Bush Court Begins

And Also: Received a few free lottery coupons in the mail recently, two free $1 instant scratch-offs and various buy one/get one free deals. I gave the latter to someone, while winning $6 ($1/$5) with the former. Not bad: boiled down to two free coffees, two newspapers, two pastries, and a bottle of detergent. Also a laugh. On the back of the tickets is the number of a help line for those addicted to gambling. A proviso is added that it is not a "results line." Scratch offs make good filler for birthday and holiday cards. OTOH, the big money games are a bit of a joke. "A dollar and a fantasy" is more like it ... my philosophy is play or not play, the chance of winning is statistically about the same. Also, enough with those commercials ... certain numbers (like 13) speak out. A bit creative, but getting tired.

It is right proper that Justice O'Connor retired today. After all, her help was particularly important in determining who would give the SOTU today. Some suggest we all should forget about that little bit of assistance ... get over it and such. Sorry, some of us have problems with that. A bit touchy about stolen elections and corrupt Supreme Court decisions. By chance, in fact, I was in the same place when the votes stopped being counted and 9/11 happened. Not quite the same thing, but ... as things turned out ... intimately connected all the same.

[I caught about sixty seconds of the SOTU before I had to turn the lying ... well, I am too young to have a stress attack or something. After suggesting he had to break the law to catch the 9/11 hijackers -- the problem was of course analyzing the information already obtained legally -- he mentioned that the U.S. could not be isolationist. Too much. This from the guy who went it alone without the U.N., is wary about international law, international treaties, and probably most countries outside of Mexico. Oh, yeah, he threw in a bit about defending our values. Quite important, I agree. Want to start doing it anytime soon?]

But, hey, I am will to get past it. Sandra should not be judged solely for that day -- she was the swing vote other days too. The day Roe was upheld ... when college based affirmative action was deemed constitutional ... various cases involving the separation of church and state, and so on. Sure, she had other days when I was less than pleased.

But, hey, she was after all a Reagan pick, a conservative party faithful sort as well. In fact, I think that day in December, another day that will live in infamy (let them count the votes Sandra, maybe your guy would have still won ... but, hey, can't take the chance ... sort of like that wiretapping, maybe), she reverted to the days when she was the state co-chair in the campaign to re-elect Nixon. Probably just a bit confused of where she was, that's all.

Anyway, I think with Alito many would join those who will miss her being on the Court. It is not a matter of the best possible choice, but what we got. And, especially given the possibilities, I am a bit less upset at the SC of my generation than some are. This from a critic. The final vote for Alito was 58-42, four Democrats voting aye, one Republican (Chafee, a moderate [though reportedly less principled than his father] due to have a hard race for re-election) voting nay. More evidence that the Democrats actually believe in a bit of dissent, while the Republicans vote in lockstep. Remember, the exception proves the rule, multiple exceptions make it a bit less a clear-cut deal.

The former is in a sense a good thing, though at times, a united front should be possible. Anyway, a historically close vote, and a bad one. It might not be the deciding factor, but when a key justice of the Supreme Court only gets on board for a lifetime appointment by a party line vote, something is wrong. It bears repeating, since people continue to deign to forget it, the last time a Democrat President selected two justices,* the President went to the minority party and heard their concerns. And, chose from among those with bipartisan support. That is why the votes were lopsided. This is so even though they honestly stated their stance on abortion ... of course, a Clinton pick was likely to be pro-choice, but darn if they actually were upfront about it. Such is the true "Ginsburg Precedent."

Clinton, for instance, voiced some desire to pick Secretary of Interior Babbitt for a seat. Interestingly, Babbitt (D) as governor appointed Justice O'Connor (now Sandra Day O'Connor) to a state appellate judgeship. Anyway, Babbitt perhaps would be a sort of Democrat O'Connor, supplying a state eyed view with a touch of environmentalism as well. "Nah," said the Republicans. Clinton, the courts not his first priority, decided to move on. The Republicans thereafter blocked over sixty of his lower court nominations once they regained control of the Senate, supplying many more slots for Bush to fill. No "up or down" votes all the time for them. The push for a "fair" vote for lower court judges and Alito this time around therefore reeked of hypocrisy.

Ruth Bader Ginsburg and Stephen Breyer were not controversial picks -- Ginsburg had a record as a centrist on the court of appeals and fought for that controversial area of law, women's rights, while Breyer had a history of working with both sides in his various legislative dealings. Likewise, his experience working with the legislative branch made him a good choice for Senate confirmation. Surely, they were liberals, though their opinions on the Court suggest moderation.

The Sandra Day O'Connor bio highlighted the point -- Breyer was someone O'Connor could work with, and his vote against one of the two college affirmative action plans reaching the Court a couple years ago suggests but one reason why. The b.s. that these two are radicals is just that. This bears repeating, even if it is obvious, since the other side repeats their misrepresentations, half-truths, and lies over and over and over again.

A final word on the failed filibuster. First, Sen. Kerry, who helped lead it, had some good floor comments ... passionately spelling out why Alito is a bad pick. The filibuster had an afterthought taste ... it should have been part of the plan all along ... but Kerry deserves a nod. Second, I do not accept the cries from the left blogsphere and such that we need to move on. Yeah, we do, but the cries came way too soon. I mentioned that the Daily Kos basically announced defeat even before the weekend. Then, last night, I even heard Sam Seder of Air America -- who was at the forefront against Sammy A-Lie-To (aka "Strip Search Sammy") take a similar stance.

We put up a good fight ... be proud (that barely half of the Dems voted against cloture, a few who did beforehand saying the whole thing was silly) ... but it is time to move on. The grassroots must have the passion of religious fervor to work so hard for such a result. Also, one needs a bit of time to mourn and vent. Can't the "time to move on" business at least wait until after the final vote?

Anyway, with Alito sworn in, today is truly the first day of the Bush Court.

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* It is often not emphasized, but one confirmation did somewhat shift the Court, the replacement of Justice Byron White. Though a Democratic pick, White was often on the conservative side of many issues with the exception of racial/sexual equality (his final dissent involved race-conscious districting and Ginsburg noted he even voted with her cause when draft was involved) and contraceptive cases. He also supported some father rights cases, including writing a dissent dealing with the right of an illegitimate father to determine his paternity.

White dissented not only in abortion cases, but in other privacy cases such as one involving a grandmother not allowed to live in a particular area with her grandchildren and also wrote the dismissive Bowers v. Hardwick opinion respecting homosexual sodomy. Still, he had some highlights, including a dissent involving nude dancing and a majority opinion responding to Justice Scalia comparing the Court's use of the Lemon Test to a horror movie monster rising from the dead (referring to Scalia's night at the cinema).

His respect for precedent did temper his support of the new breed of conservative, but Ginsburg clearly is more liberal than he. Breyer/Blackmun was more of a straight up trade. It is worth mentioning certain progressives, including Nader (less offensive at the time), were wary about him.

Sandra Day O'Connor by Joan Biskupic

And Also: I looked over Chris Mooney's book, The Republican's War Against Science. This is a continuing story, most recently involving pressure on a dissident NASA scientist, suggesting looking at individual examples in a vacuum is ridiculous. These people deserve no benefit of the doubt. Anyway, I found the book a bit heavy going, though the story reported is a very important one.

[I am with TPM on this issue. In the end, since they helped make it of no value, they voted against cloture. Darn courageous! Thanks as well to the Loser 19 who handed President Bush a big fat kiss, ending cloture, opening the way for the final vote on Judge/Justice Alito on the morning of the SOTU. RSVP Ms. Alito! No crying. Note that right after cloture, some Republican asshole railed against the partisan/divisive tactics of Sen. Reid and company.]

Since Justice O'Connor will be stepping down momentarily, it might be useful to say some more about Sandra Day O'Connor: How the First Woman on the Supreme Court Became Its Most Influential Justice by Joan Biskupic. It was a generally straightforward medium length bio that provides some interesting insights and background information on the woman and justice involved.

The author interviewed eight of the nine justices (this is before the Roberts confirmation) ... the notes reference interviews with seven, but probably the very private Souter (subject himself of a biography, perhaps a bit too soon) was the holdout. Such interviews provide an interesting insight into the justices themselves, such as comments from the like of Stevens and Thomas.

The book provides a look at Sandra Day/O'Connor's early years and ultimately provides useful insight in the complex issue of "qualifications" of nominees. Ms. Biskupic notes that confirmations of justices involve various factors, including current political dynamics, putting to bed the lame argument that it is just about the bare "qualifications" of the nominees. [The "spin" put during the nomination process also is shown here, including downplaying more controversial aspects of her background, such as support of abortion reform legislation.] Furthermore, qualifications are complex matters, not solely a reflection of judicial experience and legal knowledge.

Sandra Day O'Connor is a clear case in point. First, it is useful to remember she was an affirmative action baby. President Reagan might have chosen her personally because of her personality and background (her connection to CJ Burger did not hurt), but he promised earlier that he would pick a woman. O'Connor noted this herself when Justice Scalia railed against preferences -- "how do you think I got my job?" This helps explains her policy of being wary of racial preferences, while still supporting them in various instances.

O'Connor was an appellate judge in a small Western state ... her legal position was not really her major qualification. But, her background did supply various qualifications, perhaps a bit reflective of those of Harriet Miers. First and foremost was her experience in all three branches of state government, which clearly is reflected in her jurisprudence. Also, her political background and experiences was an important factor as well.

Actually, traditionally, big names in state politics often were seen as ideal justice material. Some argue O'Connor has been too much of a "legislator" on the bench, but real life experience in state politics and government is quite useful when deciding many cases. And, her centrist/minimalist approach (less so in some areas) is also in no way unique over the Court's history. Finally, her personal history, including being raised on a ranch, denied a job because of her sex, thriving anyway, and so on factored into her jurisprudence. It might also be noted that she also experienced small time law practice, including a few criminal cases, and being a federal bankruptcy trustee.

[The book suggests the various philosophical life choices professional women use to deal with life's difficulties. O'Connor used a more traditional approach, suggested by a statement made at an early political event in which she stated: "I come to you tonight wearing my bra and my wedding ring." She is one tough cookie with a no nonsense philosophy, but was willing to be more feminine and in various public statements noted the importance of family in her life. But, she could only do that because her husband and family were willing to support her in ways many women find impossible.]

As to abortion, O'Connor did support reform legislation in Arizona before Roe v. Wade, legislation that never passed. As with her support of the ERA, her policy was to move on from such support when it was controversial and a lost cause. Though she was a party faithful, including working for the Nixon re-election and Rehnquist nomination, she was at heart a conservative centrist. And, this was reflected in her jurisprudence as well. It suggests the point we have reached that Democrats use her as a model, but it also suggests how conservative a justice like Alito (or even Roberts ... who Justice Scalia himself notes in the book is more like himself than O'Connor) truly is.

Anyway, the complex matters involved in the abortion area is reflected in the book. For instance, when the Arizona reform bill was in the air, some ministers and rabbis made a statement: "We firmly believe in the ethical and moral rights of a woman over her body in making such deeply personal choices as whether or not she will have a child. Arizona's [anti-]abortion law abridges this right."

Likewise, consider O'Connor's own statement in her confirmation hearings: "I have indicated to you ... my own abhorrence of abortion as a remedy. It is a practice in which I would not have engaged, and I am not trying to criticize others in that process. There are many who have very different feelings on this issue. I recognize that, and I am sensitive to it. But my view is the product, I suppose, merely of my own upbringing and my religious training, my background, my sense of family values, and my sense of how I should lead my own life." And, this is why in Planned Parenthood v. Casey this deeply personal moral decision was left to the individual woman.

This also suggests the complexity of "religion" and morality overall. In her memoir of life on the Lazy B ranch, she discusses her father's religious philosophy thusly: "[W]hen you watch the world around us and see how the earth orbits the sun and how the moon orbits the earth, and see the laws of nature work, you have to believe some power beyond us has created the universe and has established the way nature works.... And we don't have to go to church to appreciate it. It is all around us. This is our church."

Maybe, a bit ironically, Al Franken refers to his own dad's religious views in a similar fashion. Likewise, leading a moral life and doing God's work to O'Connor was not just going to church or the like, but public service overall. [Biskupic notes O'Connor was further inspired by a particular professor at college with a similar philosophy.] Or, as Franken's dad might have said "to do justice."

[An influential professor was influenced by Henry Burton Sharman, a theologian who developed a philosophy of individual responsibility based on the life of Jesus, analyzing the gospels for what he deemed scientifically possible and a model for individual ethics and behavior.]

The book also provides various behind the scenes insights of her time on the Court. For instance, though some suggest Scalia played the role, O'Connor in the author's view was Justice Brennan's real competition. The epigraph of the book cites a personal note to Justice Marshall that justified a compromise opinion that was not quite what he would have liked to write because "Sandra forced my hand by threatening to lead the revolution."

In public statements, Justice O'Connor unconvincingly downplayed her importance, noting she was just one vote of nine. In fact, she was among the most passionate of the justices in defence of secrecy, including involving retired justices releasing their notes to scholars. Her style, especially in her book on The Majesty of the Law might sometimes be rather bland, but her ultimate importance in the law's development during the last quarter of the century is clear. But, as she cites Justice White saying, the truth that the change of one justice alters the Supreme Court is atypically true in her case.

The book also comments on her fight against breast cancer, which she did with her usual guts though it was one time when her usual cool was seriously threatened. O'Connor also was always busy, often by traveling overseas to promote international comity among the nations respecting the law. Thus, along with Justice Kennedy (as compared to Scalia and Alito, except in very limited areas such as interpretation of treaties), she was sympathetic to some recognition of international law and what other nations might be able to teach us.

Recently, she was asked her highlights among her opinions. As is her wont, O'Connor preferred not to choice a specific one and did not think any necessarily would have lasting significance, but did upon a bit of though cite her Hamdi plurality, which included the statement: "It is during our most challenging and uncertain moments that our nation's commitment to due process is most severely tested and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad." As she noted, "that may point [us in] a useful direction."

After her retirement announcement, she cited her favorite poem,* which fits her preferred image of herself:

Take a bucket, fill with water,
Put your hand in, up to your wrist
Pull it out, and the hole that's remaining
Is a measure of how you'll be missed.

The moral in this quaint example
Is do just the best that you can,
Be proud of yourself, but remember,
There is no indispensable ... (pause)
woman.

Agree with her or not, O'Connor did her father proud ... as a favorite professor counseled she went "out into the world and [did] something."

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* "Indispensable Man" by Saxon White Kessinger. Thus, she slightly changed that last stanza.

An Opening For Democrats: Business Policy

And Also: Joan Biskupic's Sandra Day O'Conner bio is workwomanlike, much like its subject, and supplies some interesting perspectives. For instance, her battles with Justice Brennan. I expected a bit more somehow, but overall, it is worth a look. As to NY, what in the heck is the reason for no longer taking the W-2s with the tax form, instead requiring yet another form to be filled out (plus one for interest)? Is this some sort of paperwork creation act? A push for more e-filing? Makework for CPAs? HB Sis ... your cats are fine.

NYT had a few economic policy pieces today, including the desire of businesses that the government take over some responsibility of various worker benefits, and plans by President Bush to take some further steps in his health care policy. This apparently would be to have a special interest laden measure that is carried out in a noticeably shoddy fashion, thus harming various needy groups in the process. I reference the Medicare business.

Uh huh ... this underlines the broad potential progressives have in seizing the moment and gaining the support of the business community. It might seem on first blush that said community likes the conservatives, since they bring less corporate taxes and cuts in regulations that are useful in the safety the you and me. But, such matters only are useful up to a point, especially by those that realize the diminishing returns of mismanaged fiscal policy. Furthermore, again, business has realized many things that progressives favor are in their best interest or seem to be. Consider the support by big business of affirmative action.

For the rest of us, if health care costs and so forth are a great concern, do you really want this bunch to handle them? The traditional agreement that Democrats (partly via control of at least one house of Congress) will deal with domestic matters, Republicans foreign policy (surely, this in itself is not going completely well, but one step at a time, perhaps) these days sounds more and more the best policy. Proper use of government programs and such just is not in the skill set of conservative/radical Republicans, except (in theory) when military matters are involved.

Fears of gay marriage or scorn of some dweebish looking Dems (as compared to the likes of Sen. Homophobe and Rep. Conspiracy, I assume) notwithstanding.

[Frayster "run" (an expert, who would make a good talking head) over in the Slate Moneybox Fray has ongoing economic tutorials that in part discuss this point. Our economic well being in a world economy is based on ensuring our own companies have a comparative advantage. Sound fiscal policy, including in the area of benefits such as health care, is essential here.]

What do you stand for?

And Also: A thank you for a reply respecting my query concerning my blog being on the blogroll of a conservative leaning candidate for Congress. A member of his staff mentioned that he placed it there to supply another point of view, both as to my region and my overall philosophy. My regards.

Neither let us be slandered from our duty by false accusations against us, nor frightened from it by menaces of destruction to the Government nor of dungeons to ourselves. LET US HAVE FAITH THAT RIGHT MAKES MIGHT, AND IN THAT FAITH, LET US, TO THE END, DARE TO DO OUR DUTY AS WE UNDERSTAND IT.

-- Abraham Lincoln at Cooper Union (1860)

What is the duty of the Democrats in the Alito matter? We need not concern ourselves with it anymore says Armando over at the Daily Kos, you know, Mr. "The Supreme Court Is Extraordinary." Like a fan who leaves in the Ninth Inning when the team is down by a couple runs, he has thrown up his hands, writing postmortems. It bears wondering if those on the fence, the number of which surely is not most obviously impossible [apparently, even non-votes will be enough ... sixty actual votes perhaps necessary for cloture] to speak of defeat days before it occurs.

Surely, not as a fait accompli. But, again, pathetic loser mentalities is endemic to the party and its supporters.* We gave it the good fight ... well, not really ... but we don't have the votes. etc. I ask those on the fence, bluntly, "Why are you Democrats?" After all, one can be a Democrat and live in Red or Purple America ... one can be a Democrat while being a war hawk or a supporter of a strong executive. But, some line must be drawn. The Republicans ... including Arlen Specter who the last time we had a swing vote situation with a controversial nominee (unless its the beard) was not only against the pick of his own party, but was a strong voice in the defeat ... are sticking together for party unity and power.

What is your principle? Hope for some crumbs from the Republicans? Sell out your principles for a bowl of pottage, perhaps? I refer to Esau selling his birthright to Jacob in the book of Genesis. But, perhaps, you say you still have your principles. Principles that do not require you to always oppose the President, etc. Such strawmen. Ah, again, where is the limit? Presidents should have their druthers in key Supreme Court picks ... and all other realms of executive power, I assume. This includes those that are known to be strongly opposed to basic Democratic principles such as strong civil rights protections, or even the very ability of the Congress to pass national legislation to deal with current problems.

It is strange to hear someone as gung ho about Senate privilege as Sen. Byrd supporting someone who is willing to negate such privileges in support of the so-called unitary executive aka royal kingship. Some suggest he fears re-election, though others point out that he really has no fear, given his long service and delivery of pork. Is his grand knowledge of history lacking to the degree that he is unaware of the ideological opposition to nominees throughout the years?

But, some do somewhat more legitimately fear sticking to their party's principles because of membership in Red State caucuses and so forth. But, said states voted for them in part to have them promote Democratic principles. And, simply put, judicial nominations are not known (other than atypical ones such as Thomas) to be such a great factor anyway.

[Some point out that heck Bush will only appoint another Alito clone. But, fight has been successful in the past, even without reminding one that Kennedy replaced Bork ... one might not like the guy, but Lawrence v. Texas will stand for the principle nominees by conservative presidents are surely not interchangeable.]

Finally, surely the people will forgive a small move toward principle, especially since Alito is likely to be confirmed anyway! Need they instead not only sit this out, but actively push against the party faithful? For what end? Just what do you stand for? This constitutional moment will help us find out.

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* I find it simply pathetic that we have to almost beg even the more partisan among us to show a bit of backbone. This leads to exhaustion of effort for nearly nothing. A sad state of affairs exists when we are supposed to be not only gleeful at crumbs, but scorned for being angry when we are denied them. After all, the other side is worse! Not to be melodramatic, but starve me long enough, and this does not convince. I rather be a bit more hungry while retaining my respect than have my stomach growl while groveling to the other side. How sickening.

Stay Loyal or Else

Bankruptcy Case: I asked someone in the business about the recent SC decision and he noted: "Katz is an important and interesting case, although it's probably a little soon to say how the decision will effect bankruptcy cases. Bankruptcy attorneys should be pleased with the ruling. Directly, I don't think there are all that many preference actions against state agencies, and to the extent that such cases are pending, the case holds that a preference action against state agencies is not barred by sovereign immunity, so they shouldn't be disrupted. The more interesting thing about the case might be its further-reaching implications for state agencies and how it might be applied on other bankruptcy issues."

One thing that disgusts me about the Bush Administration is their rejection of true honest and open debate. They are so darn right, but demanding openness is a threat to their right of rule. Demand it and they will not be able to properly do their job, be able to have open and honest debate behind the scenes. Experience shows that they cannot do their jobs properly -- one might feel differently if it was otherwise. It also shows that secrecy furthers their incompetence, criminality, and ability to mislead. This petty business (covered by Talking Points Memo) about removing Abramoff pictures from websites and such is just a small example.

I have little more than disgust and disdain for this policy. I am willing to openly voice my opinions, some of which are different and controversial. I will debate them and put them up to challenge. Sure, I am not the President of the Free World, but I thought the guy was a straight shooter sort. An average guy for which such comparisons can be made. He is not. He is a petty bully whose minions -- following his lead since he was an "enforcer" in his early days -- punish those who go off the reservation. Ah, I am anti-Native American.

This treatment of top critics is one of the many woefully underreported and known by the average citizen problems with this criminal and tyrannical administration. The likes of Paul O'Neill suggest that being a member of the conservative elite is not enough to protect someone, nor is expertise and moral judgment. Surely not.

A useful essay on the overall principle at stake was written by someone who should know, a young heroine that paid for her ethics: "A Legal Defense of Russell Tice, the Whistleblower who Revealed the President's Authorization of NSA's Warrantless Domestic Wiretapping" by Jesselyn Radack. In part:

In a January 9 letter, an NSA director conceded that Tice had "every right to petition Congress for a redress of grievances," but insisted that "neither the staff nor the members of the HPSCI [House Permanent Select Committee on Intelligence] or SCCI [Senate Select Committee on Intelligence] are cleared to receive the information covered by the SAPs."

This assertion was quite odd in light of the White House's claim, in defense of the warrantless wiretapping, that it had given more than a dozen classified briefings on the program to the very Congressmen who led these committees.

She also summarizes her own experience, linking to a fuller account (see also the link supplied above by an independent source):

I can certainly sympathize with Tice's situation - for I know full well the costs of speaking one's conscience. As I described in a prior column for this site, as a government ethics compliance attorney, I blew the whistle on the government's refusal to honor American citizen John Walker Lindh's constitutional rights. Specifically, I advised the Department of Justice's Criminal Division not to interrogate him without his lawyer, and when the FBI did so anyway, I advised that the interview should be sealed and used only for national security and intelligence-gathering purposes, not criminal prosecution.

In retaliation, I was fired from my subsequent private sector job at the government's behest; branded a "turncoat" in the New York Times by anonymous government officials; placed under criminal investigation; referred for possible discipline to the state bars in which I am licensed as an attorney; and put on the "no-fly" list.

A handful of Democrats need to have the courage of their convictions and support Sen. Kerry's forceful cry for a filibuster. Some fear that they will only lose, getting nothing from the enterprise. [A few note the party just took to damn long to have a concerted effort ... sure enough.] Some suggest they think if they do it, the few top Republican senators who have made it known that Bush crossed the line on the issue of the day will not let the Democrats have a real part in the upcoming hearings. As if. Surrender and you think they will hand you anything of note?

Sheesh, at least Sen. Byrd folded because he feared his re-election chances (is he really at risk? his pork supply not doing it anymore?), not because of fantasy. Anyway, making a stand has its own rewards. Heck, I really also think it will have political ones -- if the Democrats do not look a gift horse in the mouth. Or, something like that.

I guess doing the right thing is not enough, huh? Only enough for peons like Jesselyn Radack and conservative sorts like Russell Tice, who staid honest to their ideals. A non-partisan matter btw. One might hope.

Hamas Wins ... The Complexities of Religion/Democracy

And Also: I find it hard to totally avoid the concern of many that the "MSM" (I am growing to hate that term with its oh so precious dittohead sort cant it implies) is biased in support of the current powers that be when things like this are put in my face. Well, there are the '06 and '08 elections ... oh wait, this is the press. Prediction: when the Democrats do regain power, the press will go into Clinton mode once more. No liberal bias!

Hamas won -- apparently surprisingly so -- parliamentarian elections. Though not quite as exciting as the chance that a Conan O'Brien look-a-like (a woman to boot) might win a run-off election in Finland (seriously ... this has been an ongoing bit on the show), this was shocking to many people. Including the Bush Administration, who leaned toward the prevailing wisdom that the Fatah Party (the long dominating group, Arafat's party) would win once more.

The elections seemed to be fair, a clear democratic message of what the people wanted. This, not surprisingly, leaves a bad taste in the mouth of some, who apparently think democracy means that the people will only vote for people we like. For instance, the idea that "democracy" in Iraq is "secular" (ironically the Bushies support this ... do what I say ...), when it need be nothing of the kind.

Seriously, it is ridiculous to think otherwise given the push to recognize the religious beliefs of certain groups in our own country. A certain sort of constitutional democratic republic might require otherwise, but that is quite different from "democracy" per se. It is sad and pathetic that people miss the point over and over again. And, on all sides -- anti-Bushies too, cynically noting the Shia-dominated religious flavor of the "democracy" we fought and die for. Yeah, the same sort of blood that led to the likes of Tom DeLay and "Duke" Cunningham, right?

But, not that I have been keeping close track of the matter, it is really of no surprise. Yes, the Hamas is a radical group known for its anti-Israel (as in Israel's existence) beliefs, but also for its clear efforts to meet the social welfare needs of the Palestinian people. This surely does not justify blowing people up, but it must be faced: the Hamas in various communities was seen as the purer party, the one that was less corrupt (partly, since it did not have political power to abuse) and more able to serve the needs of the people themselves. What exactly this will wrought -- and remember the opposition still has the presidential position -- is unclear. But, it might just work out better, partly since terrorism is more of an outsider game. Yeah, I know ... only up to a point.

This is comparable to the sad reality that radical religious sorts served as the only real opposition to corrupt leaders in the Middle East overall and continue to do so in various areas. Iran in the 1970s, etc. One might even compare this election to the chose of Sharon, who many felt was too radical, but as someone who had the guts to act. Pardon me if the comparison is inexact, but truly, it comes to mind. Finally, how about the Christian Coalition in our own country? Push comes to shove, even your average fundamentalist or evangelistical Christian might not agree with the moves of this group, but it provided a useful counterpoint to the scary changes of the post-1950s Era. In some sense, the support had clear grass roots support. Democrats sneer at it at our peril.

It is an inexact bridge, but I return to an aside made last time. "Religion" is not somehow a cost-free good. In fact, it is quite troubling in various respects, since at its base is faith in things that need not and often cannot be backed up with scientific proof. Religion also is not just some how cabined in matters of belief in a supernatural entity or the afterlife.* Religion ... though some can put things in separate boxes ... is ultimately a "way of life," not just beliefs about the afterlife or supernatural beings. And, this way of life is in various ways based on faith. Faith can and is a remarkable thing, but it also is a scary thing too. This includes the ugly side of the whole matter.

The alternative, however, is impossible to bear. There is no group of Platonic Guardians who will choose what faith and beliefs are right and proper. And, the good of religious freedom is shown everyday. But, I do find it a bit interesting how this is one of those things many are wary of mentioning, except perhaps certain freethinking groups and such (a rather lifeless example was on Book TV recently) or in respect the "wrong" sort of faith and religion.

Ah, but democracy is a bit more messy than that, huh? [As to the possibility of a "Catholic Supreme Court," this thread might be of some interest.]

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* This includes the established belief in this country that there is a God and said God is intimately connected to our very nation's existence and well being. For instance, note the recitations by school children on a daily basis. But, and the fact over 40% in various polls support the fact of creation science is another thing many wish not to accept is just one example, common beliefs about such "God" are in varying degrees outrageous.

I fail to see how we can cabin such beliefs only in this one area, somehow not also affecting other sorts of decision-making. After all, those who believe in the healing powers of crystals because of some sort of nature religion dynamics are likely to also believe in some somewhat unlikely non-religion things too. This putting aside my ah belief that "religion" is a broad term, involving basic truths and how we live them out in our lives that affects a broad range of matters.

Again, we have to be honest about such things, but (especially with my broad definition) this does not mean religion per se must be shunted aside.

The Radical Tyrant

The Matador: Pierce Bronson (a gem of a role) plays a troubled assassin who befriends a businessman (Greg Kinnear, giving another good performance) while both are dealing with personaland business crises. Hope Davis and Philip Baker Hall supply appealing support. Bronson steals the show, but overall, a mature movie that deals with serious themes in a charmingly twisted fashion. Interesting notice about the portrayal of bullfighting was included in the credits.

We live in troubled times. Times in which the Constitution is spit upon by our President. He is not a conservative, but a radical that is unsurprisingly (radicals usually are) quite sure of himself and his use of power, while dismissive (and deep down, afraid of) dissent. The national security -- how symbolic -- warrant issue is just a symbol. The nomination and pending confirmation of Judge Alito just an important constitutional moment ... even for those who fail to respect the fact ... that takes special meaning at this specific moment. But, the truth is clear. It is hard to avoid, especially when those involved almost smack you in the face with it. But, some still deny it. You can about as easily deny the wind.

President* Bush had a press conference today. He reaffirmed that he denies that he broke the law. "The law" being what he thinks it is. The state, it is him. FISA? Well, that was an old law ... almost twenty years old. We live in different times. Yeah, unfortunately, we have a tyrant as our President not just a well meaning one that had some problems. As I said ... a radical. Someone who radically disrespects the law and the fundamental law as well, the Constitution for "the present" ... this is no conservative move. This is a so-called "neo-conservative," which means in this context a fake one. Conservatives like Bob Barr know just what is going on and are willing to voice dissent.

[I reaffirm the literal pain that comes when I actually hear this guy talk. That little sneering laugh especially is hard to take. Some people respect this guy. I do not even know how one can even listen to him.]

The President says the times are different. This does not mean a lick. FISA was amended ... not to include what he is claiming the power to do ... but it was amended. Ah, what about AUMF ... the authorization of force. Under his reasoning, as applied to al-Qaeda and their possible assistants (remember, those who oppose Bush in an "unreasonable" way give "aid and comfort" to the enemy ... his words, not mine), the Patriot Act was unnecessary. Anyway, a Republican (one of the so-called Gang of 14 ... who announced his support for Judge Alito ... another Republican bootlicker) senator proposed a limited amendment. Again, less than suggested here.

The President's point person did not just say that it was unnecessary, but it was deemed possibly UNCONSTITUTIONAL. In other words, they lied. It is wartime ... telling the truth is so like yesterday. Clearly, they lied -- they thought it clearly constitutional, in fact were and continue to do more. The reasoning, though they do not trust the people enough to clearly and honestly say so, is that actually debating the point and giving the President clear authority would aid the enemy. This is so even if Congress was in close session as was quite possible. It was true even if the actual contours of the spying (though one announcement -- for what it is worth -- suggested it was nothing special) was not publicly directly addressed. After all, FISA is a SECRET court.

We live in a democratic republic. President Bush said that FISA is obsolete in these times. The Constitution was not obsolete in the days when Germans blew up shipping in the sight of our shores. It was not obsolete when rebels, now glorified by many Bush supporters, were at the outskirts of D.C. and Oliver Wendell Holmes Jr. alleged told President Lincoln to get down you damn fool or you will be shot. In fact, Lincoln knew it too. He made some emergency moves, especially early on before the Congress was in session, but ex post facto got authority. Just as FISA allows within three days or Sen. DeWine wanted to officially give him after 9/11, not in 1978. He too claimed some independent authority. But, Lincoln actually directly asked Congress to do things like suspend habeas corpus.

But, our tyrant president does not want to go to by nature subservient secret courts or to a by inclination subservient Republican Congress. The Republican Congress of Lincoln's day was not quite so, but than Lincoln was more true conservative than radical as some congressional leaders of the day. Times change, threats require new methods (though deep down, not so new at all) of attack, but our system does not give the power to respond to one man alone. It gives it to the people, surely their representatives with courts in place to safeguard their rights, including the proper balance of power. Such is why the Federalist Society, Alito's other organization along with CAP wants the courts to give more power to the states vis-à-vis the federal government. The alternative, per the Declaration of Independence, is tyranny.

Some are "concerned." Meanwhile, Republicans in Senate en masse voiced their decision to confirm as justice someone who clearly supports the mentality they are so concerned about. Harriet Miers, though her lack of judicial experience (darn if Rehnquist had none) helped their cause, was not deemed conservative enough. The House of Representatives rejected -- per usual -- to have any oversight hearing. The Senate did schedule such a hearing and the likes of Sen. Lindsey Graham voiced his "concern" while spitting at Democrats who opposed the nomination of Alito. You know as if somehow these two things are independent. If Republicans, including the few that still care, do not know that, they are pathetic. And, yeah, I think a few continue to lie to themselves about such matters.

The current issue seems to some on some level not worth our concern. But, this ignores the basic misuse of power and the rule of law that we are supposed to give a shit about. Take religion. Some people believe stupid things that in various cases are actually dangerous. In some extreme cases, lives clearly are at stake, and I am not talking about embryos. But, we have religious freedom in this country. It is not a matter of actually agreeing with all creeds. It is a fundamental right, to some a natural right of human kind. It surely is not a harm-free right though many are wary about admitting this fact. But, freedom is not harm-free. And, we do not trust daddy president -- who will not always be this asshole -- to decide when something is harmful.

So, maybe you actually agree with the acts of the President in specific cases involving matters of war or national security. We are not officially at "war," but you think we are de facto (without using the term). But, one might agree with specific acts of a king or tyrant. That is not only our system, it is a basic reality. And, the President and his supporters do not want to admit the fact. Others do not want to forcibly oppose what amounts to a rejection of "the republic for what we stand."

And, surely, a major reason why we do not allow this is because it leads to error and abuse as well as threats to our liberty. Heck, it also leads to some hysteria from the anti-Bush left, but the ilk of Bush ask for it -- secrecy, abuse of power, and rejection of any balance of power will lead to hysteria. Some will not trust Bushies when they say the sky is blue. The result is scary, even for those against Bush.

President Bush will soon give his latest State of the Union. Democratic members of Congress (Stevens should stay in his condo in Florida) and all liberty loving people should not go or turn their back when it is given. Actually respecting the President is so pre-9/11 ... or until we have one that actually takes his or her oath seriously.

Oh, Sen. Kerry came out in support of a filibuster.** Good for you John ... where was your guts in 2004? Where was your guts when your own running mate said not to call the election less than 24 hours after the polls closed? Where is the united and loud front against presidential abuse, not just "concern?" They still play nice --- Leahy speaking nice to Specter as the senators gave speeches on the Alito nomination. The Republicans support a leader who call many of the Democrats and their constituents akin to traitors, they ala Clinton (good anti-Alito speech) treat Congress as a plantation, but the Democrats continue to play nice.

Such is the path not only to losing but losing badly.

[The Daily Kos is in "well, we just do not have the numbers now" mode ... thanks a lot. Again and again this is said. Sometimes, you have to make a stand, and lose. The Republicans gained back power that way. The Dems do not make a stand, since they do not have the votes. Well, they do for a filibuster, but keeping them together even now is akin to a "no-hitter," unlike the Republicans who are totally united. What a pathetic post, days before the final vote. DK supports "fighting Dems," in other words vets running in '06. This post, I am sorry, is a sad surrender. The comments leaned toward "thanks for being realistic." Sad.]

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* Sadly, he is "President." Some point to Ohio -- the victory was over one hundred thousand, not a few hundred. So, even cutting the victory there by a hundred thousand, Bush would have won by over ten thousand votes. Furthermore, nationwide, it was a few million. Given we have nearly 300 million, less than half actually voting (not much more than half of the electorate voted), that does not amount to that much.

But, it was enough: even if he lost in Ohio, he won the popular vote. This might not be what the Constitution requires, but it is telling all the same. Yeah, it is sad, and it is an ill-gotten gain after the 2000 fraud. I do think he won in 2004. Anyway, it is the reality in practice. George III was the king, fair and square. Still was declared a tyrant. Such is the ultimate matter.

** Thus far, three Dems -- including Byrd -- voted for Alito. But, I truly doubt that Byrd would vote for cloture, if it came to that. He is one of the few that actually would vote for Alito but against cloture. Byrd is Mr. Unlimited Debate. And, clearly a hypocrite here. Mr. Constitution indeed.

Anyway, a procedural measure -- scheduling a cloture vote on Monday (1/30) -- was passed without dissent. Like James Buchanan in 1857, the Senate Republicans want Bush to go give his speech with knowledge the Supreme Court is in his pocket. As O'Connor might say "this is horrible."

"declaratory and restrictive clauses ..."

The freedom of communication, and mail, telegraphic, electronic, and telephonic correspondence, and other correspondence shall be guaranteed and may not be monitored, wiretapped or disclosed except for legal and security necessity and by a judicial decision.

-- From Iraqi Constitution

The conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added, and as extending the ground of public confidence in the government will best insure the beneficent ends of its institutions, be it resolved ...

-- Preamble to Congressional Resolution Setting Forth the Bill of Rights

The preamble is remarkable because it says in a few words the basic purpose and effect of the Bill of Rights, perhaps more so than many court opinions and commentaries. The Bill of Rights (and the amendments that follow) has various functions. An important point to be remembered is that they were not supposed to imply (see the Ninth and Tenth Amendments for more discussion) that the rights were not in place already per se. Surely, many felt freedom of conscience was a natural right that no government could rightly deny, First Amendment or no First Amendment. And, “rights” is the operative word, since James Madison specifically used "shall" type language as compared to the advisory "ought" that was often used in state bill of rights.

The Bill of Rights were enacted to salve concerns of the public arising from the possibility of abuse of government power, in part because broad written phrases in the Constitution might be “misconstrued” to suggest such abuse was warranted. Also, the very declaration of the rights and principles found in the Constitution would promote and reinforce the principles found therein, serving as a guide and reminder to the people and all those who were yet to be born. And, remind us as they repeatedly are violated, since no matter how clearly they expressed, such prohibitions continue to be violated in the day to day operation of government. They were to be a sort of secular Ten Commandments, reminders of our rights and obligations, ones not always faithfully followed.

[I wrote the above elsewhere as a prologue to an expansive discussion of the Bill of Rights but darn if it bears repeating. A core value was to be declaratory, to remind the people and their government of their rights and the limits on expansive governmental powers. Said "powers" include those of the executive. This could easily be quoted -- perhaps by Sen. Byrd -- as the Alito nomination is being "debated" today.]

Conservative Candidate Likes Me?

And Also: Those online "fill-in" forms are nifty. You can fill in the forms and then print them out. UPN and WB are melding to form "CW" this fall. The local UPN station (owned by the FOX people) will not go blank, but it would be no great loss if it did. After all, though t.v. is rather lame overall these days, UPN and WB together doesn't really have the programming to fill one station.

Since there is no explanation and an email request has gone unanswered, I am not sure why a link to this blog is on the relatively small blogroll of a conservative leaning candidate for Congress. A look at his views suggests the leaning of this blog is not copasetic to his, though it does seem it favors "blogspot" links. Perhaps, I won some sort of lottery. Oh well ... things like that suggest why it pays to look at my hit totals now and again.

I still simply do not read enough conservative leaning material though enough moderates/liberals/libertarians provide dissenting views, links thereto, or obtain conservative criticism that I do believe offers me an adequate flavor. I also try to look at things with an open and critical mind, leading me to be annoyed at times by the somewhat knee-jerk responses of some people I overall agree with.

Again, I recognize my own limitations. I remember some stupid comment I made some years back to the degree I was somehow so much more "open minded" and how sad it was that more people was not like me. Something along those lines -- time makes one a bit more humble, though yeah, I still am full of myself. I think it runs in the family or something. This is problematic since we all have somewhat different views.

Anyway, I do hate knee-jerk responses, though I wholeheartedly understand them. For instance, those -- no matter how much I note that my criticism is not solely personal or only offered by the usual suspects -- who continue to offer a simplistic defense of the Bush Administration. I respect those who disagree with me on various issues and try not to make cheap shots, especially when they hold deeply held views (e.g., pro-life*). I have gotten some positive feedback in this department, which is reassuring, since it shows my overall philosophy is worthwhile.

And, sometimes, different views are just too hard to bridge. But, I am growing to despise -- seriously, it really pisses me off -- shallow reasoning, especially from people clearly intelligent and who sad to say just seem intellectually lazy about the whole thing. I have a policy -- though when they directly challenge me, it is hard to uphold -- of just avoiding such people. I can write and reason ad nauseam -- I always did like essay questions -- but darn if I take these things personally. Surely, they sadly shake their heads as well when they read me, and one can note aggravation in their comments as well -- sadly, it is their day to shine these days. I leave it to others to decide who is more right.

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* For instance, I had a colloquy with someone who believes abortion is akin to "infanticide" and the practice of killing newborns with one's heel or tossing them off mountains. One reply to the comment was "sorry, the law does not interpret things that way ... goodbye" ... and I thought it a bit of a cheap shot. Now, I like the guy and many of his posts are brilliant, and some of the replies are to obvious snarks, who probably deserve the scorn. And, the pro-life brigade can be quite bothersome. But, they also are not just full of shit -- they honestly believe what they are saying. Sometimes, they spout patently false reasoning, but I am not so sure that said reasoning is not often also shown to some great degree by their opposites.

Anyway, I already commented that an editorial by William Saletan on abortion left a bit to be desired. In honor of the latest anniversary of Roe v. Wade, it probably is worth noting that a bit more reflection led me to realize it was even lamer than a first glance suggested.

I particularly "like" his reflections on the morality of the practice, including how abortion rights proponents have not addressed this issue. This sort of thing is probably why I grew tired of the guy’s Slate columns.

Bankruptcy Case ... and More

Book: Love on Trial is an interesting and down to earth account of an infamous but now mostly forgetten New York annulment trial alleging a middle class woman of mixed heritage was guilty of lying about her race to ensure marriage to a rich white guy. The co-author approach, a black man (once married to a white woman) and white woman, also is notable. [It does not appear the publishers or whatever purposedly chose them for their race and ironically neither match up directly to the two principals.] They apparently each were responsibile for various chapters, but one (well I) would not know it at first glance.

[Update: Does this case suggest cries of stare decisis by various Democrats was cynical in nature? A bit -- the law does develop, and certain cases are not so well loved by liberals. But, it is about more than abortion -- many Warren/Burger Court opinions are at stake. So, be careful critics.]

The question in this case is whether the trustee may sue a State (or, in this case, a state university's bookstore, which is treated the same as the State for sovereign immunity purposes), to get back a preferential transfer. ... A bankruptcy trustee's proceeding to set aside the debtor's preferential transfers to state agencies is not barred by sovereign immunity. Pursuant to the Bankruptcy Clause, Congress may, at its option, either treat states in the same way as other creditors insofar as concerns "Laws on the subject of Bankruptcies" or exempt them from operation of such laws.

-- summary of Cent. Virginia Cmty. Coll. v. Katz

I referenced a case that was decided yesterday. It is interesting for various reasons, especially given Justice O'Connor was the swing vote -- there was another 5-4 decision so far this term, but it is dubious if Alito would decide it the other way. Thus, with the additional fact that Alito was voted out of the Senate Judiciary Committee today (10-8, party line ... shocker), perhaps further commentary is warranted.

The case was rather obscure -- during a bankruptcy proceeding, a bankruptcy trustee wished to sue a state university's (Central Virginia Community College) bookstore to get back what is known as a "preferential transfer." A bankruptcy proceeding attempts to treat all creditors in an equitable matter, thus when a debtor in some fashion treats one in a "preferential" matter by playing favorites in some fashion, the trustee is under obligation to deal with the problem. This includes ordering the preferred person or institution to surrender the portion given illegally. On the face of it, one doubts this one involved too much money. But, individual facts often are not the issue when the Supreme Court decides. The basic principle at stake is.

The issue here is state immunity from monetary lawsuits pursuant not only to the 11th Amendment (for as the Supremes notes in their more lucid moments, that amendment only deals with specific matters) but the "plan of the convention," namely original meaning as well as the inherent nature of state sovereignty never surrendered even after the Constitution was ratified. As with some petty suits involving free speech (surely not all NYT v. Sullivan in scope), surely some of the facts securing said principle would be -- and do seem -- trivial. And, the principle is not made up out of the thin air -- The Federalist itself references that states might be appalled to be subject to monetary lawsuits.

The question is the breadth of the principle, the corresponding national interests at stake. Though I personally do not find it horrible -- or in no way "essential" to state sovereignty per current doctrine -- requiring states to be subject to run of the mill monetary judgments is reasonably seen as something our Constitution seriously frowns upon as an original matter. [As I wrote elsewhere, fairness demands mention be made that the likes of Kennedy and O'Connor evenhandedly protects other unwritten rules such as the "right to privacy."] This is clearly the case when out of state litigants use the federal courts, though it seems to me that Chisholm v. Georgia followed the original concern that litigants -- including states -- would not follow through on their debt requirements. But, how far do we take this theme? Surely, once you go beyond mere personal jurisdiction questions of this nature, problems arise.

Jurisdiction -- court authority to say what the law is -- kicks in various ways. One important matter for federal courts is "federal questions" -- based not on who is involved, but the federal issue with constitutional significance. Thus, even after the Eleventh Amendment, the Marshall Court allowed suits against states when the national bank was involved. Justice Stevens and others note that this was a sound reading of the original meaning of said amendment, the wording of which was chosen over a broader proposed amendment which would be more universal in scope.

Therefore, for instance, to protect its commerce powers, Congress could make states subject to litigation. It would be "necessary and proper" in certain cases to do so, just as it is now deemed so when amendments ratified after the Eleventh ... as long as the Congress expressly notes that is what it is doing.

I find this proviso and general principle a bit strange. If "state dignity" is so threatened by monetary lawsuits that even in civil rights cases federal legislation has to expressly supply the intention to do so, why is the mere fact the Fourteenth Amendment (etc.) was ratified after the Eleventh a saving factor? By implication, the amendment was ratified with the understanding basic constitutional values would not be overridden unless "appropriate." Sure, the Civil War brought with it the assumption national power would now be more acceptable, but state immunity is fundamental to state sovereignty!

If monetary damages was required to uphold let us say the war power, would it not be allowed, but since the poll tax provision came later in the game, even a relatively mild violation could be dealt with in such a fashion? Justice Stevens, in fact, raised a somewhat similar question among the various state immunity dissents that graced the U.S. Reports since the mid-1990s. Among his parade of horribles was the issue of bankruptcy -- if Congress cannot, as the Supremes suggested, use monetary suits against states to uphold its commerce power, what is the stopping point? After all, bankruptcy is interlocked with commerce.

Justice O'Connor, as is her wont, saw a way to split the baby. [In fact, she announced the opinion, since Stevens was not available to do so. Appropriately, I also am about to read her new bio ... these things fall neatly in place.] Bankruptcy, especially the power to make it "uniform" -- to prevent one state from threatening debtors relieved of their obligations in another, etc. -- is somewhat special. As does the in rem (focusing on the debts) nature of the procedures, and so forth. And, history could be trumped out to suggest as much.

Thus, this case is one of many where the liberal justices (or less conservative) can on their own or via opinions written by others, use original understanding to their benefit. This suggests the flexibility of the process and why liberals should be a bit more open to it (other than references to Madison and such) when it furthers their interests. And, it often does. The dissenting four -- again, it is silly to decide this issue like this, especially a Court that thus far this year if anything went out of its way to decide things narrowly -- read the history another way. Well, nothing new there. And, I think to the degree they argued that bankruptcy is not so unique, they probably have a good case. But, the Stevens Four are willing to take half (or a piece) of the loaf, if that is what they can get.

Anyway, I am not so sure how much can be taken from this little case, though it does offer what I see as an appealing way to establish a somewhat middle course on federalism questions. Some might argue that said "course" is really a makeweight approach, arbitrary O'Connorism, allowing one to have their cake and eat it too. Well, sure, it can be ... if not done appropriately. But, and again the libertarian moves of the likes of Kennedy (dissenting here) suggests it is credible, this need not be an either/or matter. Sometimes, there should be limits on national power and more attention given to the states. But, federalism is a messy matter -- sometimes national interests do trump state power.

And, especially when forced to carefully spell it out (for some reason, the decision noted bankruptcy -- given its unique character -- is not such a case ... this case has the makings of a short lifespan) and kept from overreaching overall, yes, this sometimes includes monetary lawsuits. In practice, any number of other things costs states' money and prestige, so why is this so special? The ability -- with two centrist conservatives on board -- to hope for such reasonable decisions suggests a reason why the Alito nomination matters. The fact -- ridicule of some of his opinions by the usual suspects aside -- Justice Kennedy was among the dissenters here suggests his vote is one we should remain wary about.

The new bankruptcy legislation can even be raised here, especially since the opinion itself referenced the fairness that the Bankruptcy Clause was intended to bring. Likewise, it suggests how little cases like these results in real world consequences, consequences that require the right amount of balanced justice. Ah, but Alito is not balanced in that fashion ... his leanings are well known. They will be ignored or downplayed though as the Republicans vote along party lines (will one dissent? likely a few Dems will in effect as well, so no biggie) as a few key leaders in their party voice their "concern" for the overreaching of the President in the national security warrant tap matter and so forth.

Give me $1 instead -- it will get me a cup of coffee at least, instead of nothing as all. The "concern" of Bill Clinton was ridiculed, but we are supposed to respect said concern here while they do nothing really worth mentioning (anti-torture? well, that is only provisional, don't you know?) to actually DO ANYTHING to limit executive power. One interesting number: over a thousand subpoenas by Congress to investigate Clinton in five years from 1997-2002, three so far for Dubya. Instead, the Republicans provide a rubber stamp, Judge Alito but the most recent. I am sure he will respect the "dignity" of the states ... the dignity of the Constitution overall?

Well, as President Bush etc. noted, that is not important in a post-9/11 world. To say otherwise is in effect to give "aid and comfort" to the enemy. A bankruptcy decision might be the little obscure thing Justice Alito will spend much of his time being concerned about, but his confirmation will be one more slap against the principles of justice the decision handed down yesterday reminded us the Bankruptcy Clause secures, even against the dignity of the powers that be.

Maryland Court Uses ERA To Protect Homosexual Marriage

And Also: "Careful study and reflection have convinced us, however, that that assumption was erroneous." Or, rather, "me," since clearly the only "us" here is Justice O'Connor, since the other four were no fan of the sovereign immunity cases anyway. Though why it was handed down is unclear, since Alito very well might agree with the dissenters, the Court sanely noted that the constitutional uniqueness of bankruptcy warranted a special exception. The fact only a state university's bookstore was involved also suggests the petty nature of the burden on "state dignity," but small victories ...

[Meanwhile, Southern representative Carolina was mauled by the Seahawks ... who unfortunately for the Panthers had their best game in weeks, while everything finally fell apart -- including loss of another key running back -- for the other wildcard team. As I predicted, one will go to Detroit. I would say they will win too, but who knows? No longer an underdog or the only road team on the field, maybe it will be too much!]

The Maryland Constitution has a charming provision that holds:

Art. 6. That all persons invested with the Legislative or Executive powers of Government are the Trustees of the Public, and, as such, accountable for their conduct: Wherefore, whenever the ends of Government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the People may, and of right ought, to reform the old, or establish a new Government; the doctrine of non-resistance against arbitrary power and oppression is absurd, slavish and destructive of the good and happiness of mankind.

Relevant. But, the provision that recently was at issue there was this one:

Art. 46. Equality of rights under the law shall not be abridged or denied because of sex.

A lower court judge used this to declare unconstitutional (per state law) a ban on same sex marriage. In other words, choice of marriage partner was unconstitutionally limited by sex. The miscegenation case, Loving v. Virginia, was referenced. The argument that "marriage" by definition means different sexes and/or that case must be looked at in context of its racist history was rejected. The analysis was pretty dismissive (by now, the ease of rejecting other "compelling" interests such as protecting the kids also is becoming pretty standard), but feminists can cite sexist history and norms too. The danger of invading traditional sexual norms can be used to attack such laws.

A comment to the post that discussed the case made a telling point:

So it appears that the people who opposed the ERA in the 70's and early 80's because they were afraid that it would lead to gay marriage (arguments which were called "baseless" and "scare tactics") were right after all. I don't suppose anyone will be apologizing to Phyllis Schlafly anytime soon.

On the other hand, yay for Maryland. Although I would much rather this decision were made via the legislature, even if the case was correctly decided.

There are two ways to answer critics like Schlafly. Suggest they are wrong, or suggest that either way, the opposed law is justified anyway. Some courts, interpreting federal and/or state constitutions that under current law bar sexual discrimination in most cases (some states have constitutions explicitly more strict than the federal constitution on the point, stating clearly "sex" is a 'protected class'), have rejected the path taken by the court here. Vermont -- deciding things on a separate provision -- being one. Others agreed.

Still the guy has a point. It also suggests how constitutional terms develop over time, the meaning of "equality" and "sexual discrimination" changing with the times, events making even outlier (and ERA supporters generally were honest in saying that it was not intended to apply to homosexuals though some lesbians and such disagreed) points of view standard fare in time.

CRS Report on Warrantless Surveillance

And Also: As to today's NYT, why did Frank Rich parrot Alito's "I knew nothing about CAP's practices when I put it and the Federalist Society as my only memberships on my application?" William Saletan is right (but see) to suggest abortion rights groups should attack the need for abortion. But, again, many already do this in various ways he suggests. Anna Benson (and her hubby) get kicked out of NY by the Mets for questionable parts. And, Plummer finally (on schedule?) slips up. The final three minutes, down by 17, was pretty silly. Imagine if someone got hurt!

Respecting the national security warrant issue, some reference is made of a Congressional Research Service report on the matter. Many locations, however, do not provide a link. CRS reports generally are not publicly released though the Federation of American Scientists (and Secrecy News) does provide links to many of them. A useful service.

The immediate report (there is a second one) at issue is Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information. Its final analysis is that the President's claims are dubious.

Some excerpts might usefully clarify some issues. First, how the Supreme Court dealt with domestic surveillance in the early 1970s:

The Court expressed no opinion as to "the issues which may be involved with respect to activities of foreign powers or their agents," but invited Congress to establish statutory guidelines. Thus, at least insofar as domestic surveillance is concerned, the Court has recognized that Congress has a role in establishing rules in matters that touch on national security.

[per the report linked below: "And the only time the Court considered the question of national security wiretaps, it held that the Fourth Amendment prohibits domestic security wiretaps without those safeguards. United States v. United States Dist. Court [1972]."]

FISA and its purposes:

The Foreign Intelligence Surveillance Act of 1978 (FISA) sought to strike a balance between national security interests and civil liberties. The legislation was a response both to the Senate Select Committee to Study Government Operations with Respect to Intelligence Activities (hereinafter the Church Committee) revelations of past abuses of electronic surveillance for national security purposes and to the somewhat uncertain state of the law on the issue. The Church Committee found that every President since Franklin D. Roosevelt had both asserted the authority to authorize warrantless electronic surveillance and had utilized that authority. Concerns over abuses of such authority provided impetus to the passage of the legislation.

[Past abuses, privacy and First Amendment concerns are addressed, as well as the need to cabin open-ended executive power that in the past led to domestic abuses in this area. Cf. This ridicule of the legislation, which fails to cite its background.]

The legislation clearly applied to "the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States."

As to wartime:

Where Congress has passed a declaration of war, 50 U.S.C. § 1811 authorizes the Attorney General to conduct electronic surveillance without a court order for fifteen calendar days following a declaration of war by Congress. This provision does not appear to apply to the AUMF, as that does not constitute a congressional declaration of war.

[And, even if it did, there is that 15d limit. The use of a "force" provision is telling though: "war" kicks in various statutory powers given to the executive only during "wartime." There are various degrees of congressional authorization. This is why references to let's say WWII is not always appropriate.]

On the issue of so-called inherent presidential power over this issue:

The passage of FISA and the inclusion of such exclusivity language reflects Congress's view of its authority to cabin the President's use of any inherent constitutional authority with respect to warrantless electronic surveillance to gather foreign intelligence.

[Also referenced is Scalia's comment in the Hamdi case that issues of interrogation and other intel collection matters is not the baliwick of the courts, but clearly a matter of legislative concern. Furthermore, the limit of the case -- except for Thomas' solo dissent -- to battlefield capture, not domestic activities. Even in the broadest sense, AUMF would not cover all terrorists, but only those involved in the 9/11 attacks.]

A conclusionary summary:

By including the emergency authorization for electronic surveillance without a court order for fifteen days following a declaration of war, Congress seems clearly to have contemplated that FISA would continue to operate during war, although such conditions might necessitate amendments. Amendments to FISA in the USA PATRIOT Act and subsequent legislation further demonstrate Congress's willingness to make adjustments. The history of Congress's active involvement in regulating electronic surveillance within the United States leaves little room for arguing that Congress has accepted by acquiescence the NSA.

Others, such as this bipartisan group of legal scholars,* have spelled out the problems as well with even more force. But the CRS' dubiousness is especially telling.

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* The likes of Richard Epstein joins the club that included the former assistant attorney general of the Reagan Administration who testified at Rep. Conyers' "hearing," Bob Barr who joined Al Gore, Christopher Hitchens (supported Iraq War and Bush re-election, though weird to watch him last night on an old Booknotes stating his hero is Gore Vidal) who signed on the latest lawsuit involving domestic spying, and so forth to suggest -- allegations elsewhere notwithstanding -- this is not just an "Democratic" or "anti-Bush" effort [as the person noted to be respecting the judicial nomination wars, "but it appears that way ..." yeah, if you f-ing ignore the context etc.]

Anyway, I find it sad that the default now is trusting (comments) great exercises of executive power when once upon a time many were more jealous of their liberties and distrusting of unbridled power. Such is the state we are in.

Reality Based Community Blog

And Also: I sadly did not truly catch this earlier, but a true American hero died earlier this month. The NYT story is entitled: "Hugh Thompson, 62; Saved Civilians at My Lai." See here for more.

Mark Kleiman, a member of my small blogroll (several have long blogrolls), changed the name of his blog. The old link provided transfers the viewer to the updated link, so no problem there. He fell victim to the "group blog" movement and now calls his (their) blog the "The Reality-Based Community" which has the motto "Everyone is entitled to his own opinion, but not his own facts." That seems a bit mean, doesn't it? Well, so some seem to think.

One member of the blog wrote an interesting take on how moral reform movements are no longer led by ministers any more like in the days of Martin Luther King Jr. In this sense, and an email clarified the matter further, he means "mainstream" ministers. This should be taken into consideration when he says:

On the whole, the clergy's loss of influence has been a stupendous gain. Without this decline, the story of sexual freedom, gay rights, and legal abortion (for now, anyway) would have been very different. But so would the story of Civil Rights. Those who want a new Civil Rights movement will have to grapple with the lack of leaders immediately respected by both Blacks and Whites. Once, the role of minister provided an unexpected bridge. No longer.

The problem is more general. A society with no uncontroversial moral authorities will find it easier to justify personal liberty than to tell anyone why he should (slightly) limit his liberty to promote the moral value of equality.

As I noted, many religious leaders and groups do support sexual freedom. In fact, certain religious movements had an important role, continue to do so, in said movement. For instance, the individual salvation wing from the times of the Founders promoted a certain view that supported a separation of church and state that helped said "story."

Of course, many of these groups were not "mainstream" -- the Baptists in Madison's day in part wanted separation because the alternative favored certain majority religions. All the same, many "leaders" were involved -- take the anti-slavery movement -- that word surely does not imply majority support across the board, does it? After all, in his day, Martin Luther King Jr. was surely not "uncontroversial!" See, "The Letter From The Birmingham Jail" etc.

His latest discussed the NSA wiretaps issue. This one is much less to my liking as compared to my partial disagreement:

Democrats are holding a "meeting" (can't be a hearing without Republicans) today, hoping to gin up public attention on this. I hope they fail. Reality-Based people, listen up: THIS IS A LOSING ISSUE FOR US. The only poll I know of shows that people overwhelmingly favor Bush's doing this. And while Mark Kleiman thinks that this will change if we pound the table about illegality and "a government of laws, not of men," I harbor enormous doubts. I share Mark's principled attachment to legality and his extreme distrust of Bush's executive arrogation. But both are minority and elite tastes.

btw I caught some of this "meeting," which was really called a "hearing" at certain points. One of the panelists came from the Reagan Administration, another was a middle-aged Quaker in a wheelchair, an expert in the history of national security matters, and civil libertarian lawyers/professors also were involved. I found it useful. But, then, I am among the "minority and elite" who finds threats to our liberty and basic constitutional values like separation of powers worthy of concern as much as pocketbook issues like Medicare. Also, of course, this is just part of the problem. Many other abuses, which polls show the people oppose, interlock here.

In the long run, executive power run riot is also quite costly. Consider the war. Also, I recall a poll that says if the President broke the law, the people oppose that too. The poll he cites is phrased in a narrow way that is misleading. But, anyway, the man has a short memory. Democrats tried to only rely on pocketbook issues a few years back. Where has that lead us? Selling our soul because it might not poll well, which is dubious in the first place, does not seem to be something the reality based community should promote.

After all, it really is dangerous and bad for the community.

Plantation Governing?

And Also: "Google has refused to comply with the subpoena, issued last year, for a broad range of material from its databases, including a request for 1 million random Web addresses and records of all Google searches from any one-week period ..." Sure, this request is not likely to threaten First Amendment values at all. All in the push to fight porn!

The problem starts not with lobbyists but inside Congress. Over the past five years, the rules and norms that govern Congressional deliberation, debate and voting - what legislative aficionados call "the regular order" - have routinely been violated, especially in the House of Representatives, and in ways that mark a dramatic break from custom.

-- If You Give a Congressman a Cookie [read the whole thing]

A recent blow-up was caused by the use of Sen. Clinton's use of the word "plantation" to describe how the Republicans run Congress ... something that perhaps my favorite media nerd, Tom Oliphant, forthrightly agreed with, without appearing to think he was racist to do so. After all, he has a well received best seller on the 1950s Dodgers, so perhaps he is covered. Seriously, the problem was the racial implications, especially because she said it at a black church or whatever.

I did not read her remarks. But, the core of her apparent point has been well tread elsewhere and has been reaffirmed over and over again. Namely, Republicans pervert the rules so that the majority has control; in particular, special interests have special benefits. This was shown over and over again. Late night votes. Votes extended for hours. Additions made a day before the final vote of big appropriation bills and such, allowing perks (including special "earmarks" or changes in regulations helping the usual suspects) that could not be challenged -- it is an up and down vote for the whole bill. And, the Patriot Act is but one example, changes in conference that did away with mild compromises made in committee (usually on the Senate side).

[The NYT editorial linked above reflects my feelings here. A reform package bouncing around the blogosphere not as much. I'm with the few that find it troubling. Just one issue of many: what if an incumbent has a tough race?]

And, who controls these things? The party in power. The party that complained that the Democrats abused power in the early 1990s, so the people needed to voted new blood in to change the system! A party that would not be like them, but who would give the minority power a real chance to have a role in creation of legislation. Yeah, and over and over again, the system was "closed" with token conservative Dems brought in to show how things were bipartisan in select instances. This was particularly troublesome in the House of Representatives, and the Dems there have been gritting their teeth for the last few years. But, changes in the nomination of judges suggest it also affected the Senate ... and those conference votes did as well.

Thus, we have a top down system in which the majority party -- in particular key leaders -- has unbalanced power. This on the face seems almost fair to people, especially since they do not look into the wonky abuses of the rules that even wonks might deem boring, since after all the Republicans are in power, right? But, that is not how things are supposed to work, and not how things worked -- surely not to this extreme -- when the Democrats were in power last decade.

We deal with a "Congress" here with two houses with representatives of the people, including the Senate that represents the states at large. Thus, even when the minority is involved, some sense of fairness is supposed to exist, some basic rules. Furthermore, when late additions and changes are made before there is a chance to even read the darn things properly, it affects EVERYONE. But, then, the Republicans do not like dissension in the ranks.*

You know, a "plantation." It was used as a metaphor, of course, and the possible racial implications might have been recognized given the audience. She was also filmed, so someone noted that she did not really use it that way, since she would have knew it could be taken the wrong way. Or, something along those lines. Hmm ... I really do not know. I am not a gigantic fan of the woman, honesty, and the use of the word on the face of it is a bit stupid. Sure, the other side cynically is raising cries of racism, but they know what works. They know how shallow this country can be, if we are too lazy. Just consider the plastic surgery industry -- image is everything, even if it is skin deep.

But, sure, the point is right. It helps the Jack Abramoffs of America as well, since it is so much easier to advance special interest fraud when there are no proper checks on power. Such is the path to fascism. We can target "lobbyists," and one call-in person wondered if we can just do away with them. Uh ... when the ACLU or whatever testifies to Congress that the Patriot Act is unconstitutional in various respects, this is "lobbying." Do we think that the members of Congress and their staff (of course, with Jack helping to select the Secretary of Interior ... hmm, something to do with Indians there ... the two overlap these days) create law all by themselves? No. It is the system without checks that allows lobbyists, like misused fire, to burn us.

Not to worry, reform is on its way! We saw Sen. Homophobe (R-PA) on C-SPAN remarking on his past reform related work while he was in the House. For instance, he dealt with the abuse of franking -- you know, the postage used by members to send stuff to their constituents (not lobbyists, you and me) -- and other things like that. He even brought up how he was unpopular for such things as raising the prices of congressional barbers. C-SPAN did not do it, but it could have run a scroll noting that: "Sen. Homophobe, in charge of the 'K-Street Project' that kept lobbyists in line, including keeping out the 'wrong' (Democrats) sort."** Yes, in other words, it would be akin to him supporting reform of the state's sodomy laws. Oh, did I note that he is up for re-election?

It was particularly depressing to see Sen. Maverick (R-AZ) right aside him, though he had the grace to look fairly uncomfortable about the whole thing. As with Colin Powell, I have found my respect for the man to have dropped below acceptability levels by now. Oh, I think the guy's heart is somewhat in the right place, and his independence on certain issues is true. It just is that he is not really independent when it counts.

Complaining about pork more than a rabid member of the Nation of Islam (racist!) is nice and all, but push comes to shove, he is there with people you think deep down he must have a deep distaste for. You know, Bush, etc. And, if he does not, well, you should not have respect for the man anyway. I also say this to those loyal to him, perhaps hoping he will run in 2008. The PTB might deign to let him, especially if no one else comes along that has a chance, but sorry ... no.

The Dems ... no connection to Jack Abramoff [correct -- connection to tribes he does business with is problematic only if any priest who is a member of the Catholic Church is "connected" to molesters and must be equally damned] they gleefully note ... have an alternative plan. Apparently, lobbyists can only give you golf trips and such if it is part of some sort of campaign donation. Ah reform: give us more money! The problem is deeper than the lobbyists, who will always be with us, partly because of the last phrase of the First Amendment. Part of the problem is that plantation. Another is campaigns without alternatives like public funding, free air time, and so forth. Money finds an outlet much like water. Campaign limits only go so far.

But, let's call Hillary a racist. Please, can she just go away, so a real candidate for '08 can come to fore? No more family members of past presidents. No more people who bring with them what amounts to hatred to a chunk of the population without even going into the issue of her being a woman. [It doesn't matter? Great ... let some other woman run. No, Laura, not Condi. But, true, Laura can teach you know who to be First Spouse.] She will continue to make some points, while being too conservative for my tastes in various respects (Iraq, anyone?), but find some way to invite petty opposition like here. It's stupid, but things are too important. Anyway, I seriously still do not think she is the best candidate out there. She is no Bill Clinton. No matter what that book by Susan Estrich says! [She has a book out promoting HC as a candidate Dems can love.]

Oh, and for all those who sell their souls (I am no big believer in the Devil, but many at issue here do, and like David Webster's famous client, they are signing on the dotted line) to a corrupt system because they do not trust the Democrats to even have a small piece of the pie, thanks as well! You are a big help here too. A few years back, I responded to a McCain '00 supporter, and simply noted: why not let the Dems control the Senate? You still have the rest! Abortion. I did not say, but I can now, you control it all now, and you still have abortion. As an article last month noted, Latin America bans it, and illegal abortions thrive. Oh, how about that Abramoff related business in Saipan involving forces abortions and prostitution ... with an assist by Rep. Terri Must Live (R-Indicted)? Thank goodness Republicans can secure morality again!

We can last to '08. Then, McCain! Who now is on the stage with Sen. Homophobe, since campaigning for President Bush is not necessary at the moment? Necessary evil. Keep saying that. Sure, you can laugh at the Democrats not putting up a great counterattack, though there are moments. Like Jets wins this season, but still ... But, it must be a pretty sad laugh by now.

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* And, there are ways around these things, including ways ridiculed when Dems -- ahem, Kerry, ahem -- do it. For instance, on a trade measure, the vote was damn close. Two votes mattered ... both that voiced opposition in the past, but they managed to not vote against it on the floor. I believe one had a busy day and could not be there for the vote. Also, there are always things like threatening that the leadership would not support the race of one's son if they did not stay in line.

** I was going to say "straight Republicans," but given the person involved, that might lead to confusion. In fact, and reading through reports on the Bush Administration some pop up, homosexuals are allowed. After all, some might be friends with the Cheney family.