will be hurt more in the future, but hell they wanted to retire at 55 ... brother here has to wait to 72 to get full Social Security (I don't know his pension set-up or anything). He did agree that the other side was not playing with clean hands. I also found out someone (not him ... don't know what he did) disappointedly voted for Bush in '04. Clearly, her judgment ... though in various things I'm perfectly fine with it ... slipped.

I guess one can make her a symbolic representation of the country or something. If so, it isn't too bad. Except the electing Bush thing.

Ten Commandments and Pigeons

And Also: Not surprisingly, an appellate court also upheld a recent Chicago ban on pigeon ownership, to the dismay of a racing club. One of the opinions below cited the "enlightened view" of New York, which allows such ownership/activity (a relative of mine once raced, so this isn't news to me), while being "sympathetic" that "losing one's pet, hobby, or perhaps business, is always unpleasant." But, Chicago has the power to selectively target our fair-feathered friend here, and their concerns of noise and other nuisances are not really unreasonable. At least, the courts were fairly gentle about the whole thing.

[Xmas timetable: Finished Wrapping Presents.]

Am. Civil Liberties Union v. Mercer County. A Ten Commandments display akin to the one struck down in the McCreary County case was upheld by the Sixth Circuit, even though it also was displayed in a Kentucky Courthouse and authorized by the same general sentiment the Supreme Court was wary about. Key facts:

On October 9, 2001, Carroll Rousey, a Mercer County resident, requested permission to hang a display entitled "Foundations of American Law and Government" in the County Courthouse. The display was to include the Mayflower Compact; the Declaration of Independence; the Ten Commandments; the Magna Carta (in two frames); the Star-Spangled Banner; the National Motto "In God We Trust" and the Preamble to the Kentucky Constitution (one frame); the Bill of Rights; and Lady Justice.

After learning that the Kentucky General Assembly had recently passed a resolution authorizing the inclusion of the Ten Commandments in displays of formative, historical documents on government property, the Mercer County Fiscal Court voted to allow Mr. Rousey to hang the display as described. Mr. Rousey paid for, framed, and hung the display on the courthouse walls himself.

Included in the display is a commentary page that contains an explanation for each of the nine items. The following is the explanation for the Ten Commandments: The Ten Commandments have profoundly influenced the formation of Western legal thought and the formation of our country. That influence is clearly seen in the Declaration of Independence, which declared that "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness." The Ten Commandments provide the moral background of the Declaration of Independence and the foundation of our legal tradition.

The saving grace for the judges (one only concurred in result, without opinion) was that the background was not as problematic as the facts spelled out by the Supreme Court -- the SC did focus on intent/purpose. In effect, the SC decided that even if the display would be constitutional on its own, all that came before suggested that it was in effect a sham effort, the religious intent clear. Less blatant background here, but the clear overall concern the majority opinion had with such displays really caution against such fine line drawing.

The line drawing is surely not neutral, suggesting why the third judge only concurred in judgment (maybe not, but see below). The opinion had multiple comments of an annoyingly partial quality that put a thumb on the scales. [Topic headings are mine, rest are words of opinion.]

Interesting Choice of Law Review Citation: The Establishment Clause represents one of our most cherished safeguards. It is also one of the most heavily litigated. See Karen T. White, The Court-Created Conflict of the First Amendment: Marginalizing Religion and Undermining the Law.

Suggestion that SC Was Wrong: The language of "predominant purpose" signaled a departure from the Court" earlier "secular purpose" inquiries. Id. at 2757 (Scalia, J., dissenting) ("[T]he [McCreary County majority] replaces Lemon's requirement that the government have 'a secular . . . purpose' with the heightened requirement that the secular purpose 'predominate' over any purpose to advance religion." [The majority opinion defends itself against Scalia's criticism and also the term was used that way in the past -- as often is the case, the Supreme Court (even Scalia) emphasizes words differently depending on the situation.] ...

This discussion [McCreary County discussion turning dubious eye on Ten Commandments displays in general, and the attempt to selectively put it in among our basic legal documents specifically ... given the resolution, a central matter in this very case.] is entirely unhelpful. [The opinion also noted how the ruling was "divided" ... reminding us it was 5-4.]

Usual boilerplate: First, the ACLU makes repeated reference to "the separation of church and state." This extra-constitutional construct has grown tiresome. The First Amendment does not demand a wall of separation between church and state. ... Our Nation's history is replete with governmental acknowledgment and in some cases, accommodation of religion. [Conservative talking points alert! Our nation's history is also replete, btw, with limits on free speech, suggesting no quick First Amendment motto should be taken totally literally.]

The most egregious statement above is that "The Ten Commandments provide the moral background of the Declaration of Independence and the foundation of our legal tradition." No it does not. I was not aware, for instance, that the Ten Commandments was a political document. Likewise, where does it cite that the God selectively favored (again, there are many versions of the Decalogue) supplies us natural rights? The totally bogus/makeweight nature of this "secular" purpose is telling.

The SC did upheld Ten Commandment displays generally (wrongly -- but perhaps necessarily, at least as to older displays), but it puts a fine line on McCreary to allow this one. The private action in this case is somewhat different than the governmental gymnastics involved in that case, but it is private action authorized and furthered by state action as well. It has a "the government was reprimanded, but the net result is the same" feel that is too often seen in cases of this genre.

[As Justice Souter once noted, "[b]y allowing government to encourage what it can not do on its own, the proposed per se rule would tempt a public body to contract out its establishment of religion, by encouraging the private enterprise of the religious to exhibit what the government could not display itself." The net result here is to obtain the display struck down by the Supreme Court by other means. His opinion was a concurrence, but it was one joined in sentiment on this point by five justices, admittedly including O'Connor.]


And, in such a way the local governments ... not "The Court" ... are the ones that marginalize religion and undermine the law ... the Constitution, not the Torah. It begs credibility to suggest that the selected "foundations" are neutral or in any way comprehensive unless one's attempt is to focus on deistic foundations. After all, how exactly is the Star-Spangled Banner a basic foundation of law or government? Perhaps, the Preamble of the Kentucky Constitution (in contrast to our national one) can give one a hint:

We, the people of the Commonwealth of Kentucky, grateful to Almighty God for the civil, political and religious liberties we enjoy, and invoking the continuance of these blessings, do ordain and establish this Constitution.

But, let us not note the pig in the room. That would be rude.

Transit Strike

As to the transit strike. The NY Daily News -- my usual tabloid -- was mostly negative, especially the reactionary editorial staff putting their usual "you assholes" sensitive analysis on the issue. Seriously, the editorial board generally has a kneejerk tendency that is downright distasteful. Resident progressive, Juan Gonzalez [not the ballplayer] decided to actually note two important facts: the same law that banned the strike also banned the mayor/transit authority from altering the workers' pensions to the worse (and the money the city said it lost because of the strike makes the difference a pittance) and there was a serious claim that the MTA abused its disciplinary power.

The strike was not just some "f-u" to the City and even if I did not come from a union family, I would be troubled by the slanted feedback that resulted from it. Yes, it was a lousy time ... but this is when the contracts come up for renewal and darn if blame can be spread around -- oh look, Gov. Pataki is hard at work in New Hampshire -- clearly he was there in the final days before the strike began trying to stop such a disastrous state of affairs.

Oh look, it is billionaire Mayor Bloomberg using class warfare, saying those rich transit workers (many with pay grades circa 50K) not caring about all the people their strike -- which in the process means they themselves did not get paid at an expensive time of the year -- affected. We even have to hear about all the people walking in the "cold" ... it was in the 40s today ... some frigid weather!

[Bloomberg also went out of his way in the past to emphasize that he does not agree with those who call strikers and such "thugs" ... when the labor dispute involved police and firefighters, at least. When the transit workers were involved -- and the minority laden nature of this working class must be noted as well -- he was not so loathe to use divisive words.]

I was not really seriously affected, especially with the unaffected Metro North train supplying an alternate (if more expensive and inconvenient) means to get to the City, but I did notice that the resources provided to deal with the strike (as with Jefferson, I think it useful to have a threat like this now and again -- it reminds us of what is at stake and how fine we usually have it) was somewhat flawed. For instance, when helping someone figure out an alternate route (she too apparently was lucky enough to have one), we noted that NYC website supplying strike related information was somewhat lackluster, she noting it contained some errors. Anyway, and I realize some people were affected much more than I, we survived the three plus days.

Having the time, and the means to get there, I finally had a chance to go donate blood. I do not understand why there is no regular blood donation site in the Bronx. [My last donation was on a nifty roving donation bus ... I even was given a complimentary little bear.] Anyway, ever since I heard a speech about donating, I find it a pretty easy way to volunteer. This time of year is especially nice -- think of it as an extra gift (the gift of life ... hey, it's their line, not mine). And, making up for the delay, I was even asked to give a double dose (I have O-, a rarer, but useful, blood type). This went easy enough, though it took a bit longer, and I apparently have slow blood. Oh, they also did not have the better cookies. Oh well ... a nearby store did provide the second from last Xmas president.

I also stopped by the library ... unfortunately, it was especially LOUD. Local students decided to have a contest to determine who can say the most expletives in a library, one was apparently taking a sexual survey, and "shut-up" was screamed by the librarian a few too many times. The City was not halfway as loud.

Happy Holidays and Go Giants!

On The Reckless Executive Front

The perils of habeas filings: "A Texas death row inmate whose lawyers say is mentally retarded lost an appeal this week before a federal court because he missed a filing deadline. ... [T]he clock began ticking again when the Texas Court of Criminal Appeals issued its final judgment denying Wilson's state application on Nov. 10, 2004. That left Wilson with one business day [11/11 not counted] to refile his application in federal court. The 5th Circuit panel noted that Wilson attempted to refile his application in federal district court on Nov. 12 but said his lawyers failed to get the appellate court's prior approval, as required by federal law."

These impressions have been left, we fear, at what may ultimately prove to be substantial cost to the government's credibility before the courts, to whom it will one day need to argue again in support of a principle of assertedly like importance and necessity to the one that it seems to abandon today. While there could be an objective that could command such a price as all of this, it is difficult to imagine what that objective would be.

Meanwhile, on the reckless executive power front. Judge Posner -- taking a break from NYT Book Review articles advancing such an end, decided to write a reckless (or perhaps just liberty ignoring) Washington Post editorial that has received some negative commentary. I particularly like a reference to his "ad hoc" actions of the President aka illegal.

But, the Constitution is an annoying document, isn't it? For instance, see Hilzoy's excellent (par for the course) piece on how ridiculous (and dangerous) the claim is that AUMF or maybe inherent executive power defense of the recent breach of the law really is. Her piece arguably gives it more respect (i.e., extended refutation) than it deserves, but it just goes to show how easy it is to refute this on principle.

[I here argue against the claim that judges are more above the law than reckless executives, even without touching upon the whole "neither force or will, only judgment" line, but sometimes judges do have their moments.]

Oh, the lede quote comes from a decision by Bush Supreme Court short lister, Judge Littig, in an opinion refusing to agree to shift Padilla to civilian control. As a comment in a post explaining the decision noted, it was surely not a libertarian opinion. In the scheme of things, Padilla did not really come out better here -- the nefarious enemy combatant ruling stands and he is still in military custody.

But, the opinion might indirectly have a libertarian effect given its distaste (from the Right) of the administration's apparently fast and loose use of power whenever it is deemed convenient. One might say the opinion is sort of like one of those Weekly Standard editorials annoyed that the administration is not acting in a principled conservative sort of way.

But, the lack of principle is something both sides -- when they are honest -- can agree upon. For instance, I listened to part of a debate on recent tax cuts with the pro side put forth by a representative of the Cato Institute. He agreed with his sparring partner that Clinton was more fiscally principled, raising taxes and cutting spending unlike the current bunch who cut a bit of spending (guess who is mainly hurt) while cutting taxes [and the two are done separately, so the lie is partially hidden] in such a way that the fiscal gain is negative.*

Such is why Cheney came back from his overseas trip (did he pass Al Franken along the way? he too visited the troops) to break a tie in a tax bill. [Mike Malloy of Air America has a simply hilarious sound effect of Cheney being revived with heart paddles (CLEAR!) as well as breathing oxygen ala Dennis Hopper in Blue Velvet while he enjoys watching people being tortured. It might be over the top, but damn it's funny.]

Anyway, was secrecy and going it alone the solution? I'm unclear, first, why it has to be totally secret -- do our enemies not know we are somehow keeping track of communications? Yeah, their actions suggest total stupidity. Furthermore:

Had the agency openly sought the increased power in the immediate aftermath of the Sept. 11, 2001, terrorist attacks, "I'm sure Congress would have approved," said Elizabeth Rindskopf Parker, a former general counsel of both the N.S.A. and the Central Intelligence Agency.

By concealing the new program, she said, the N.S.A. breathed new life into the worst imaginings about itself. "This makes it seem like the movies are right about N.S.A., and they're wrong," Ms. Parker said.

Apparently, it is unclear how far Congress would have been willing to go -- Gonzo suggested they didn't ask Congress to clarify that President had the power used because it would probably not give it to them, but the suspiciousness issue is true in spades. And, FISA judges are concerned too, though an article basically polling them seems troubling. The pool is poisoned ... what else is new with this bunch?

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* Slate yesterday had a piece on how Clinton also -- in a much smaller way -- tried to argue that Gitmo was a sort of law-free zone, this time to keep out Haiti refugees. As noted by those who refute the claim that Clinton (and Carter) acted similarly to Bush (wah! he did it too! no fair!) respecting national security wiretaps, Clinton is not on par with these people.

I would add that I bet he would accept the bipartisan Senate "Patriot Act" safeguards, realizing that the net result would be a clear addition to executive powers without too much being given up -- while respecting across the board liberty concerns, especially (if) when serious allegations of his own overreaching are out there. And, I would therefore think much more of him, even if I would oppose the bill in part anyway since it would probably still go somewhat too far. He might have been a cad, but this guy is an ass.

OTOH, BC was no saint either ... but, we need to have perspective. Remember the Gore/Kerry is the same as Bush, so let's fantasize and vote for Nader (and forget all his flaws) crowd? I think they were the crowd who believed that letter written to Virginia ... Ralph Nader aka Santa Claus with his band of Nader elves.

King Kong

Note: The ID case should not be looked upon with too much disdain, since various surveys suggest that over forty percent of the population of this country in some fashion (I'd like to see an analysis of the results) accept creationism. Clearly, only a portion do so strongly, or demand it be taught in science class. Nonetheless, many more would not mind.

A local reviewer marveled at the remake of King Kong, but toward the end of his review noted that the two main male stars (human) really did not work -- one anachronistic (Jack Black), the other (Adrien Brody from The Pianist) just didn't fit the character. Okay ... when key roles (Brody is in effect the male lead, again human male lead) do not work, a four star review might be a bit of a problem. And, sorry, it is not appropriate. A split rating might be: Fay Wray (Naomi Watts) and King Kong (special effects generally) ****, the rest (other dialogue, story, acting, etc.) **.

Seriously, when things are off Watts, Kong, and some prime special effects (1930s Depression Era NYC, Skull Island -- including a great gigantic bug scene not for the squeamish, etc.), the movie is just lame. Things start off great ... the re-creation of the era of the original movie, introduction of Jack Black as a not so credible down on his luck producer (he has a decent number of almost hits on his record), and the launch of the crew to Skull Island ring true, charming hit movie true. There is even some clear foreshadowing philosophical bits that ring a bit fake, but are all in good fun in a mega-blockbuster sort of way.

And, then things go downhill. Not horribly so, do not get me wrong, since there is always Watts (guarantee nomination, maybe win) and SFX/action to fall back on. Still, the annoying young shiphand and his older/wiser mentor ... Brody totally lame (and a romance that just happens, as if required) ... a particularly unpleasant scene with the natives ... Jack Black's character suddenly not being believable any more (he has the last line of the film, which sounds soooo fake ... we need to see his character as surrendering to his reckless ambition; Black doesn't carry off the pathos for it) ... a pretty lackluster final reel (btw how do they get him back? just dragging him to the ship must have been hard!). In fact, the war planes popping up in I guess less than an hour or so is striking given recent events.

There is a lot of movie magic here. My problem is that even adventure films need a bit of help from the actors. For instance, Jurassic Park did not have GREAT performances or anything, but they also did not hurt the action either. I was able to take some of the film's thin narrative tissue up to a point, it added to the old adventure reel feel, but only up to a point. The movie can be compared -- somewhat poorly -- to the 1930s film Tarzan and His Mate. After all, King Kong fights off beasts and has a relationship with his "mate" that reminds one of that film. The SFX was pretty good for that era too ... and the natives if anything less stereotypical. And, other than the leads, the acting was nothing to shout about ... but it was better and not as bothersome.

I recommend this with a warning of its flaws.

Intelligent "Intelligent Design" Opinion

Amusing: The clip being played all over in which the President assures us (before this all came out) that all these searches we are hearing about only occur after judicial authorization is just too funny. He is in pure "y'all are the idiots for not seeing how obvious this is" mode.

I also just love this push to censure him. Yeah, unlike Clinton, it will sorta piss him off, but big f-ing deal. It's like hitting him on the head with a rolled-up newspaper and saying "bad Bush! no warrantless searches! no torture! no lying us into war! bad President! Don't look at me with those innocent eyes!"

A federal district judge declared a public school policy supporting "Intelligent Design" unconstitutional in strong and dismissive language [www.chicagotribune.com] today. Some key quotes (headings mine, quotes from opinion):

Tricky use of the word "theory": This paragraph singles out evolution from the rest of the science curriculum and informs students that evolution, unlike anything else that they are
learning, is "just a theory," which plays on the "colloquial or popular understanding of the term ['theory'] and suggest[ing] to the informed, reasonable observer that evolution is only a highly questionable 'opinion' or a 'hunch.'"

Evolution and ID as only options dodge: The two model approach of creationists is simply a contrived dualism which has no scientific factual basis or legitimate educational purpose. It assumes only two explanations for the origins of life and existence of man, plants and animals: it was either the work of a creator or it was not.

"Don't Challenge / Question: Second, the administrators made the remarkable and awkward statement, as part of the disclaimer, that "there will be no other discussion of the issue and your
teachers will not answer questions on the issue."

ID is not science: After a searching review of the record and applicable caselaw, we find that while ID arguments may be true, a proposition on which the Court takes no position, ID is not science. We find that ID fails on three different levels, any one of which is sufficient to preclude a determination that ID is science. They are: (1) ID violates the centuries-old ground rules of science by invoking and permitting supernatural causation; (2) the argument of irreducible complexity, central to ID, employs the same flawed and illogical contrived dualism that doomed creation science in the 1980's; and (3) ID's negative attacks on evolution have been refuted by the scientific community.

ID is based on shoddy evidence: As we will discuss in more detail below, it is additionally important to note that ID has failed to gain acceptance in the scientific community, it has not generated peer-reviewed publications, nor has it been the subject of testing and research.

Accordingly, the one textbook to which the Dover ID Policy directs students contains outdated concepts and badly flawed science, as recognized by even the defense experts in this case.

Oppose ID and You Are An Atheist: Moreover, Board members and teachers opposing the curriculum change and its implementation have been confronted directly. First, Casey Brown testified that following her opposition to the curriculum change on October 18, 2004, Buckingham called her an atheist and Bonsell told her that she would go to hell.

Religious Judicial Activism: Those who disagree with our holding will likely mark it as the product of an activist judge. If so, they will have erred as this is manifestly not an activist Court. Rather, this case came to us as the result of the activism of an ill-informed faction on a school board, aided by a national public interest law firm eager to find a constitutional test case on ID, who in combination drove the Board to adopt [such a policy].

The judge was appointed by President Bush (II). Per the news article linked above:

The controversy divided Dover and surrounding Dover Township, a rural area of nearly 20,000 residents about 20 miles south of Harrisburg. It galvanized voters in the Nov. 8 school board election to oust several members who supported the policy.

The new school board president, Bernadette Reinking, said the board intends to remove intelligent design from the science curriculum and place it in an elective social studies class. "As far as I can tell you, there is no intent to appeal," she said.

The opinion hopefully will caution other areas as well. Overall, it is a fine (and ultimately angry) work of judicial scholarship backed up with plenty of facts.

Jets and The President Don't Do Their Jobs

And Also: Between Two Worlds -- Escape From Tyranny: Growing Up In The Shadow Of Saddam by Zainab Salbi (with Laurie Becklund) is a good read. Salbi is the daughter of a Saddam Hussein's former pilot, supplying her a special window into his tyranny ... but ultimately survived various personal traumas to become the founder of Women for Women International, an international feminist peace organization.

My favorite line might be a somewhat uncharacteristic bit of spleen about how many Iraqis hated Kuwait, including their rich just throwing their ill gotten oil money around buying up Iraqi property and prostitutes, raising the price of both in the process. She is not usually that blunt, but her spirit shines through throughout.

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:--''I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.''

-- Art. II.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

-- Fourth Amendment

Gold Hat: Badges? We ain't got no badges. We don't need no badges. I don't have to show you any stinking badges.

-- The Treasure of the Sierra Madre (hat tip to Paul Krugman)

The Jets basically had a lost season, needing to rely on an inexperienced third string quarterback (in 1999, this worked better ... the problem was when he was hurt, and they had to rely on a last minute fill-in back-up QB) backed up by an injured Curtis Martin (finally ending his multi-year game streak last week), just one of many key players who were hurt. Nice follow-up from one or two more smart plays away from playing a Championship Game, hmm? But, the Jets aren't alone in their misery ... even among the former elite teams. After all, look at Green Bay. The Eagles have a few more wins, but after all, they did get to the Super Bowl last time, right?

Still, sometimes even bad teams have their days. [Houston finally protected a lead ... the "best of the worst" match-up will be in two weeks.] The Jets basically had three -- one win (not particularly pretty) for three of the five quarterbacks (three starters) used this season. They also had games where they simply played lousy or lousy enough. Yesterday was such a day -- when it counted, they played lousy. A penalty taking away a touchdown chance and then a fumbled snap resulting in no points at all. Letting the back-up QB of Miami get late points. And, then the ending. Ah. Such times is when my tendency to get a bit emotional ... livid ... watching sports (we all need our emotional releases) came out in spades.

The team was here before. The San Diego game where a comeback was stopped at the third yard line. This time it was stopped at the fifteenth. We can put aside that the team could easily have been down by one instead of four, but they did redeem themselves with a quick score before the Half. No, this one is as much on the coaches -- flashbacks to last playoffs -- as the players. About :80 left. One time out. First and five on the fifteen (maybe fourteenth) of Miami, after another Miami penalty (one on Fourth Down saved the Jets on 4th and 13). Plenty of time. So, four passing plays are called. The radio announcers after the first couple said what many fans must have ... think about getting a first down, not a touchdown. Oh, as I cried ... run the damn ball!!!! A rookie even had a great day running it except for a fumble (a risk ... but the QB did not have perfect luck passing either). Four incompletes.

My sentiment ... silly I guess ... at times like these is to wonder why these people have jobs. They clearly do not know how to do them. Who am I to say, right? Next thing I will be telling the Supreme Court how to do their job! Or, the President of the United States. Well, that is an easy call. As to these domestic search warrants without authorization issue. The matter is clear. The moron -- okay, asshole -- is talking about the need for security. The need for searches. No shit, Sherlock. The idea is that you need to get authorization other than your own. It's sort of in the Constitution. The process is pretty easy in this case ... not totally so, sure, but there is a REASON for that.* Domestic spying scandals in the 1960s and so forth. It was a dangerous time then too -- cities on fire. Sen. Clinton, where's your bill to oppose the burning of the Constitution?

But, the Constitution is trivial to some people. And, please do not say "conservatives" per se, because Bob Barr ... an anti-Clinton conservative with proper bona fides, was on television upset about the issue. Original understanding? Selective. Read the Federalist Papers ... separation of powers, security of the people ... the term, by the way Mr. President, is not open-ended. [As to the suggestion the Dems basically agreed to let him do it, see here. I bet it is one of those "should have done more" deals.]

It MEANS something. It means securing our liberties. Sure, balanced with order, but you do not want to face up to the balance. Instead, shades of the past as well, you complain about the press [First Amendment ... you know, the one with religion in it] mentioning (after a year!) the apparent criminal acts of our leaders. I too am a conservative, the old fashioned "liberal" sort. But, anything with "lib" in it ... including "liberty" ... is distasteful to some people.

[This failure to honestly address the issue makes conservative pieces like this seem naive. Orin Kerr seems to be bending over backwards to -- not quite successfully -- find the program constitutional. But, for instance, the implication that an open-ended authorization of force even arguably authorizes this sort of thing should be resisted. Liberties should not be taken away by vague implication. The failure to realize the fact makes the post ... and Kerr is no mindless fascist ... honestly dangerous. Take aware the hesistance, and liberty is so easily removed.]

It is so much easier, I know, to be upset at the Jets. After all, in the scheme of things, they mean only mean oh so much [besides, the Giants are doing pretty well]. But, you cannot escape it. The hypocrisy of it all. Randi Rhodes, the afternoon drive host of Air America, was on C-SPAN's Q&A program(Brian Lamb's replacement of Booknotes) last night. This woman, besides the fact she thinks Bush is a liar and so forth, is a conservative's dream. Air force. Took care of her niece after her sister died of cancer. Started off on radio in Texas (then going to Florida ... though her voice -- she's cute, but that voice is painful -- reveals her Brooklyn/Queens origins; my mom still has a bit of Brooklyn in her, but she speaks the Queen's English next to Randi) doing religious broadcasting. And, though she has her rants, she knows her facts. She is a self-taught (GED, a bit of college long after the fact) political junkie.

You can respect that. Go down the line. Al Franken. A bit of a jerk at times, but long time happily married father of two who is over in Iraq entertaining the truth ... an Ivy grad whose aw shucks Capraesque Middle American liberalism is from central casting -- daughter teaching in an inner city school in the Bronx (just like someone else's daughter, I kind of know). Rachel Maddow -- a lesbian, sure, but another brain with a tony degree who can still make nice with conservative Tucker Carlson while doing her homework. Mike Malloy -- father of I believe three (one he had David Letterman-like later in life, who is now a baby -- who sleeps as his mom/his wife produces their show) and former CNN newshand. His spleen is a bit much, but he lived his life as the sort of American of which many conservatives would be proud. But, they all know something seriously wrong is happening.

But, the Colts lost ... so, all is not lost. Can't allow them to get too cocky. I still remember the last 13-0 team going for perfection ... Denver, who was beaten by one of the various mediocre late '90s Giants teams ... they too had to come from behind, and it was stressful to near the end. Yes, San Diego ... the team that beat the Jets in Brooks Bollinger's first step in the road to nowhere ... did it, but at least that Jets' loss meant something. San Diego now had something to play for, and play they did. As did the Bears last night -- 9 degree weather and all. It would have helped the Giants a bit if they lost, but congrats to them all the same. Offensive touchdown. Who knew?

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* Meanwhile, I have had an interesting debate with someone who does not think confessions obtained by torture should be excluded ... it became an extended debate on the exclusionary rule (ER), which is well defended by the three dissenters (Stevens, with a fine opinion, partly so) in U.S. v. Leon --- Stevens shows that original understanding is not an enemy of latter day liberals, who can use it quite well for their purposes.

The debate had a usual problem in such situations -- the other person sort of talked past my concerns that the ER was necessary because sanctions on those who torture will not be enough. Why this reliance on a sort of McCain Amendment plus, when torture was clearly wrong even before? Some "we really mean it" rule will not work without the will to actually take it seriously --- where is this will? Likewise, there is a judicial integrity issue at stake too ... one referenced by Justice Holmes and others as well, since the rule was first formed (as applied to the feds) in the early 1900s!

I wonder, just how many know this? How many think it is just some Warren Court creation, not just a consistent application of a federal rule harkening back to the Lochner Era?

BS Alert!

Football: Time for Saturday football games -- and a good one from the NY Giants, in particular Tiki Barber, who broke the team's rushing record. The deciding rushing touchdown in fact was by another Giant, who might have been down, but it was a borderline call that was not overturned on review. The Chiefs blew a late lead and a chance to tie at the buzzer last weekend, hurting the Giants by losing to Dallas, but the Giants evened things.

There is a general trend in this society of distrust of experts, except when they are relied upon too much. Still, I respect the distrust, since they are often full of shit. And, this is a major pet peeve of mine. An example was a discussion aired on C-SPAN about judicial philosophy, in particular as applied to Judge Alito. Jonathan Turley, something of a libertarian, who wrote an article for Cato ridiculing the impressionist plurality opinion of Justice O'Connor in the Hamdi enemy detainee case (a sort of creative reading of the Constitution, and not in a good way), was wary of Alito.

He is too conservative, trusting the government too often, and (horrors) was a bit too much like O'Connor -- no clear judicial philosophy. You know, like Scalia -- perhaps the only one on the Court with one. In fact, Prof. Turley deemed this a requirement to be a good justice. This annoyed me. You might not like Justice O'Connor's philosophy, but she does have one -- a sort of minimalism with a clear conservative/state rights edge in various areas. She cut back habeas, joined Commerce Clause and Tenth Amendment decisions to protect state power, and so forth. A middle of the road, common law approach, however, is not an absence of a philosophy. It is just one Prof. Turley does not quite like. Still, many justices have had it.

[One woman in defense of Alito corrected someone who cited the now infamous strip search case involving a mother and child. See, it was not really a Fourth Amendment case; it was an issue of qualified immunity. A clear attempt to cloud the issue, since Judge Chertoff spelled out that privacy related concerns that overlap with the Fourth Amendment were clearly at stake. OTOH, refreshingly, another panelist accepted Alito's conservative leanings -- after all, that is the right way to lean. Such willingness to argue from sound ground has often been lacking.]

Furthermore, it is patently ridiculous to suggest only Scalia has a clear philosophy. For instance, Justice Breyer surely does -- he has a book out ("Active Liberty") discussing it! Ditto Justice Stevens, etc. You might not LIKE their philosophies ... they might not support the "clear statement" rule -- even if the Constitution clearly does not so state -- of Justice Scalia, but this is quite different from not having a philosophy.

Also, how can one be a libertarian without supporting Roe? I assume that not allowing the state control personal choices involving personal fertility and one's own body with equal protection connotations is not really a libertarian concern. In what universe? At least, some libertarians are consistent -- they support Lochner and Roe. The sorts on this panel are not. I cannot take such people seriously. Oh, and are embryos now constitutional persons? What exactly is so wrong with Roe?

There also are various misunderstandings in respect to Lochner, actually. As the moderator suggested, wanting to work more than ten hours a day is not deemed horrible these days. Many people do it. The Lochner Court in fact later allowed the state to require time and a half when extra hours were required. The case, however, was a close one: 5-4. The Holmes Dissent is the usual cite, but the Harlan dissent is more promising. Justice Harlan was a general supporter of economic libertarianism. Nonetheless, he noted that the state had a reasonable health interest (as the Supreme Court accepted for mines and other dangerous professions) in limiting the hours of bakers -- such as the inhalation of dust and so forth. Still, the act clearly had some special interest aspects -- it appears to have been at least in part passed to benefit some bakers over others. A close case in a different era, its inherent wrongness has been exaggerated.

Anyway, as to being full of shit, the Republicans have left Congress open longer -- having a weekend session -- to be able to get more on the record. The Senate even cut into Book TV time on Saturday ... it seems more of the senators that staid on were Republican. Sen. Lindsey Graham was on board, for instance, to suggest the "abuse" of the detainees is being targeted with the proper peons being punished.

The BS here is that the true guilty parties are those who carried out a clear policy to allow such treatment and to further it. Likewise, we have the usual conservatives pushing for the Patriot Act renewal whining that the dissenters are dishonoring loyal hard working public servants by not trusting them not to break the law. Why have the Fourth, Fifth, and Eighth Amendments then? Can't we just trust the government not to abuse their powers? Hey! Why are you laughing so hard?

And so it goes. Blah blah blah.

Lehrer Interview with Bush

The value of a Bush interview with Brit Hume (FOX News) is questionable, so it was notable that he also submitted to questioning by Jim Lehrer, an interview with some interesting aspects. It also helps that a transcript allows one to view the result without having to deal with listening to President Bush -- a duty I find akin to nails on a blackboard, just less benign.

Respecting to a question respecting the NYT article referenced in the last post, the President refused to discuss the matter (he justified it, however, in his Saturday Radio Address ... again see, e.g., the NYT), but noted that:

I think the point that Americans really want to know is twofold. One, are we doing everything we can to protect the people? And two, are we protecting civil liberties as we do so?

And my answer to both is yes, we are.

Of course, as I spell out here, the two matters are interrelated, and his actions violated both. Bush also clarified -- suggesting the perils of taking his words to mean what they seem -- that when he told Hume that Tom DeLay was in his opinion "innocent," he only meant in a "legal until declared guilty" sort of way. Bush also noted that unlike in the case of that "ongoing investigation," the special prosecutor himself suggested the President restrain from discussing the Plame matter. Okay, but "ongoing investigation" itself was the test set forth by the Press Secretary.

The President also clarified the definition of "victory" in Iraq:

And the definition of victory which is really an important thing for the American people to understand is that we have an ally in the war on terror, that democracy is able to sustain itself and defend itself, and the Iraqi people feel that the security forces that we've trained up are capable of defending themselves against the violent.

Pursuant to a follow-up question, he agreed this was not the normal definition of the word "victory," but that this is a different sort of war. Nonetheless, what exactly "able to sustain itself and defend itself" means is unclear. Likewise, what is the test that the Iraqi people "feel" that the forces are "capable?" Also, the first test is telling -- an ally -- no specification of said ally being secular and so forth. This is honest ... and to the degree one can take it seriously, the definition is of some value.

there was no evidence that Saddam Hussein was involved with the attack of 9/11. I agree. I've never said that and never made that case prior to going into Iraq. ... Well, I think they are related in the war on terror because he had terrorist connections, as you might remember. Again, he was a sworn enemy and he'd had weapons of mass destruction, had used them.

He and his aides, however, implied as such as to the Hussein connection by repeatedly connecting the two. Compare this as well to his comments in respect to the (few) foreign fighters in Iraq, which he connected to the bombings in Africa and so forth. In fact, nearly all of the resistance in home grown, in response to our own invasion of Iraq. And, even here, he had to connect Saddam to 9/11, setting forth relatively weak links. The use of "had" is interesting as well. What are these weapons? Where did they come from? What did his ertswhile allies do afterwards. Etc.

Anyway, the so-called "wide-ranging" interview by necessity was not too deep -- challenges to his claims and statements were brief, and the net result is a large amount of boilerplate. But, some useful comments, for what they are worth.

NYT Gets Around To Printing The News

And Also: Further coverage of the President's unilateral use of power here because of "necessity" (references to Nixon, Prof. Yoo, and the fact that the illegality of the acts were not bars) can be found here and here.

Also, the guy playing the Democratic vice presidential candidate on West Wing died. I wonder what this means for the show. How many episodes are in the can?

Remember the days of the Penagon Papers where the NYT said "thanks for your concern, but sorry, no" in respect to printing things that the government argued was a threat to national security? "Bush Secretly Lifted Some Limits on Spying in U.S. After 9/11, Officials Say" tells us about a page or so in:

The White House asked The New York Times not to publish this article, arguing that it could jeopardize continuing investigations and alert would-be terrorists that they might be under scrutiny. After meeting with senior administration officials to hear their concerns, the newspaper delayed publication for a year to conduct additional reporting. Some information that administration officials argued could be useful to terrorists has been omitted.

Prof. Akhil Amar has suggested that "the people" aspect of the Fourth Amendment suggests that even if perhaps judicially allowed in certain situations, certain particularly striking threats to privacy should only be allowed when the people at large -- particularly via juries and legislatures (Congress) -- find it "reasonable." Therefore, this article on the President's unilateral (perhaps -- the article is hazy, even after the year -- with some members of Congress being notified -- that's the key, just like in war, right?) actions is particularly depressing.

I wonder ... like the whole Plame issue, was this known before the election? How long ago was this "year?" Anyway, nice that the NYT decided we can learn about it and all. You know, the part we were allowed to read. Oh, who are these "senior administration officials" that can help papers decide not to print something? Still, it is an important story -- another bit and piece on why the administration is a threat to liberty, particularly given their unilateral tendencies.

Meanwhile, after Eugene McCarthy died, another independent voice did as well -- William Proxmire, best known for the person who replaced Sen. McCarthy and opposed wasteful spending --- a sort of 70s version of John McCain. But, as Wikipedia (and Samantha Power in her book) noted:

From 1967 until 1986, Proxmire gave daily speeches noting the necessity of ratifying The Convention on the Prevention and Punishment of the Crime of Genocide. After giving this speech every day that the Senate was in session for 20 years, resulting in 3,211 speeches, the convention was ratified by the U.S. Senate by a vote on 83-11 on February 11, 1986.

He also was an early opponent of Vietnam and was an archetype of the mid-Western progressive. His sort of public servant -- including his personal following of his campaign finance reform beliefs -- is well needed these days.

More On That "Honor" Piece

The value of the "honor" post referenced in yesterday's entry goes further than the philosophical discussion of honorable service in war time supplied but also applies to the materials linked. The LAT article on the ethical expert/colonel that assumingly committed suicide because he could not handle an unethical war ... at least one more unethical than he could handle. The British editorial chiding the U.S. for not clearly and forthrightly being against torture -- the delay, oh the timing of year (!), of the administration's support of the McCain Amendment (which with the habeas stripping bill is of questionable effect) is simply disgusting.

The excellent law review article on why torture is inherently a violation of our system of law (such a basic denial of the humanity and self-ownership of individuals) that was cited by the House of Lords' opinion against use of evidence obtained by torture. And, the opinion itself, which references time old common law principles that predate the Constitution -- foreign law that even Justice Scalia in some fashion respects when determining the meaning of "due process" and so forth. I skimmed the law review article -- usefully, the author points out key points and summarizes his main points in the intro -- it has striking stuff with application to basic questions of liberty (including questions of medical treatment). As to the British opinion, I only glanced at it -- but, it clearly spells out a "conservative" (as in time-old) opposition to torture.

But, conservativism -- true conservativism -- is not always so bad. After all, look at the piece cited by Prof. Hamilton (who believe me, I disagree with repeatedly) in the last post as well -- a conservative law professor (who supported Bush v. Gore and was Justice O'Connor's law clerk) that believes (a bit too much, imho -- yeah, who would have thought it?) in the separation of church and state. As an aside, I was once told -- by another person who also does not quite share her general views -- that Hamilton was in her view an eminently fair and very good teacher. But, given some members of my family, general respect* for people I do not agree with is not too striking. It just is that in the current atmosphere that those in power just make it seem impossible to imagine. Such is their dishonor.

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* Though I do not alway manage it, no god I, I do try to be respectful with those with whom I disagree. It often seems proper -- given how things are done -- to be disrespectful in certain media, such as message boards. Still, though some sorts seem to invite it, I find this a bit distasteful. And, believe me, no one side does it -- though, at times, you do get the idea that conservatives have a fundamentalist chip on their shoulders, and clearly KNOW the rest of the world are morons.

No need to help them out in their fantasy by being overly dismissive of them -- after all, they sometimes actually are right. After all, I do not like it when it is done to me, and who knows how often I am right, right? Anyway, a bit of fun can be had without being mean.

Brokeback Mountain

Further Reading: Bush's "War" on Christmas, Sen. Feingold's Crusade (with some Republican help) to uphold the Constitution, true American "honor" (not involving torture etc.), and Judge Alito's decisions respecting the death penalty. The piece on "honor" is especially a must read.

It is pretty appropriate ... though I first noticed it while looking at the credits -- that the "gay cowboy movie" has a screenplay by Larry McMurtry -- known for his Westerns. In fact, it is just one notable thing about Brokeback Mountain other than the plot. The homosexual nature (played by heterosexuals -- of course) of the leads sure will give the movie it's cred, but the reason to see it is the writing, directing, and performances. Perhaps, not exactly in that order. And, though Heath Ledger (one of the two gay cowboys) deserves his surely likely Oscar nomination, the performances that really stand out are the supporting cast. Gyllenhaal (Jack Twist) is good, but the others really stand out. After all, the movie is not about them, right?

All the leads -- counting the wives (one will get a supporting nod*) -- have been in lighter teen fare, including Heath in 10 Things I Hate About You (good soundtrack, amusing Shakespeare knockoff). They have shown their acting props in other more serious movies, but Heath and Anne Hathaway (Jack Twist's wife) might just have had some eyes turned here. Anne Hathaway has the smaller wife role here, but has been in less drama than Michelle Williams. Reports suggest Anne specifically chose another explicit role (apparently not shown here yet, but out on DVD) to change her Disney image (ironically, something past co-star Julia Andrews also did). I guess those were her breasts in this movie. Oh, her perf was excellent (ice queen with signs of humanity underneath) too.

Just one of many. Michelle Williams is excellent as a crushed wife, who finds out she is not her husband's true love. Heath Ledger's on screen daughter (teen years) is well played by Kate Mara, Linda Cardellini as a spurned love interest with a great closing line ["Ennis, girls don't fall in love with fun."], and even Roberta Maxwell (who once played Mercy Otis Warren, of Revolutionary War Era fame) as Twist's mom. Oh, yeah, a few of the supporting guy performances are good too -- but yeah, the key ones are women. And, they repeatedly make the movie not just about the two leads. Whose story alone is well worth seeing, but good movies are not just about three word summaries.

So, I reference these people as well. Anyway, though a few moments might be said to be specifically "gay," the movie is not really about gay cowboys. Cowboys, sure -- that is important, and thus the screenwriter. One thinks of the movie Walkabout at some points, including the contrast of the open range and the constrictions of society (ah metaphors). But, forbidden love, apparently obligatory life choices, some great characters, and overall "making do" also are included in the mix. Probably something else too -- not really period drama though (c. 1960-80). And, two gay cowboys only serve as media here for these plot devices. Since all of them come off rather well, this is a movie to see.

[Plan to see the wardrobe and ape movies too -- more later.]

I watched House -- the Fox medical show about the misanthrope chief surgeon -- again last night. Laid on a bit thick, but it is worth a look -- one of the few that are. It helped my favorite Sex In The City gal, Cynthia Nixon (who I also saw in a play on the string theory -- really, it was more of a metaphor -- a while back) had a guest appearance. Apropos to this post, Cynthia is now going out with a woman. Last I checked.

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* Might be wrong, but there never seems to be too many women roles out there that are noticed by those who nominate, and this is sure to be a multi-nominated movie that came out in December to boot. Seriously ... Heath Ledger, who has not been in much lately ... earned his salary big time here. Oh, yeah ... both wives have topless shots, while the male nudity (except for a butt) is seemingly purposely shown only in wide shots. I am not really complaining, but this calls to mind a long ago report I wrote about double standards in the cinema. I know -- it's about their emotions etc. -- not the cock. So, why the boob shots?