Supreme Court Watch

And Also: AOL News yesterday had an article ("story" might be appropriate here) about someone who built a working life size (if smaller than the original as cited by Genesis) model of Noah's Ark. Why not? Let's have a view of more biblical things. How about that creationist museum? Also, why not? I don't know how accurate, so to speak, such things are (we don't quite know what sort of wood was meant in Genesis ... anyway, the guy used modern tools), but a three dimension view is useful, if only to challenge.

Justice Kennedy's famous eloquence comes out in a patent case:

We build and create by bringing to the tangible and palpable reality around us new works based on instinct, simple logic, ordinary inferences, extraordinary ideas, and sometimes even genius. These advances, once part of our shared knowledge, define a new threshold from which innovation starts once more. And as progress beginning from higher levels of achievement is expected in the normal course, the results of ordinary innovation are not the subject of exclusive rights under the patent laws. Were it otherwise patents might stifle, rather than promote, the progress of useful arts. See U. S. Const., Art. I, §8, cl. 8.

Meanwhile, the Supremes (in a "here, you can see that's I'm right" moment) have gone to the YouTube age. Some might recall a case that was discussed during the Alito hearings involved shooting a fleeing suspect. They just handed down an opinion about a high speed chase, the question of how to "evaluate the reasonableness of the decision to ram respondent's speeding vehicle in a manner that created an obvious risk of death and has in fact made him a quadriplegic at the age of 19."

[A sort of dark side of the Duke boys and Roscoe P. Coltrane?]

The lower courts felt that a jury ("the people") should determine if the "seizure" here was "unreasonable" per the Fourth Amendment. A 8-1 ruling (two justices* briefly tried to temper Scalia's majority opinion's breadth) held otherwise. It was just obvious that the police acted adequately here, and should not be liable. And, via a link provided in Footnote 5, it allows us to view the videotape that lead them to so hold.

Various opinions have provided pictures but this is the first time we get to watch a videotape (THEY watched videotapes that influenced their decisions for awhile). Nifty. It also is good that the chase was videotaped. A videotape doesn't answer all questions, but those who think it should be available in the interrogation context will tell you, it can surely help. A jury very likely should have had a chance to decide too,** but we have ourselves a first here all the same.

Supreme Court YouTube. A few other rulings, including a Commerce Clause matter in which Alito (with Stevens/Kennedy) and Scalia split.

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* The two being John Edwards' favorites (per the first debate), Breyer and Ginsburg. Bill Richardson interestingly first said Justice White (if only we could learn why) and then Ginsburg (they wanted a living one and she wrote that nice abortion ruling dissent that made her star for the day so to speak). Dodd would have went with Brennan, but then took her too ... why note Stevens? Me, I'd take Stevens or Souter, probably.

** Justice Stevens, again showing the importance of having at least one strong liberal on the Court, noted:

Whether a person's actions have risen to a level warranting deadly force is a question of fact best reserved for a jury. Here, the Court has usurped the jury's factfinding function and, in doing so, implicitly labeled the four other judges to review the case unreasonable. It chastises the Court of Appeals for failing to "vie[w] the facts in the light depicted by the videotape" and implies that no reasonable person could view the videotape and come to the conclusion that deadly force was unjustified. However, the three judges on the Court of Appeals panel apparently did view the videotapes entered into evidence and described a very different version of events

Prof. Akhil Amar, see e.g. his book on the Bill of Rights, probably would agree. Let "the people" decide ala juries. At least, when there clearly is some disagreement.

More Sports

Cards pitcher died in a car accident, second death for the team in a few years. It was called a "tragic" death, though honestly the word has a bit more pathos than a 'regular' car accident ought to bring. Mets scratch another win, Yanks lose again. In response to Tillman, one column references "how dissent against the military buildup was quelled a bit when Toni Smith was pilloried for her courageous stance at Manhattanville College." Basketball/hockey playoffs continue.

Baseball Update

Their starter was knocked out before getting an out, but the Yanks managed to win ... finally ... a clean 3-1 victory (though the eighth was a bit iffy). MR's first save of the season. Is two in the row too much to ask? The Mets ... again ... had fits with rookie Expos/Nationals pitching, but won in the 12th ... the second time in a few days where they were an out away from losing it. This time in the 9th. First time, I believe, Willie was tossed from the game this season.

Execution for Child Rape?

And Also: Year of the Dog was rather good, Molly Shannon showing potential in a serious role. Not about animals per se, but the struggles of the lead character, using dark satire to tell some truths about human nature. Cameo we recognize alert! The movie also suggests Laura Dern should be around more often. BTW, Who knew Bridge to Terabitha was also a t.v. movie back in the day?

I referenced a case where a person was sentenced to death for raping a child (under 12) in my book review segment a couple posts back. The ruling is discussed, at least the federal constitutional aspects, here (h/t Wikipedia). [One view of the facts of the case itself, including some matters of concern on simple fairness grounds, can be found here.] The law review article focuses on international standards of decency, citing an interesting sound law review article by Justice Blackmun (1994, his swan song, involving a few dissents against the death penalty, including one concerning execution by hanging).

The law itself was upheld in court in a state ruling before the case involved was completed, leading the Supremes to refuse cert. (Bethley v. Louisiana; three justices noted separately that this is why they did it), the case itself being eventually disposed of by plea. Still, the state ruling is rather interesting in how it avoids Coker v. Georgia (rape isn't death, so death penalty isn't warranted ... written by that abolitionist Justice White) and a later case citing the same principle in a robbery case. "Interesting" might not be the best word. How about counting the number of times the ruling said "adult" woman? Or, counting heads of dissenting justices, who over the years were more open to a broader rule, including in Coker itself?

Not that the Supremes don't use the same policy, if not necessarily quite as blatantly, when it suits them. But, come on ... no wonder a couple judges (briefly) concurred separately. Now, an argument can be made that raping a young child is so different from raping a woman that the death penalty might be warranted in the former case. And, Coker was specifically about adult women -- opinion writing is all about not taking certain rulings as far as they can go in order to get to your desired destination. But, this was a bit blatant. Still, would the Supremes take the case and overrule the lower court?

I guess so, even if one can differentiate killings by the mentally retarded and minors from non-lethal crimes themselves.* BTW, the name of the defendant here is Kennedy ... the same name as the author of Roper, which banned execution of minors. Mr. Swing.

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* One news article on the case noted:

The federal government has several nonmurder crimes punishable by death, including espionage, drug trafficking, and kidnapping, and it is becoming much more aggressive in pursuing this sentence. But federal juries remain largely unconvinced that capital punishment should be used for anything but murder and are handing down life sentences instead, death-penalty experts say.

Of some interest, the last four executions [1956-1963] by the federal government, before Timothy McVeigh, were for rape and kidnapping.

Serve Your Time, Get Your Vote Back

And Also: More wisdom on the comic pages. On the hard copy front, Courtiers of the Marble Palace (Supremes law clerks) is a bit too dry, but is interesting to skim at the very least. Finally, to be philosophical, 2000 et. al. was bound to happen eventually. The rub is responding to it properly.

Dont you tell me to deny it,
Ive done wrong and I want to
Suffer for my sins.
Ive come to you cause I need
Guidance to be true
And I just dont know where I can begin.

What I need is a good defense
cause Im feelin like a criminal.

-- Fiona Apple

I have spoken about the issue of "felony" (the quotes are for the fact that I don't think people are necessarily "felons" long after they serve their time, unlike alcoholics are still currently of a sort that cannot have a drop to drink even after years of sobriety) disenfranchisement various times. It seems to me a basic matter of (un)fairness ... you serve your time, you get your rights back. The fact that the system is inherently racially inequitable only adds insult to injury.

[In fact, I doubt that all crimes are so serious that you should necessarily lose all your voting rights even while in prison. Prisoners need not be able to vote in those that represent the districts of their prison to have an ability to vote for President. At least, see Florida 2000, those convicted are generally actual felons, unlike many labeled as such on the rolls.]

A Slate piece, comparing it to the faux voter fraud scandal (again, Talking Points Memo has good ongoing coverage on the point, that should not be lost among the other parts of the prosecutor purge ... the few fired but the tip of the iceberg) the administration is trying to promote, suggests both the breadth of the problem and the real evidence of change -- even since the first time I wrote about the matter. Talking about breadth:

In the last several years, other states have removed lifetime ballot bans or waiting periods for ex-offenders: New Mexico (more than 68,000 regained the vote in 2001); Connecticut (33,000 people on probation regained the vote in 2002); Delaware (switched from lifetime ban to five-year waiting period in 2000); and Texas (eliminated two-year waiting period in 1998, allowing more than 300,000 former felons to join the rolls). In Colorado, a restoration bill is pending.

We are talking real numbers here, especially given the closeness of some races. The bipartisanship of the reform -- see a recent post here about the Republican governor of Florida (cited in the Slate piece) as well as the Republican/Democrat (was it Ford and Carter?) leaders of a federal commission a few years back -- at least in some quarters, also suggests the reason for hope. As to why so few Republicans oppose such efforts, again see the Slate piece, some might say we should look at all those being indicted and convicted these days.

Snark. Anyway, going back to my early remark, there is possibility ... and signs of actual change ... out there. Once you see the dark side, the light is ever more bright.

Some Book Thoughts

And Also: Roger Ebert says 'f it' (not exactly, but he was quoted with that sentiment when warned about possible bad reactions) and goes out with a disfigurement from his recent burst of cancer, hopefully helping others less famous that have to deal with a similar situation. The Yanks lose a 6th one. And, Regis is back ... forgot to tape David Letterman's appearance on the show.

Glenn Greenwald has some good stuff this week, including on the hearings on some of the more seedy lying from the administration, underlining how -- rhetoric aside -- Bushies treat the troops. Note an early link on that entry, suggesting yet again "moral" means "my religion" to these people. As he notes, this sort of stuff is not surprising, if depressing, and if the Democrats didn't win in '06, Congress wouldn't have had the guts to have such testimony. And, unlike the award winning reporter who died in a car accident recently, he notes the press weren't much better.

GG has a new book coming out, so let's go on a book segue as well. A few books on tape. I have read Around The World In Eighty Days a few times, and enjoyed them all ... unclear how no movie (a t.v. and film version was attempted) really did it justice. It worked well on CD too ... Frederick Davidson did a good job narrating, getting the tones (a charm of such performances is the person doing different voices) right. A fun book with a nice touch of romance and honor. Since I'm a fan of all three, it's no surprise it is one of my favorites.

I read Bart D. Ehrman's book on Peter, Paul and Mary, enjoying the discussion of these three biblical characters (Mary Magdalene, not Mary, the mother of Jesus). The book surely was not all inclusive, but probably was better for it. Ehrman has various books out, including more scholarly works on non-biblical Christian writings. [Some very interesting stuff there, even though much of it is pretty late, so clearly not more "true" than the canonical gospels, at least as history.] So, he is a good choice to comment on the Truth and Fiction in The Da Vinci Code (which I have not read/seen). [This too was on CD.]

Covering some of the same ground, including how a historian analyzes material, he notes there is a lot of fiction in a book he assured the reader that he enjoyed as fiction. Too bad the author tried to have it both ways. How's this for a segue ... Sherry F. Colb in her When Sex Counts: Making Babies and Making Law (a collection, with added notes and updates, of her Findlaw columns) cites Da Vinci Code commentary in one of her essays on the saint/whore stereotype. The collection, now that I read most of them, is worthwhile.

Still, she has a bit of a one track mind. For instance, consider her essay on Coker v. Georgia, the ruling that struck down the death penalty in cases of rape.* "This judgment, in turn, trivializes the suffering of rape." Colb notes a recent case where a state handed down the death penalty for child rape. Likewise, hmm, Justice White wrote the ruling. Why the focus on adult women? Didn't he also write Bowers, the ruling dismissive of the rights of homosexual men?

The dissenters in Bowers joined the ruling too. [Blackmun joined the majority in Coker, though he dissented in Furman v. Georgia, which set in place what amounted to be a few year stay of execution.] Why shouldn't harm to children (both men and women!) be deemed worse than harm to adults? Is rape really worse than death? And, is this "dismissive" to what is at stake?

We do not discount the seriousness of rape as a crime. It is highly reprehensible, both in a moral sense and in its almost total contempt for the personal integrity and autonomy of the female victim and for the latter's privilege of choosing those with whom intimate relationships are to be established. Short of homicide, it is the "ultimate violation of self." It is also a violent crime because it normally involves force, or the threat of force or intimidation, to overcome the will and the capacity of the victim to resist. Rape is very often accompanied by physical injury to the female and can also inflict mental and psychological damage. Because it undermines the community's sense of security, there is public injury as well.**

I think not. [As an aside, the ruling also referenced international practice in noting "it would be difficult to support a claim that the death penalty for rape is an indispensable part of the States' criminal justice system."] A related theme pops up in pregnancy essays. The idea is that it is sexist to treat bodily integrity differently when women are involved. Sure. But, some do think there are some limits when a pregnant woman is involved, when a fetus is affected. In practice, I probably agree with near absolutism on such matters, but realistically we need to understand the point.

But, she is not totally one track -- in an essay on a teenage girl who asked her boyfriend to "abort by baseball bat" (implications by some that it wasn't really consensual, but it is assumed so for the case) she notes that the law in question was probably meant for non-consensual cases. So, it wasn't not really a good application of the law to target him and him alone. Overall, worth a read, surely for free over at Findlaw.

[I'd add that the above quote from the ruling applies to all rapes really, in no way does it somehow suggest rape of women specifically warrants a less supreme punishment. As to Findlaw, another recent commentary piece by Michael Dorf questioned on free speech grounds the value of boycotting Imus. The final comment was basically "change the channel." But, as other critics of the media suggest, it is not like there is a true alternative to this style of independent minded elite news heavy show. It amounts to a monopoly of sorts. So, pressure to change is of particular value here.]

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* On a related subject, the Supremes recently handed down three death penalty rulings, all 5-4 deals with the usual suspects supporting the defendants. The Chief Justice, per the EPA dissent, threw in some more sarcasm, talking about "dog's breakfast" and the like. I don't mind some spleen, but this ridicule is really a bit tedious, especially coming from the CJ.

** The ruling cited: See Note, The Victim In a Forcible Rape Case; A Feminist View, 11 Am.Crim.L.Rev. 335, 338 (1973); Comment, Rape and Rape Laws: Sexism in Society and Law, 61 Calif.L.Rev. 919, 922-923 (1973).

Sunday Thoughts

Fracture is a clear popcorn movie made or broken by its stars (Anthony Hopkins and Ryan Gosling, old and young representatives, with a couple of sound supporting cast familiar faces). Hopkins is his usual smart cocky killer, Gosling as the cocky, more self-effacing (at times) young prosecutor. Not rocket science -- the plot is pretty straightforward with some stupidity tossed in (a key plot point used an unnecessary bit of melodramatics that implied the lack of modern technology) -- just pretty fun. And, where else did you see blood being used as a pretty good mirror?

On the way home, caught the first annoying baseball news. For the second time in about a week, the Mets blew the Smoltz/Glavine match-up via errors. This time they ruined six runs off the Braves' ace, again losing two out of three in the process. A win, ahead 6-3 after six, would have gave you a fine 3-3 split. The Yanks were swept -- the first game an underused Mariano blew Pettite's gem, yesterday a faulty bullpen blew Pettite's hold (on his throw day, he tossed an inning). The back-to-back-to-back-to-back homers didn't help.

Meanwhile, today Justice Douglas' comments came to mind:

The streetcar audience is a captive audience. It is there as a matter of necessity, not of choice. One who is in a public vehicle may not of course complain of the noise of the crowd and the babble of tongues. One who enters any public place sacrifices some of his privacy. My protest is against the invasion of his privacy over and beyond the risks of travel.

The noise came from a private source, someone's hip hop or whatever (not enjoyable) music not held back by headphones as the subway went a bit too slowly, but the point holds. More or less. BTW, Dunkin Donuts has pretty mediocre coffee, but the peanut butter cookie is pretty good.

PS

Sunday Papers: The complexity of NY updating its voting machines.

An opinion piece from a doctor today highlighted the problem:

As an abortion provider, my primary concerns are how this law could harm my patients' health. Last year, I treated a woman I'll call Lisa. She had two children at home and was pregnant with her third. Lisa suffered from heart disease - a condition that developed after her last delivery. Her condition had worsened substantially within the last week, and we were not sure how much longer her heart could withstand the strain of her pregnancy. After extensive counseling, we proceeded with an abortion using the method I deemed to be the safest for her at that time - the method Congress has banned. According to the Guttmacher Institute, about 2,200 women and their doctors reach that same decision every year.

But I will have to think long and hard about what I will do the next time I take care of a patient like Lisa. What am I supposed to say to her? "I'm sorry, but you're part of the small fraction of women our laws ignore?"

This underlines the vagueness question, almost an add-on given everything else, but covered in the lower courts. Medical decisions are fact specific and laws that might lead to financial ruin (clinics are easier targets by prosecutors than individual doctors) or even criminal indictments if it is deemed that there was some intent to breach the law clouds the issue. Medical decisions become legal ones. Trouble.

[A last word. I know someone morally opposed to abortion, but is strongly pro-choice as a legal matter. She finds this decision offensive, even though she is a mother with many children. This underlines the fiction of some of the rhetoric against abortion choice as a legal matter. Of course, she remembers when abortion was not legal, and teenagers had them illegally ... ruining their body in the process.]

The Abortion Ruling

And Also: It's rivals weekend in baseball, perhaps to challenge the basketball/hockey playoffs. Injuries and a blown Mariano save hurt the Yanks. It's up to today's game (Smoltz v. Glavine, the last time hurt by errors) to see how the Mets do. Yesterday was Perez -- don't touch the foul line -- and he shined. His Game Seven last October might be enough ala Kenny Rogers' walk to make his career for Mets fans. Ditto "the catch" by Endy.

Amici are religious organizations, religiously affiliated organizations, and individual clergy and theologians dedicated to preserving religious freedom for all persons and, within this context, to ensuring that abortion laws protect a woman's right to act according to her religious beliefs and conscience in this most private, personal decision.

-- Amici Brief of the Religious Coalition for Reproductive Choice, et al.

The new abortion ruling, GONZALES v. CARHART, has naturally received much commentary as my quick reference to it earlier suggested. The ruling is not just about the first time a federal (state to, I believe) law against a single procedure was upheld, truly symbolizing the way into a new Court. (Ironically, Justice O'Connor's last opinion was an abortion case, one that allowed a narrow result, delaying the issue) It has more troubling implications overall.

Let's say to begin with that the immediate holding was not too surprising. Justice Kennedy, who joined the four justice plurality in Webster that would have allowed a weak standard of scrutiny for abortion regulations before joining the plurality in Casey, wrote a strong and emotional dissent when a broader (opening up vagueness problems in a more glaring fashion) state law involving this "partial birth" abortion procedure came up. His dissent hints broader concerns:

For close to two decades after Roe v. Wade the Court gave but slight weight to the interests of the separate States when their legislatures sought to address persisting concerns raised by the existence of a woman’s right to elect an abortion in defined circumstances. ... The Court’s approach in this regard is revealed by its description of the abortion methods at issue, which the Court is correct to describe as "clinically cold or callous." ... States may take sides in the abortion debate and come down on the side of life, even life in the unborn ...

This is the swing vote life line? The best one could hope for really was that he would accept the path taken in Justice O'Connor's last opinion, which was a rare unanimous (was any abortion ruling unanimous?) ruling noting a health exception was necessary in a parental notification law. The ruling very well might have been strategic, since the opinion noted that the lower courts should usually not overturn abortion laws in full because of some flaws. Judge created exceptions can be made or deemed implied. This is useful given the tendency of pro-life legislatures to pass open-ended laws that are clearly illegitimate in some fashion.

Honestly, though, I still thought the ruling -- dealing with a probable small number of cases comparable to here since how many cases would require immediate abortion even without notification? -- made the hope credible. There was no health exception to this federal law. Likewise, the current Supreme Court doesn't like Congress trying to pass laws that try to do an end around of their precedents. The "don't worry we will just assume there is no health risk here" strategy was just that -- past rulings relied on medical judgment, not legislative say-so.

But, the hope was mostly in vain. The thin life line is that the ruling allowed as applied challenges to the law -- if specific cause for concern is shown (but like noted in oral argument -- reaired on C-SPAN last night* -- this seemed like just the case, since litigation as the abortion went on was unworkable given appellate time etc.). As some note, the net result of such a path (though some like it) is that it invites overly broad laws that will hurt women who need abortions for health or other reasons. As with the spousal notification provision in Casey, the old rule was to focus on those who were affected by such laws.

As noted, some think this a good thing. But, in practice, it is problematic. First and foremost, we are dealing with a fundamental right -- higher scrutiny is justified in such cases. [See brief of law professors here, bottom of page.] The matter of vagueness, which the federal law only dealt with partially as suggested by the lower court opinions, was not really covered by the dissent here. The focus was on the 'as applied' factor. I linked to an anti-abortion law professor/advocate that supports this policy. Her essay notes that First Amendment law is different -- laws are treated in a more suspect fashion. Exactly.

"Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code." Casey underlined this was a matter of conscience. The connection to the First Amendment, aside from the associational connection, is clear. Likewise, and Justice Ginsburg's highlighting of some of the pro-life rhetoric used in the majority opinion underlines the fact, so is the selective "morality" at issue:

Throughout, the opinion refers to obstetrician-gynecologists and surgeons who perform abortions not by the titles of their medical specialties, but by the pejorative label "abortion doctor." A fetus is described as an "unborn child," and as a "baby"; second-trimester, previability abortions are referred to as "late-term," and the reasoned medical judgments of highly trained doctors are dismissed as "preferences" motivated by "mere convenience." Instead of the heightened scrutiny we have previously applied, the Court determines that a "rational" ground is enough to uphold the Act, "the essential holding of Roe," are merely "assume[d]" for the moment, rather than "retained" or "reaffirmed," Casey. [cite material deleted]

It is bad enough that reliance is given on congressional facts filled with errors that there is no need for a "health" exception (there is still a life exception). Again, in answer to some who reference medicinal marijuana (a bad precedent anyway) and the like where Congress gets to decide among competing evidence, fundamental rights require special care here. But, the selective morality rankles. A compelling case to uphold the sanctity of fetal life apparently involves allowing abortions, but doing so in such a way that hurts women. Again, Justice Ginsburg:

Delivery of an intact, albeit nonviable, fetus warrants special condemnation, the Court maintains, because a fetus that is not dismembered resembles an infant. But so, too, does a fetus delivered intact after it is terminated by injection a day or two before the surgical evacuation, or a fetus delivered through medical induction or cesarean. Yet, the availability of those procedures—along with D&E by dismemberment—the Court says, saves the ban on intact D&E from a declaration of unconstitutionality.

So, the cries of horror from some about "partial birth" (it's not "birth," so the term is bogus -- I don't really care if medical sorts don't use a term, they don't have naming rights, but misleading terms overall are illegitimate) abortion is not convincing. Putting aside the fact that this applies to second trimester abortions (tellingly one critic spoke about not reading about such cases ... selective reading tends to do that) too where many do not think the fetus is similarly situated (e.g., feels pain), ABORTION IS STILL ALLOWED. The rule is therefore simply irrational except as a selective moral choice, which is fine if you are the women, but quite less so -- especially given the harm inflicted -- when you are the state.**

But, a lovely new wrinkle was added to the majority opinion as well ... the law, you see, is really for the woman's own good. They might have deep regrets after the fact (the fact this regret might arise in all abortions is the charm of the suggestion), so it is best not the give doctors the option of performing such a distasteful procedure. Again, the alternatives are not exactly better. Still, apparently, full informed consent is too problematic. Anyway, this "for the woman's own good" argument is an odious new path for the pro-life movement. The first link suggests the "facts" path, scare quotes intended, also pop up in voting fraud cases (shades of the prosecutor scandal) too. Again, the dissent hits home:

Eliminating or reducing women’s reproductive choices is manifestly not a means of protecting them. When safe abortion procedures cease to be an option, many women seek other means to end unwanted or coerced pregnancies.

I refer also back to the opening quote -- the right to choose an abortion among other things is a deep moral choice with religious overtones. It is too private, intimate and open to debate to be selectively targeted by the law based on one side's view of the matter. Finally, we have the fact this one fits all policy is set in place nationally, "Congress shall make no law ..." But, there is another problem. Where is the congressional power? Ah, interstate commerce. What isn't in some way affected by that, right, even nonprofits! Justice Thomas (with Scalia) avoids the question:

I also note that whether the Act constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it.

The two are sure to reaffirm their Casey dissent and bluntly oppose the right to choose as a constitutional right. Chief Justice Roberts and Alito probably like the "die a thousand deaths" approach since it seems less activist, while supplying courts the continual job of micromanaging the matter to determine if each particular facial attack it legitimate (hopefully keeping them out of the mess in the process). But, Thomas' statement was convenient ... after all, his jurisprudence (see the medical marijuana dissent) suggests Congress probably doesn't have the power. This would ironically lead to a 5-4 vote the other way!

Can't have that. Like, there was no way to address the problem, if they really wanted to do so, right? See the Cato brief (lower part of page) for a serious examination of the problems of such a law as an example of federal power, underlining another reason to give it stricter review. Along with the vagueness issue and lack of health exception (plus irrationality of the law mixed with the sexism of 'can't trust women' strategy), this is a third problem. Current law makes attacks on overreaching respecting congressional commerce power a dubious path to take, and conservatives are rarely consistent on the matter. Still, as a policy matter, it is another problem.

As is this ruling overall ... as the links suggest not only on the specific matter, but for the new path it hints. Brought to you thanks to Bush v. Gore. Expect some more fun over the next few years. And, lots more holding actions.

Time to get full control of the national government.

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* If the Supremes don't want the public to focus on its few controversial cases, perhaps it should not only air the audio of a few select cases, making sure to make an abortion (and race) case one of the few.

** Lawrence v. Texas underlines morality alone cannot be used to interfere with fundamental rights. In a related context, bans on sale of contraceptives to minors, Justice Stevens also noted:

Although the State may properly perform a teaching function, it seems to me that an attempt to persuade by inflicting harm on the listener is an unacceptable means of conveying a message that is otherwise legitimate. The propaganda technique used in this case significantly increases the risk of unwanted pregnancy and venereal disease.

EPA Ruling and "Shocks to the Conscience"

And Also: Seems suddenly to be a lot of promising movies out there. One worthy example is Stephanie Daley in which a teenager accused of infanticide must undergo analysis to determine her competency ... by someone with her own pregnancy issues. Challenging indie with very good performances, including by usual comedic actor Jim Gaffigan. The NYT review does a good job suggesting all the themes covered; the teacher incident -- according to a post-film discussion by the writer/director & in answer to my comment on the use of religion* in the film -- is based on a true event.

In case involving plaintiffs who performed search, rescue, and clean-up work at the World Trade Center site after 9/11, with allegations that federal officials' knowingly false statements about the air quality safety violated plaintiffs' right to substantive due process, dismissal of complaint is affirmed as the allegations do not shock the conscience even if the defendants acted with deliberate indifference. When agency officials decide how to reconcile competing governmental obligations in the face of disaster, only an intent to cause harm arbitrarily can shock the conscience in a way that justifies constitutional liability.

-- Lombardi v. Whitman [Findlaw summary]

The ruling suggests the hesitance of the federal courts to allow, without special permission via legislation, suing government officials acting in their official capacities. A district judge in a related case thought a case could be made that such "shock" might be shown. And, the appellate ruling here left a lot to be desired in shown why it was not here -- "Officials might default to silence in the face of the public's urgent need for information." Apparently, the chance of a default where the public might not trust the government's information didn't come to mind. Reasonable distrust is useful, total distrust leads to anarchy.

[News now comes out that the campus shooter should not have been sold his guns given federal, and maybe even state, law. On some level, we have to trust the government to uphold such laws. If we wish to uphold a regimen in which we have the right to own firearms -- partially since we think it useful for the public safety -- this must include regulation. And, given the modern state, this involves national regulation. Commerce is interconnected, people and guns move cross state lines, and the whole regimen has national benefits. But, we have to trust the government to enforce such laws fairly and adequately.]

Still, the term 'shock the conscience' is a legal one. As with "murder" in the abortion context, even if something "shocks" in the eyes of many, it might not LEGALLY do so in various contexts. But, as shown by Gonzalez et. al., litigation is not the only means to address "shocking" governmental behavior. Good thing, given a lawyer involved noted: "There is a prospect, essentially, that these people will get nothing through the court system." Likewise, it underlines that even if governmental action doesn't reach levels "shocking" enough for legal action, it very well might be shocking enough to be of deep concern to "we the people." This includes misleading the public about the safety of downtown Manhattan after 9/11.

As an aside, the ruling notes that usually we should expect the government to have acted "reasonably" and not have the courts second guess. As shown by the recent abortion ruling in which even the majority opinion admitted the "facts" cited by the law against a single procedure had multiple errors, sometimes this is just too much to assume. Building up the trust so that the people, while still distrusting government given its usual imperfections and all, can reasonably trust the federal government -- esp. the executive -- to do its job will be a long time coming.

[In a NYT story today discussing missile defense in Eastern Europe, we can see a taste of the many strands of the problem.

Another senior administration official, explaining the accelerated effort to reach out to Russia on the issue, conceded: "We were a little late to the game. We should have been out there making these arguments, making the case more forcefully before people began framing the debate for us — and in false terms."

The prosecutor scandal underlines that merely not breaking the law, though even that seems questionable, is not all we have a right to expect from our leaders. This includes avoiding patent appearance of impropriety, something Justice Scalia apparently doesn't find TOO important. No wonder he is the ideal justice for Bush. His tendency to lash out and belittle those he disagrees with also seems to be a quality in many conservatives.]

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* For instance, a fellow classmate and lapsed fundamentalist Christian who challenges Stephanie's worldview is named "Satin." It amused me that Satin's character, if not in all aspects, reminded me of the lead's role in The Sisterhood of the Travelling Pants. Religion should be examined more in film, imho, though we don't really get a positive flavor here. Still, as the d/w noted, the woman minister (the sex itself interesting) might have been sympathetic to the teenage girl here, if she was aware of the situation. We catch bits of her sermons, and pushing to have God in one's life isn't per se a bad thing.

I'd add that a pregnant psychologist questioning her -- though the actress is excellent -- seemed a bit forced to me. My legal side also wondered about the conflict of interest, especially given her past history and current stress. It surely underlines possible underlining biases involved in officaldom in such cases! Overall, again, the film covers a whole lot of ground, its possible limitations doesn't change that. An example of what good indie films can be.

Virginia and the Supremes

And Also: Lots of good stuff on the abortion ruling, and Justice Ginsburg's excellent dissent that channels Justice Blackmun with a feminist face. Some thoughts here. Overall, lame if not surprising Kennedy (especially the dubious pro-life rhetoric) and love that Thomas doesn't have to address the fact the law is none of Congress' business. Consistency would have struck the law down. Good thing there wasn't any, huh?

Cho Seung-Hui, the Virginia Tech senior blamed for the bloodbath, obtained one of the two handguns he used, a Glock 19 automatic, five weeks ago. He walked into the Roanoke Firearms store, put down a credit card and walked out with the weapon and a box of ammunition. The card was docked $571 (€420).

"It was a very unremarkable sale," said John Markell, the store's owner. "He was a nice, clean-cut college kid. We won't sell a gun if we have any idea at all that a purchase is suspicious."

-- Domestic, rare horror


Attackers set off deadly bombs in neighborhoods across Baghdad on Wednesday, killing at least 66 people and wounding others, an Interior Ministry official said.

-- Foreign, usual horror

I realize that we are more upset when it is our own and when it is more up close and personal,* but there is a limit here. A certain multiplier effect, maybe -- we care deeply for the three thousand or so of our dead, while three hundred thousand (or more than thirty thousand, per a number given some time ago by el jefe) of Iraqis are mere statistics. We care more about loved ones etc., sure, but if a mass of people die who are strangers (see Virginia) we care as well. The numbers are surely high enough in Iraq ... plus we as a country have more blame.

Some might say we have blame here too ... lax gun laws, cultural dissension, not dealing with signs he had mental problems, etc. I'm unsure here. Well, definitely about the gun laws. We generally respect broad state discretion, even those who have a "collective rights" view of the Second Amendment. So, can a federal law really do much, surely to stop massacres like this that simply put are rare?

Maybe, a law involving the size of the clip or chamber, limiting the number of shots fired without re-loading. The law very well might be of limited use though ... heck, he could have used home made bombs too. The guy was legal, that is, had the right to buy the guns. And, though he had some problems, it is unclear if he had enough to target him too much without bringing in many others who might be loners etc. but not dangerous. Thus, though some loopholes might exist (certain gun shows etc.), a background check very well might not be too useful here. Virginia, btw, according to some accounts is a major source of illegal guns in N.Y. ... this interstate affect supplies an opening for federal regulation and some more state responsibilities.

Maybe -- again yes we are dealing with a lot of them -- some sort of training regime. A requirement that can encourage more oversight and help provide the person with a certain mind-set that leads to safer gun use. Or, more training to kill if they snap? I seriously don't know what can be done here ... tragedies like this happen. We can think of various ways to temper the likelihood of them occurring, but going overboard -- where have we seen that before? -- doesn't help either. [Deleted citation of Michael Moore movie/Canada; see, e.g., here.]

Our more violent society and the ways it in various cases promotes anomie is a factor as well. That too is a big hill to climb. No easy answers really. The dead in Iraq still lingers too. I don't know either set of people honestly. And, NYC is a city of immigrants and people of all types. My niece is in college, not that one, but my sister-in-law's nephew is probably liable to be tossed into that briar patch (he's in the military, college age) too.

Oh well.

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* One that has the usual bravery and remarkable components. Thus, we learn of Liviu Librescu, a 76-year-old engineering professor and Holocaust survivor, killed while he barricaded his door and allowed his students to climb out of a second-story window, students said. As they say, can you make this stuff up?

Douglas Quotes

In honor of a recent book reviewed, two Justice Douglas quotes:

Activist judges have brought federal habeas corpus into disrepute at the present time. It is guaranteed by the Constitution. It is a built-in restraint on judges - both state and federal; and it is also a restraint on prosecutors who are officers of the court. Our activist tendencies should promote not law and order, but constitutional law and order. Judges, too, can be tyrants and often have been. Prosecutors are often eager to take almost any shortcut to win, yet as I have said they represent not an ordinary party but We the People. As I have noted, their duty is as much "to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one," Berger v. United States, supra, at 88.


He was, however, speaking to a representative of government, the police. And it is to government that one goes "for a redress of grievances," to use an almost forgotten phrase of the First Amendment. But it is said that the purpose was "to cause inconvenience and annoyance." Since when have we Americans been expected to bow submissively to authority and speak with awe and reverence to those who represent us? The constitutional theory is that we the people are the sovereigns, the state and federal officials only our agents. We who have the final word can speak softly or angrily. We can seek to challenge and annoy, as we need not stay docile and quiet. The situation might have indicated that Colten's techniques were ill-suited to the mission he was on, that diplomacy would have been more effective. But at the constitutional level speech need not be a sedative; it can be disruptive.

The first can be applied to Duke, the second any number of stuff, Bushie related especially. Therfore, I leave open the ability to cite them again.

Number 42

And Also: A few thoughts on CJ Roberts, judges as umpires, and the EPA ruling. The replies emphasize the power of spin and changing the topic. Amusingly, after someone made the lame criticism of "global warning," Glenn Greenwald over at Salon noted the same talking point.

I do think it useful to underline that the focus on Sharpton is idiotic ... he does poison the debate, but making it all about him is itself poisonous.

Relatedly, on the real role model front, yesterday was the 60th anniversary of the first day Jackie Robinson played in the MLB (note that there were blacks in the distant past there, so he was not really the "first" ever*). Many players and managers wore his number (42) in his honor. Given the Noah-like rains in my area, Willie Randolph did not get the chance. Too bad, since Rachel Robinson, Jackie (or Jack, to her) noted that the Mets is one of her teams (along with the Dodgers, of course).

There was a movie about the experience some time back and it was underlined that Robinson was chosen for a reason -- there was going to be opposition, some quite nasty, and the person had to be able to handle it. He was a great ball player, but there were other greats in the Negro league. He had to be great and have courage, which as Ernest Hemingway once noted is "grace under pressure." I don't think that is always shown these days ... grace is warranted even when the actions of others suggests it is not obligatory.

A local story discussed an incident that suggested that he could handle the pressure. He was charged for wilful disobedience and disrespect of a superior officer while in the army in response to a racial epithet (the person who said it didn't get charged). While on trial:

He allowed he had indeed been outraged at being called the N-word. He offered a definition of the word given him by his maternal grandmother, Edna Sims McGriff.

"She was a slave and she said the definition of the word was a low, uncouth person, and pertains to no one in particular," he testified. "I don't consider that I am low and uncouth."

Robinson was found "not guilty of all specifications and charges."

And, there is a connection to the "ho" incident:

Sixty-three years after Robinson described his reaction to the N-word, we listened to the Rutgers women's basketball team describe their reaction to being called "nappy-headed ho's." Kia Vaughn in particular echoed Robinson's words.

"Unless, in my case, a 'ho' stands for achievement or something you're getting done and you know that you're a wonderful person, then I'm not a 'ho,'" she said.

The whole team possessed the same qualities Robinson had evidenced on the stand and on the field. Here were people of principle, moral people. Imus was fired.

The women too showed courage in the face of hatred that many would think warranted a cruder response. A lesson learnt perhaps. Remember ... taxes ... a bit of extra time with the day falling on a Sunday. Hope your records are dry.

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* Given the twisted rules of what "black" means, including the "one drop rule," I'm sure a few who were legally "black" also came in.

The number 42 btw was retired in 1997, but those who still wore it at the time was allowed to continue. Thus, Mariano Rivera still wears it.

Court books

And Also: Interesting late night movie entry. The lead had the dreamy above the fray thing down.

A few remarks on some recent reading.

"Jan Crawford Greenburg, a graduate of the University of Chicago Law School, has just published an already-widely-noted book, "Supreme Conflict." So says a quick blog post from that institution providing some useful links. Apparently, partially from the chapter on Justice Thomas, various conservatives enjoyed the book. I lean more toward Edward Lazarus' take ... nothing much new, though some interesting stuff in the second half on Roberts/Miers/Alito (Alito gets a fairly brief mention) and the Thomas stuff leaves a bit to be desired (it is not exactly news that he is not just a Scalia clone and the argument Scalia actually followed him is a bit dubious).

The book is fairly useful, I guess, for a newcomer to the genre. But, other books covered the ground of over half of the book (pre-Roberts), including the superior recent bio on O'Connor. The second link also seems to think the comments on Souter were interesting ... I know I read a bio on him too (less interesting but servicable), but even without that, not sure just how interesting said comments were. Greenburg's somewhat quick takes on some of the issues (a few pages on Bush v. Gore etc.) really didn't do much for me. Nor did various just plain wrong comments, like the fact the media recount confirmed O'Connor's argument that Bush would have won any way. No it didn't. I don't like stupid errors that are easily disputed or checked (like the number of dissenting justices, to note another book, in Korematsu -- three, not two)

As noted, the Alito nomination was dealt with quickly, and we don't learn too much about the Roberts confirmation either. The Miers chapter was fairly useful, but overall, I did what the author feared in her acknowledgements -- skimmed over large sections. I did read the shorter The Great Justices 1941-1954: Black, Douglas, Frankfurter and Jackson in Chambers by William Domnarski, partially since it was in effect four essays on these people, but didn't really like it. The idea that their personalities ("in chambers" is somewhat misleading, since that still sounds judicial) affected their judging is sound enough. And, some interesting stuff was provided in that vein.

But, I was not convinced by the arguments, arguments that basically found all but Douglas rather wanting. Clearly, the author supports Douglas' judicial philosophy and way of judging, but surely the man has many flaws as well ... flaws that hurt his judging in some ways. The book, after all, briefly (rather so) notes his slipshod writing style at times hurt the furthurance of his judicial ideology (the "personal is the judicial" is a subplot in the book, but one not really fully drawn). Tellingly, he cites one case where Justice Brennan had to re-defend a certain point in a later case.

This suggests why the latter is associated with the ideology Douglas promoted, one which a person like Souter suggests can be defended in a more "legal process," case by case sort of way. And, it sort of suggests my problem with the book overall. In its 168 page length (plus notes) it raises certain interesting arguments and so forth, making it worth a read, but in my opinion does not quite adequately defend them. This is seen is a passing note on how the general belief now is that Nuremberg was a troublesome precedent. Some do believe that, including to some degree at least a reader of this blog, but many do not. Such a conclusionary statement therefore is dubious.

Finally, I'm reading a book not about the Supreme Court itself,* but raising various issues that it covers: When Sex Counts: Making Babies and Making Law by Sherry F. Colb. It basically is a collection of her Findlaw columns with added commentary and notes. [Some might therefore choose just to check out the archives over there, but the additional stuff, ready reading, plus the fact I used a giftcard to buy it, made it a good buy for me.] This makes it good reading for the general public and everyone else since it provides snapshots of various issues (at the moment, I'm basically reading one essay a day). It only has the limitations of the genre -- only so much depth in a few pages.

She is a good writer and provides an interesting feminist perspective, adding a bit of animal rights into the mix as well. The focus on the childbearing aspect of womanhood, which some might dislike, suggests her perspective -- while fairly consistently feminist -- has some interesting wrinkles. For instance, she suggests that fetal protection laws are in various ways sound, and ignoring the fact to have a single focus on the woman's rights is misguided. Her reasoning suggests support for fetal pain protection late in the pregnancy, if it doesn't hurt the mother.

I have other books in progress, reserves and all, but at the moment its law focused. Mixed bag, but all do have some benefits. Thus, and I got the first book out of the library, consider this a recommendation to check them out. Mixed one.

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* She includes a chapter on John Roberts' "Feminists for Life" wife that is quite damning of that organization's dubious bona fides, even if one might be sympathetic to the basic idea behind (or one phrasing) it.

News Tidbits

And Also: Is it me, or has the younger daughter in For Better .. For Worse suddenly grown up? Seems like she thirteen or so until recently, now she is sixteen. Oh well ... I remember when the son was around thirteen (or younger) and going to camp. Tempus fugit.

First off, it is a bit striking -- if not too surprising -- that my comment that the governor of N.J. should have worn a seatbelt was deemed controversial to a few people. Though I did really touch upon the topic, focusing on the moral obligation of the guy basically, the concern was that mandatory seatbelt laws are a threat to liberty. Note that this is not just your average Joe -- it is a government official on the public payroll. And, yeah, there is logic to the comment of one in response to such concerns that major injury tends to have to be paid for by the public in some fashion.

This was deemed "socialism," a word that really is more scare tactic (the word is based in "society" ... is "society" a problem too?) at any rate. But, it does touch upon something -- those who helped bring Bushies into power often have a broader agenda. Their concerns are deeper, really a dislike of things a vast majority take for granted. The fact some ignore this fact to concern themselves with much lesser similiarities (e.g., those who support Nader because Gore and Bush are "the same") provide a dangerous sort of missing the forest for the trees.

You can get in trouble by trying to "connect the dots" too easily, but ignoring patterns is problematic as well. The prosecutor purge is but one case in point, seen by some as nothing to worry about. Then, we see stories with tidbits like:

The Bush administration was so determined to pursue this phantom scourge that it deported a legal Florida resident back to his native Pakistan for mistakenly filling out a voter registration card when he renewed his driver’s license.

The 'phantom scourge' refers to a related story, linked there, that a commission didn't find a real voting fraud scandal, at least not of the sort certain Republican operatives are pushing, though the medicine for this "disease" is far from painless to the mass of qualified voters. [It rankles too when some of the laws themselves are problematic, like felony disenfrancisement.] The study having a bad conclusion, the Bush Administration had to tone it down. This too is common practice, though one shot examples might let us forget it [e.g., is the Duke prosecutor usually reckless? or only in media laden cases? has this been addressed in any full way?].

Reality of course need not get in the way of policy ... this has happened before now, surely, but we do get loads of examples these days:

Students who participated in sexual abstinence programs were just as likely to have sex as those who did not, according to a study ordered by Congress. ...

The federal government spends about $176 million a year promoting abstinence until marriage. Critics have repeatedly said they did not believe the programs worked.

Bush administration officials cautioned against drawing sweeping conclusions from the study, saying the four programs were some of the very first established after Congress overhauled the nation’s welfare laws in 1996.

No, the "reality based community" are not usual ones who draw sweeping conclusions from mixed evidence. They are a bit less faith based, shall we say. On the issue, we have a story on how Hispanics who move to this country lose their religion. [Btw, Charles Bell, the NY Daily News religion correspondent is retiring. Good run, guy ... you Saturday columns were appreciated in their coverage of an electic group of religious faiths.] What does this mean really? Is the "American way" often one of "no religion?" Or:

“When people get here they realize that maintaining that pro forma display of religiosity is not essential to doing well.” ...

Like Ms. Lemus, many Hispanics in Richmond said that even though they no longer attended church, their religion remained important to them. This confirms research findings that Hispanics who said they had no religion represent a small subset; many more Hispanics are living rather secular lives but still identify themselves as Catholics or Christians. The phenomenon is similar to that of “cultural Jews,” said Roberto Suro, director of the Pew Hispanic Center.

“You can feel very strongly about the Virgin of Guadalupe and believe your children ought to be baptized, and still not participate in the Catholic Church or make it a major factor in your life,” Mr. Suro said.

As usual, "religion" has a bit of a selective tinge, surely when we keep on hearing that perhaps 90% of the population or more believes in God.

More on Imus

And Also: The governor of N.J. didn't wear his seat belt, which surely contributed to the breadth of his injuries, that might just have killed him in a slightly different situation. A lesson for you kids. Actually, the guy deserves a decent amount of scorn, as we AGAIN have to suffer through an extended time of a N.J. mayor being out of commission (not quite the scandal of his predecessor, yes) because of stupidity.

It seems to me that Dr. Cuddy has not really gotten much respect on House. Last episode, she had a stress related illness, a result of thinking there might be a risk to fellow passengers onboard a flight home. More than once she was portrayed as letting her emotions get to her, though last week they helped to save a pregnant woman and her fetus. Dr. Cuddy did have her moments that underline she is a good administrator (her key role), and Dr. House made sure to say he respected her skills as a doctor as well. But, I do think it might be useful to have an episode that focuses on just that.

Now, some might say that overall she comes off as competent, her emotional side just part of the wider package. Still ... Dr. Cameron has that too, but her skills as a doctor also come out. OTOH, now she is going to the other extreme, with apologizes, the "pretty white girl ho" route. Note how this isn't quite the same thing as calling real life black college girls "nappy haired hos" (one caller to a local sports show even brought out a children's book with "nappy" in the title -- ignoring the 'ho' part, the book was meant as a response to badmouthing that hairstyle ... I'm sick of such cluelessness*). Ironically, she decided to have a causal affair (more power to her, seriously) with her fellow intern, who is real life she is planning to marry.

"We still find his statements to be unacceptable, and this is an experience that we will never forget," said Vivian Stringer, coach of the university's Scarlet Knights women's basketball team.

Stringer said she hopes the furor Imus sparked with his racist remark will be a "catalyst for change" and convince other raunchy radio jocks - and rappers as well - to clean up their acts.

The coach said they took no pleasure in Imus getting fired from his nationally syndicated WFAN show and said he deserves "credit" for personally apologizing to the team. She also told Imus' critics to stop checking to "make sure he is dead and following up with how well he was dressed in his coffin."
-- NY Daily News

As to the Don Imus matter ... Richard Neer, a calm voice on WFAN radio station (Imus' NYC affiliate, where he served the "Howard Stern" role of giving weight to an otherwise all sports station) who I respect, noted this morning that his opinion was that the best path would have been to give him the two weeks, and then see if he shaped up his act. There is some merit to this path though I wonder if Imus really cared to be under the microscope (sort of a worse punishment than being fired?) in this fashion. I'm not sure if someone so far into his career really was ready to change his ways ... self-censorship, and some even fairly innocent comments might get him in trouble now, does not seem to be his way.

And, this might be seen as a "straw that broke the camel's back" penalty. [As to the breadth of the problem overall, see here.] Some think this is unfair -- but putting aside that yes blacks do have a special history of victimhood in this country (if in Europe, Jews might fit the bill), is it not true that sometimes things work that way? Some things fall by the wayside, but then something happens, and the stars are in alignment for your downfall. The reason why that specific incident is the damning one changes over time, but generally speaking you lose your benefit of the doubt.

And, your past starts to haunt you, including things that probably deserved a bit more attention at the time. A tasteless comment about young black women athletes (not just black ... btw this underlines the stupidity of using Sharpton as the spokesperson ... a much more apt person was their coach) seems like a good enough as any choice. BTW, I think Joe Conanson is a tad over the top in his latest column. Who knows it his charity work was not truly felt? And, not only he gets tax breaks for such things. Still, those who think Imus cannot be replaced are a bit much too -- there are others who are willing to work hard for charity, including using their own funds and time -- and others who can provide an independent perspective of the news with some verve ... without the distasteful aspects that got him fired.

This underlines the point -- if this was one incident, Imus might have got away with it. But, like Trent Lott (and, his apology tour of sorts -- including going to Sharpton's show, which was a bit disgusting, honestly ... it actually helped Imus as shown in the footnote below, and not only in a good way --- reminds one of that), it was not only one incident. [Thus, Harvey Fierstein sort of misses the point by wondering why a comment by one star on Grey's Anatomy, whose comments were criticized even by those on the show, was not treated the same. He is right to note that we are selective in our outrage ... so it goes in life.] As a black caller to Richard Neer's show said, I deep down do not really care if he was fired or not. I do hope it suggests, as was mentioned on Air America, a certain disapproval of crude talk that will carry over into other areas as well.

Neer and others also noted that the fact Don Imus did some good off air etc. was not quite the point ... it was the on air personality that we focus upon. Now, in fact, RN noted he is not a big fan of the guy, and I doubt off air Neer is not the evenkeeled sort he is on air. But, others do alternate -- some note hosts like Tucker Carlson can turn their shtick on and off as need be. To toss in a perhaps not totally related point, some historians note the importance many Founding Fathers gave to public appearance -- "character" was in effect their public face, even if privately they were somewhat different. The fact is still important in respect to public figures in the current day, one reason I'm so upset when some act in certain divisive/destructive ways that promote bad things.

Finally, Neer also noted that it underlines the power of media watchdog groups -- he didn't mention Media Matters and the like specifically, but did note the presence of blogs. He said a rule in media, especially radio sorts, is not to emphasize one's mistakes. If you do, even if it is fairly trivial, it will be focused upon, probably more than it deserves. Or, more than you want it to be. Now, you cannot get away with that as much, can you John McCain? [safety in Iraq] I'm not sure if this necessarily is a great example of the practice -- he is a national radio/tv personality, and such people have got in trouble in the past for making stupid comments. [Think Howard Cosell]

But, it is one of those moments that linger, that help us understand wider problems and concerns that hit upon society overall. I guess as a final comment, one wishes some good came of it all. Things are not "meant" to be, but this does not mean we cannot do the best we have with what is out there. Such is our responsibility, to end on a philosophical note, I guess.

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* This includes, one by someone claiming to never have called a talk show ... now required to do so to voice an opinion voiced by many others ... every continual references to Al Sharpton and Jesse Jackson or rap stars. I commented on this already, but again, this is b.s.

Are we saying that the only people upset are these two or like people? Are we saying that many blacks actually share Stanley Crouch's distaste of such language, including many black women akin to those upset when one black activist in the 1960s said something like the best place for them to be is prone? It is the mentality of a five year old, and damn I'm sick of it. This includes this sense of victimhood behind the comments, victimhood much broader than of the "let's not be too holier than thou now" sentiment sometimes deserved.

A liberal sometimes is said to be someone not totally sure that they are right ... though some do think that ... and that more than ever seems like a good path to take. Surely when one is wrong! Lol.

Sam, Duke, Imus (and a bit of Bush slime)

Bush Update: More blatant breaking of the law ... email edition. [Necessary for oversight and such, not just some technical matter to shrug off.] And, focus on bogus claims of vote fraud, victimizing people along the way ... and democracy overall. Darn democrats. Oh wait ... But, it's just about his absolute right to fire. Didn't Clinton do it too? Oh, and the "oops" excuse doesn't pass the smell test.

Tomorrow's is Sam Seder's final weekday spot at Air America ... again, I'm not sure why they are disposing of him. I don't know this "Lionel" guy that is replacing him, but don't trust fake radio handles like that. Thom Hartman was a good replacement for Al Franken, but if we had to replace Sam, I'd favor a younger voice ... the regulars are honestly a bit square. Thinking maybe like the tone of some blogs, like Feministing ... twenty something etc. Oh well.

I honestly am not a big fan of celebrity crime stories, so the Duke matter does not interest me too much, and I have not kept up with the details. It does seem that some of those ... not all admittedly ... so passionate about how this was a major civil liberty problem are a bit selective in their concern. Oh look, the left are selective in their concern for defendant rights, etc. One hopes that even though this is an atypical case in some ways, the concern for prosecutoral abuse will carry over. Sadly, I have my doubts. In this case, the system basically worked -- burden of proof, media coverage, and so forth. One problem that comes to mind is that now the usual case -- date rape allegations that are true -- will be given a more dubious eye than they sometimes deserve. This is one reason why targeting the innocent is so problematic.

As to Don Imus ... Atrios on SS hit upon it -- the reason why he got burned while some on talk radio rant and spew garbage on a daily basis is that we expect more of him. Imus actually tries to supply an independent voice, and has various mainstream sorts, including members of Congress, on his show. Also, it is different when you crudely discuss public officials like Clinton or Obama. Calling student athletes hos is a lower blow. Finally, this "but they do it too" bit respecting blacks is annoying. Now, I think his attempt to go the Trent Lott route by going on Al Sharpton's show was moronic (I know someone who hates the guy so much that it colors the cases when she admits something wrong was done ... if he protests, it poisons things), and there is the "I can dis my own" deal.

But, Imus is a major broadcaster ... well, who knows now, not a rap artist. He did something wrong here, and even if those who criticize it have their own blind spots (we all do), it still is very wrong. And, it is not a singular case ... the tipping point has been reached, and a message sent about respectable fare. This includes when the more retrograde sorts on the talk radio right do it without the (messy) mix with superior fare.

I wonder who will replace him. Sam Seder? Rachel Maddow (tongue in cheek, she referenced the "talk" on that possibility)? Yes, I'm waiting with baited breath, or whatever. Meanwhile, per NYT, someone was not able to go the meeting between the basketball players and Imus:

Gov. Jon S. Corzine suffered a broken leg, several fractured ribs and cuts on his face Thursday night after his state police vehicle swerved to avoid an apparently out-of-control driver on the Garden State Parkway and hit a guard rail, according to state officials.

Odds and Ends

And Also: Air America started off with a nice line-up back in the day and only Randy Rhodes (who is kinda annoying if smart) basically (one hour shorter) has the same [weekday] spot. Oh, I mean, after they dispose of Sam Seder for some "Lionel" guy after Friday. Continual political loser, last time to Andrew Cuomo for Attorney General, Mark Green is trying to tell us this is a good thing. As Atrios nicely noted "Morons." Just trying to ruin my mornings, aren't you?

Baseball: "Frigid weekend weather caused frost that damaged crops across the Southeast, raising fears that peach, apple, blueberry, strawberry and wine grape crops were harmed." And, it blocked the Indians/Seattle four game series entirely. This and other problems led some to complain about scheduling, including starting such games in the cold weather open air stadiums at this time of year. But, this is the second week of the season, and something like that (four days of games called by snow) simply never happened before.

IOW, the weather is somewhat atypical, surely something schedulers (who have to deal with the limitations of balancing the needs of all the teams, plus various rules) did not have an obligation to assume. Nor should we blame the players' association or whomever also is involved in limiting the choices that led to these problems. At least, not too much, since this year is not really truly typical. The Indians still have problems ... MLB decided to have their next game in neutral Milkawakue (a dome?), the stand-in for Major League, starring those same Indians.

Anyway, Mets came back vs. the Phillies bullpen and the Yanks finally had a quality start ... from Pavano. First win for him since 2005. The rest seems to have done him good.

TV: King of Queens started its final set of episodes. Though the co-star Leah Remini, a NYC native, hopes for more, it does seem that the ninth season will be its last. Its time -- first off, it is getting loads of money in syndication. Second, Kevin James, the "king," apparently is now getting some film work (so said a CNN piece, not that I'm totally sure it is THAT much).

Most importantly, the quality of the show warrants hanging up the hat, so to speak. This is shown by watching it on syndication, which I had been doing in the last year or so, and noting the lower (and at times tired*) quality of later episodes. Good run ... somewhat hit or miss, but moments of truth, amusement, and a pleasing way to spend a 1/2 hr ... anyway, Remini has the mixture of babe and bitch (she is clearly her father's daughter) that is alone worth watching.

Library: A nearby library provides a useful way for me to check the Internet at lunchtime, the shorter 15-20min. computers especially efficient to keep track of things without lingering. The computers recently include privacy screens, screens placed over the regular screen to help keep others from seeing what you are viewing. The problem is that they cloud the screen and block the edges, causing a few (including I) to want to take them off.

But, this really isn't fair -- if I want to freely cruise the Net, especially on a first floor computer that general patrons might glance at, such screens is a fair balance. The "privacy" is not just mine. And, the balance is not always going to be costfree. Such is life ... of course, I say this after taking it off once and being criticized for doing so (but later, I saw someone being allowed to take it off ... the fact it was a cute woman had nothing to do with it, I'm sure!).

PC Rightists: I responded to a Dahlia Lithwick Slate/Outlook piece discussing the not completely loyal Bushie who took the Fifth when Congress wanted to question her on the prosecutor purge. This allowed me to cite some of my recent comments on religion and public life. I argued that it was fine for religious people, including from fundamentalist leaning universities, to serve in public serve. That is, unless they cannot do their jobs. I was "wary" of some of them (other posts underlined why one might be ... both academically and otherwise), but so be it. Render to Caesar and all that, and you will be fine.

Since I am a "liberal" and such, obviously this could not really be taken at face value. In fact, I only was playing being fair, only allowing religious faiths I agreed with to serve in public life. Likewise, I was "wary" only of religious people, or rather, religious people I didn't agree with. Such a liberal hypocrite! Oh please. This political correctness from the right is so tedious. The article was about religion, so I focused on the point. And, is anyone not "wary" about some religious group? (How about those that promote jihad?) But, if you don't go all out to underline your bona fides -- and they probably won't be believed anyway -- certain sorts will attack you for hypocrisy.

People on the right can be quite touchy ... and they do seem to be, uh, assholes about it sometimes. More so than the left? Many think so. Either way, it does get tedious sometimes.

---

* Have I said recently that Gilmore Girls has gone beyond this point, and then some, ruining it for me? There you go. Friends also was on just too long, at least two seasons, coasting on sentiment and regular viewers.

Happy Easter

And Also: The Yanks have not had a clean pitching performance yet, this time winning a 10-7 game off A-Rod's grand slam in the Ninth. The Mets/Braves' aces, and friends, went head-to-head, and the Mets gave the game away on errors. A loss vs. Smoltz is okay, especially with the win the day before (11-1), but a loss of that nature is annoying.

[T]he mere fact that a governmental practice coincides to some extent with certain religious beliefs does not render it unconstitutional. Thanksgiving Day, in my view, fits easily within this principle, for, despite its religious antecedents, the current practice of celebrating Thanksgiving is unquestionably secular and patriotic. We all may gather with our families on that day to give thanks both for personal and national good fortune, but we are free, given the secular character of the holiday, to address that gratitude either to a divine beneficence or to such mundane sources as good luck or the country's abundant natural wealth.


-- Justice Brennan

Easter has many components. This is reflected by the fact that the very word (per Random House) appears to have roots in a pagan god with connections to the word "east." Spring brought forth recognition of rebirth and life, and the Easter egg is not just some Christian entity. I am of the opinion that questions of life and death, especially the meanings and rituals growing forth from them, generally have some religious component -- such "ultimate questions" part of the mix in my broader understanding of that term.* Thus, aside from the religious nature of the character, the story of life and redemption found in A Walk to Remember (redeeming love thru the path of a dying teenage girl) is inherently religious in a fashion, plus a proper film to play as Easter began last night.

[I also picked up a bit of The Passion of the Christ as well. I can see what one means when its almost pornographic use of violence is mentioned -- Jesus is beaten mercilessly, even thrown off a bridge or something while chained, rather much even before being questioned by the Jewish leaders. Imagine what happens when he is beaten by the Romans! It also is interesting to note that both Jesus and those leaders are fully fluent in Latin, not using go betweens while talking with Romans. The use of original languages is interesting, but its attempt at authenticity cannot hide its dramatic flourishes plus the fact it was sorta boring after awhile.]

And, though millions obviously celebrate the religious aspects of the holiday -- in the Bridge to Terabitha, Easter is the only time the family goes to church -- it should be noted that it is one of those days that we honor in a "civic religion" sort of way. That is, in some fashion, we honor its deeper meaning, but not in any strongly ritualistic way. Some might find the emphasis on candy and Easter bunnies as sacrilegious or a sign of lack of respect for true religious values, but in the long way it often does honor the true meaning of the holiday. The honoring of life. Thus, it seems fitting, also in honor of poetry month, to cite a bit of Walt Whitman (quoted in the book cited in the note):

O I see flashing that this America is only you and me,
Its power, weapons, testimony, are you and me,
Its crimes, lies, thefts, defections, are you and me ...

The war, (that war so bloody and grim, the war I will henceforth
forget), was you and me ...

I am for those that have never been master'd,
For men and women whose tempers have never been master'd,
For those whom laws, theories, conventions, can never master.

I am for those who walk abreast with the whole earth,
Who inaugurate one to inaugurate all.

I will not be outfaced by irrational things,
I will penetrate what it is in them that is sarcastic upon.

But, yes, this day also has a Christian flavor. Thus, I offer this core expression of its message, an excerpt from the Sermon of the Mount, Matthew version:

Blessed are the poor in spirit,
for theirs is the kingdom of heaven.

Blessed are those who mourn,
for they will be comforted.

Blessed are the meek,
for they will inherit the earth.

Blessed are those who hunger and thirst for righteousness,
for they will be filled.

Blessed are the merciful,
for they will be shown mercy.

Blessed are the pure in heart,
for they will see God.

Blessed are the peacemakers,
for they will be called sons of God.

Blessed are those who are persecuted because of righteousness,
for theirs is the kingdom of heaven.

No matter how you say such things, a worthwhile thing to honor today and always.

---

* "We have or may have a religion of unselfish devotion to others and to our own highest ideals," he prophesied, "a religion of character, of abiding enthusiasm for humanity, and of complete intellectual honesty. Into our little human lives it will bring something of the grandeur of these infinite surroundings, a high purpose amid which and for which we live."

-- professor in 1878, summarizing the secularist freethought creed, qtd. by Susan Jacoby in Freethinkers: A History of American Secularism

Voting Rights in Florida

And Also: The "low" number of U.S. deaths in Iraq/Afghanistan clouds the very troubling (scandalous) breath of the wounded. A little book by Ronald J. Glasser MD, Wounded, discusses the fact ... mentioning as of 12/05 that over 17,000 were seriously wounded, not counting the psychological. And, our ability to care for them far in the future -- as will be required -- is unclear. Also discussed is the policy of the sometime physician -- his/her oath of care apparently no longer there if helping to question prisoners in Gitmo or the like, including "harsh" conditions. So noted a Pentagon memo. What have we wrought?

The change will bring Florida's procedure for restoring the civil rights of felons who have served their sentences more in line with the 47 other states that allow for automatic restoration. Only Virginia and Kentucky do not. ... Florida's new rules of clemency require that felons be categorized in one of three tiers, which will determine the process they must follow to obtain restoration of their civil rights. Florida's measure won't automatically restore civil rights to the estimated 950,000 former felons believed to be living in the state, but it will significantly expedite the process.

-- Felon [voting] rights on faster track

All the same, "Attorney General Bill McCollum, who intensely opposed the measure, warned that it will incite more crime." Yes, we all know that depriving those who committed felony and served their time (and paid restitution, per the new rules) ... and repeat offenders/violent offenders will have a harder time of it while sex offenders, murderers and various types of violent offenders will have to be crime free for fifteen years to get a shot ["Tier 2" and "Tier 3"] .. is a major way to stop crime. The governor himself admitted that the new policy is but a compromise -- the restitution requirement, for instance, is a wealth classification, but clearly this supporter of chain gangs is a libbie at heart.

Seriously, it is probably more likely that easing those who served their time/paid their debts back into the community as full citizens would help lessen recidivism. McCollum also doesn't want to accept the structural (and probably some direct) racism of the old policy. "A constant undercurrent of the debate has been the issue of race and incarceration: 50 percent of the state's prison population is black, though only 14 percent of Florida's total population is African-American." Nah ... it is just about people committing crime. See, it's something in their blood that causes certain races to disproportionally be in prison.

Again, reality dictates a series equal protection issue here, the voting issue making it also a Fifteenth Amendment concern. This problem -- while "hanging chads" was the immediate focus of the media and court challenges -- was also a major issue in the 2000 election. There are many reasons why Bush "won" in Florida, but a core one was the felon disenfranchisement policy. The most odious aspect being the use of a way to list felons that was purposely overinclusive. Thus, an underlying policy that left a lot to be desired was carried out in a way that led to by some numbers over 90% false positives. The election officials had to follow the law, but not that way. A way that was patently unconstitutional with any respect of the true meaning of the Fourteenth and Fifteenth Amendment.

But, the only "equal protection" concern the Supremes had involved one man. Well, another, Gov. Crist (who announced the new policy referencing someone else with a similar name, noting the "'holy week of redemption"), is to be honored for recognizing what really matters.

[More here, see also comments.]

Odds and Ends

And Also: Marci Hamilton wants to ignore that, yes, the First Amendment doesn't treat religion equally. Free exercise is especially secured and establishment banned. Also, the Smith case did not "reiterate" an old principle ... it changed fifty years of precedent. She cites Gillette, but this is blatantly misleading. First, yes, precedent underlined that free exercise relating to action could not be absolute. This includes obligations like military service. And, even here, that ruling concerned selective opposition to war. Per policy, and perhaps by right, total opposition will get you a special exemption.

Eric Alterman, I believe, was on Sam Seder (Air America) today and noted the importance of stories. IOW, a problem with Democrats is that they rely on facts and policy, not story lines ... consider John Kerry not wishing to deal with the Swift Boaters because he didn't think people would take them seriously. Bush has a story. You can have both -- Obama and Edwards have both stories and facts on their side. It was also noted on the show that Bush's base supports him, not particular policy moves. Thus, if Bush argued that pulling back from Iraq was fine, they might just support him. This makes sense ... recall mention by John Dean and other of that "authoritarian" tendency, which relies on trusting authority.

As to yesterday's post, note my use of the qualifier "installing controversial nominations." On principle, I am not a big fan of "recess" appointments, surely the use brief adjournments to install nominated persons that were shown to have had confirmation problems. The reality of Senate holds -- of some value when dealing with local positions where senatorial courtesy is of some value -- shows that delays aren't always a matter of the significant opposition. But, a controversy really underlines the whole point of confirmation. Still, some argument can be made probably that -- especially for minor positions -- recess appointments are not that bad, relatively speaking. Still, there are various positions and individuals where it is blatant. And, overall judgment, including after important elections like '06.

Finally, Sen. Hatch admitted error (see yesterday), though the cat is already out of the bag, and he did prove his loyalty (if that was the purpose). TPM analyzes how exactly he bs-ed so badly, though his readers disagree if it was bs or simply a lie. The post underlines the dangers of both, though one is slightly less odious.