More on Recent Rulings

And Also: Watching the "encore" of yesterday afternoon's game. Something that local teams should encourage - ball girls. Or, young women. Philly had a cute one in white, looking like this was tennis or something.

The concept of freedom sketched by these three opinions is an thin one. We have the right to listen to TV ads from PACS. When the executive branch wants to lecture the rest of us about how we should believe in God, we have no right to challenge their actions, taken in our name and with our funds. And when the government sets out to make our children conform, they'd better not give back any guff about the emperor lacking clothes.

-- Garrett Epps

The article concerned the favoritism practiced by this Court, which is different from the justice of specific rulings. I like that he emphasized this, noting that the campaign finance case raised complex issues that really have no easy answer. But, as I said as to "activism" of this Court, you respect them less when you look at the big picture. Epps also highlights the perils of myopic judging. As he noted, today the executive makes many of the individual funding decisions.

So, only giving standing to specific legislative actions robs the principle behind the First Amendment. As Epps notes: "it didn't overrule Flast -- that would have seemed radical," but ... apologies to Thomas ... this really amounts to a matter of aesthetics. "Despite their differences, there is no doubt that all five justices are pleased with the progress they are making on their conservative constitutional rug." Window dressing, which can be a useful device in politics.

As to the race ruling, it is useful not only to look at as a constitutional argument. At least, in a specific sense. As the response to this post notes, why is the sense of entitlement suggested here a good thing? And, traveling to another school has benefits. I'd add in my own experience, the local (parochial) school I went to for junior high left something to be desired, while I traveled to high school by choice of my parents. Also, overall, a diverse student body (and I'd add trip to work ... i.e., the average subway ride) was a good thing.

See also, a recent "For Better or For Worse" story thread concerning a "special needs" student that the younger daughter has befriended.

School Case

And Also: Mets sweep. Yanks go ahead ... but don't finish the half inning before the game is called. Under new rules, last night's game was suspended and will be finished in July. Let's play 1 1/4!

[The term ended with a bang ... after the school cases were decided ... with a surprising change of heart in the detainee cases. The justices now will hear -- with broadly drawn questions to consider -- an appeal to rulings that upheld stripping habeas appeals to those in Gitmo. Very good, but still more time will pass, which would be unfortunate even if there are at least five votes to overturn. Meanwhile, they will rot some more, and our nation will be shamed ever more. Be nice if Congress did their job and underlined that statutory habeas is not stripped by overturning the Military Commissions Act of 2006.]

More on the school choice ruling from moi.

A lot can and was said about the ruling but a few things do come to mind. First, once you read the opinions, you do get a sense about how bogus it is in various respects. I just love the "originalist" reading of Brown, where CJ Roberts quotes a co-counsel as well as the opinion itself to show that the plurality's reading is really just following the "founding" approach.

The fact that Thurgood Marshall and the justices in the majority (Brennan came on the Court soon after) understood Brown soon enough as more than just a mere case of avoiding state mandated segregation is simply ignored. It just rankles when one reads such claims, underlining the ultimate fiction of all too many "originalist" thinkers. It also underlines how law changes and develops as situations change, the focus on blatant legal segregation changing to harder questions as times went on. Another flaw with overly strict original understanding that centers only on the founding years.

[Some might challenge what I say here by pointing to the holding of the opinion of the Court, which leaves open -- if they go through hoops that would satisfy Kennedy -- the possibility that a narrowly drawn program would be acceptable. Sorry to say, I don't quite think that is the primary message sent here. See also the first comment to one of these "the ruling is really narrow" arguments.]

Push comes to shove, it underlines the failure of this brand of appointment. It very well might be appropriate, especially given electoral choices, that we have an ebb to some extent of the judicial ideology of the 1960s. But, it should be done honestly. This ruling was just one case (ditto the abortion ruling) where the new Court was not honest. They did not forthrightly overturn past precedent, but did so sub silento. In effect, do what Scalia/Thomas* favors, but with a bit more of a happy face. This btw is often better for their purposes, since it is less blunt (causes less trouble), and harder to attack. It is not unprincipled for conservatives to be judicial activists when it suits their ideology -- they get paid to do things after all -- but it is hard to take when their supporters whine about "activism" as if it is only what "liberals" do.

The activism here is toward a certain understanding of "equal protection." The choice is made, but you wouldn't know it from the opinion.** The Constitution does not say "color blind." It says "equal protection of the law." Both blacks and whites are treated equally here. [All students take part in a program where race is a factor ... to promote a more diverse system for them all.] Yes, that sort of test was used in the 1880s to uphold miscegenation laws (both blacks and whites couldn't marry the opposite race).

But, the point of such laws was obvious -- the races were meant to be apart, and social race mixing was immoral and dangerous. To equalize this to bringing the races together in public schools, the institution in place to adequate the citizenry as a whole in the first place not only aspects of them, is fictional. Furthermore, what if the true path to equality was being in this together? Would not such programs promote "equal protection," and thus be legitimate? And, many precedents and common understanding underline the point. Equal protection was in place to guard against malicious (invidious) action.

Sometimes, it was remarked that use of race by itself was problematic. But, race was used to help repeatedly. Life was racial conscious in this fashion, and the courts did not strike it down be it in handing out jobs to disadvantaged groups, drawing electoral lines, or nominating various officials (and judges). It was arguable if in some sense this sort of thing was mandated by the Constitution. In some fashion, especially given past history, it probably was. But, even if it was not to be mandated by court action -- that was left to school systems and the like blatantly legally segregated -- this surely didn't mean it was barred.

Ditto guards against de facto segregation ... putting aside the fact it was likely in some fashion mixed in with state action. On this point, the majority -- see the original comments linked and cites therein -- is woefully wrong. It also underlines how this brand of justice is not even too satisfactory on a "balancing out excesses of the past" basis. Justice Thomas loves to rail against use of the courts as oversight boards over institutions deemed constitutionally infirm. And, many thought federal judges went too far trying to deal with school segregation, especially when the districts weren't directly segregating any more (as if this was necessary for malign neglect). I'm not sure why this makes voluntary local action a problem. Clearly, too "activist" courts is not the only concern here.

But, in a fashion, this irony is not too surprising. In fact, it has a well worn feeling to it. The Fourteenth Amendment was enacted to give the feds (especially Congress -- see @5 -- but the courts too, as a sort of fallback) more power and responsibility to enforce national rights, specifically equality. And, some efforts were carried forth by the Reconstruction Congress and Grant Administration. Unfortunately, all too many of these efforts were deemed unconstitutional, including via the Civil Rights Cases. Likewise, the federal courts neglected the rights of the newly freed slaves, taking their lead from changing national priorities. The executive and legislative action was deemed not only optional -- not compelled by the Constitution -- but unconstitutional! Some of these cases, hard as it is to believe, are still good law.

Such things suggest why Justice Breyer's dissent was so bitter. Breyer naturally favors -- when it is deemed proper (cf. religious voucher plans) -- legislative flexibility. Thus, his support for sentencing guidelines with large amounts of judicial flexibility, including judicial fact finding (Sixth Amendment be damned). We should not be surprised, therefore, his dissent has a few heart-felt cries from the heart almost begging the majority to let locals experiment -- he doesn't know if they are right, but darn, let them try. And, though Rehnquist Era precedent might makes things somewhat harder, it too is still at least somewhat on his side (shades of Thurgood Marshall/Payne v. Tennessee what of this precedent? and this one? and ...). Finally, equal protection overall.

He might be wrong. I think not ... I still find it hard to understand why "societal discrimination," for instance, is not a serious problem that might require taking race into account. As to that, Kennedy forthrightly admits you can do it. I said I respect his opinion, and do find his concerns about race conscious problems (briefly referenced by Breyer ... you wish for a bit more than that) valid. So, some line might be drawn -- as such lines tend to be, it might be somewhat ad hoc. But, the ruling was not some splitting of the baby. We really aren't told what is okay. And, I'm with Breyer ... I don't really see the distinction here in practice. The fiction that de facto segregation is not really a problem that requires hard solutions doesn't help.

Stevens' opinion has a ring of truth on that point -- it's akin to the saying that the law in its infinite wisdom requires both the rich and the poor to not sleep under bridges. We can pat ourselves on the back for not having race conscious programs while society remains all too race conscious and divided. Just don't use the Fourteenth Amendment as justification.

---

* I discuss here Thomas' concurrence, a prize to be sure, in the bong case. Do we really -- even if his selective reading is to be taken on face value -- really want to go back to the legal regime of 19th Century public schools? The age where various states, not all mind you, found it perfectly acceptable to read Protestant Bibles in public schools, and use corporal punishment toward Catholic students who refused to take part.

** The choice is deemed obvious. See also, Desperately Seeking Certainty by Daniel A. Farber and Suzanna Sherry about legal theorists with one track minds who too often set up strawman opponents. The book is at heart about the problems with having one track minds when practicing judicial interpretation. But, it helps to be myopic, since it allows one to focus on your favored hobby-horse.

Odds and Ends

You Kill Me is a wry little movie with some nicely amusing performances. The Mets rebound, surviving a June swoon, the Yanks revert ... ruining a burst of success. Might win today though. David Letterman showing some verve this week ... but the Gitmo poetry is questionable.

See comments here regarding the school choice ruling. I'm sympathetic to the Kennedy position, but it is artificial and opaque.[See here for discussion.] Life is messier, even if I'm probably more wary than the dissent. Stevens is again pretty personal, huh? Anyway, what is okay? Take THAT case!

Supreme Court Watch

And Also: Though obviously she is innocent, since no one in the administration could do wrong, the NY Daily News is on Whitman's case. Like here. BTW, you struggle in hard times, but this administration is not one to admit even questionable moves ("no one could have known ..."). Whitman also is known to have been an enabler, letting the administration use her as a "reasonable voice" in their promotion of unreason.

Not a good day for liberals at the Supreme Court.

My libertarian side is not upset at the 5-4 ruling on campaign finance, since I simply don't think an issue ad by a non-profit corporation (even in promotion of something for profits might support, namely right wing judges) is the biggest threat to democracy we have to worry about these days. Not by a long shot. I'm wary about limits on campaign ads ... when unions and non-profit ideological corporations are at stake ... definitely so. Some will highlight the fact we are talking anti-abortion here. So what? The principle applies to pro-choice too. There are means to raise all boats and so forth to deal with the issue. Limits on this class of institutions are dubious enterprises.

The 5-4 EPA ruling was statutory, but I reckon that the libs were probably right on the matter. There was also a 7-2 (Souter opinion, Ginsburg/Stevens dissent) limiting access to the courts to deal with a certain class of government wrongdoing dealing with property rights. I guess a matter of strong access to the courts principles (Thomas concurred, upset about -- lol -- "common law" court-created remedies) is worse than threats to property in some cases. Since I believe in strong access to the courts, to just argue your case, I lean toward the two dissenters. Again, as to the more technical point, the majority might have had a case. But, as I noted before, there usually is enough play in the joints in such cases, if the justices care to use them. Property rights sorts might be upset here.

The "Bong Hits 4 Jesus" case somewhat surprisingly went the wrong way too. Many thought CJ Roberts had a minority point of view with his sympathetics toward the school (ironically, the student now is in his twenties and is teaching English to Chinese students) , but it turns out he wrote the majority. It was 6-3 with Justice Breyer having a reasonable approach of trying to avoid the constitutional issue, just saying the teacher should not be liable. But, that is the hook often enough to decide constitutional principles, and five justices did join the constitutional part of the ruling ... though two (Alito/Kennedy) tried to interpret the majority opinion somewhat narrowly (while joining in full). Thomas by himself took the Tinker/Black technique of being a selective believer in free speech ... students need not apply.

This was a lame ass case ... but who is a lamer ass? A sophomoric student or a majority of the Supreme Court who uses him to allow schools to censor a class of speech, viewpoint discrimination style? The school can target "speech [that] is reasonably viewed as promoting illegal drug use," even speech that is really basically asinine only. We have a majority of the Supreme Court parsing a lame ass sign to underline how it is somehow at threat to the educational mission of public schools. Alito/Kennedy apparently thinks it has to do with violence in some fashion too -- since they have to "intervene before speech leads to violence." The idea any comment on drugs is somehow related to that underlines the problem with this case.

The concurrence, especially speech friendly (but drug hating) Justice Kennedy in the mix, has to find a way to underline they are good First Amendment warriors still. But, the nature of the speech here makes the concurrence naive. How exactly does the majority's test NOT provide "support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as 'the wisdom of the war on drugs or of legalizing marijuana for medicinal use.'" The medicinal marijuana cases underlines the courts think illegal use is illegal use. And, I assume saying drug use is a good thing comments on the "wisdom of the war on drugs." Couldn't a time place and manner rule be applied given the argument here was that this was a school event? Dubious, maybe, but better than viewpoint discrimination defended is such a lame ass matter.

Alito btw wrote the ruling saying that taxpayer standing in Establishment Clause cases (such standing is disfavored, but a Warren precedent noted that the EC is specifically concerned with government spending in this area, so is a special case) cannot apply to executive decisions alone. There is an extreme irony in this case -- it apparently help the President's case that he acted on his own authority using general appropriations ... "created entirely within the executive branch … by Presidential executive order." No law compelled this act ... underlining the ability of the executive to act on his or her own authority in lawless ways. Justice Kennedy's concurrence ended on an amusing -- though one doubts intentionally note:

It must be remembered that, even where parties have no standing to sue, members of the Legislative and Executive Branches are not excused from making constitutional determinations in the regular course of their duties. Government officials must make a conscious decision to obey the Constitution whether or not their acts can be challenged in a court of law and then must conform their actions to these principled determinations.

Yeah right. Don't need the courts to enforce rights. Ditto the majority's clueless to reality argument that if the executive missteps too much, hey, Congress can just pass a law to restrict them. As if this is so easy given the legislative process, even without the threat of a veto. Likewise, the argument -- noted in passing -- that other means are available to bring a violation to court is somewhat dubious in various cases. Surely, given the stricter standing rules that are growing these days. I reckon if the executive acts in a way that selectively assists religion, some other group can raise a claim. But, a good party might not arise, and here we have a specific case where government spending raises special constitutional principles. [Precedent says no, but I think making public appropriations, per Art. I, sec. 9, is another case.]

It makes little sense to allow standing when legislative acts are clearly involved, but not when a majority of Congress did not even compel/justify a result. Current events underline executive action can be the more troubling and insidious exercise of power. But, again, the Supremes don't want citizens to have a chance for a hearing.

Common Law Constitution (cont.)

And Also: Hallmark recently rebroadcast the latest of the Love Comes Softly historical family western with a religious undertone series, Love's Unending Legacy. A somewhat weaker effort, but its family values and strong characters (focus on maternal figures) still came off pretty well. The first one was clearly the best, but I did care about the characters here, which is central to this sort of thing. Its simple acceptance of moral obligation, including foster parenthood, is to be honored, even if you disagree with some of its religious faith. Based on a series of books.

Amazon has a nice feature in which one can find old and new copies of books (and other things -- CDs and DVDs too) that are much cheaper than the cover price. This includes old books that are out of print or hard to find, which is how I obtained an interesting collection of William O. Douglas speeches from c. 1960 that include a fascinating discussion of the right to privacy. My mom also bought a couple of old mysteries recently for .01 a piece, $8 total with shipping.

Thus, I obtained Liberty for All [broad view of liberty rights] and Retained By The People [Ninth Amendment] for a fraction of the cover price. To be read later. Still, I glanced at both, and the first book is relevant to recent discussions. The author notes a deep belief that constitutional interpretation should rely on text and its original meaning. The text is broad enough that changing times requires some adaption, but she still focuses on those two things. I dare say, even without reading much (though the attachment to Randy Barnett hints at where she is coming from) that there will be a problem.

This can be seen by the fact she thinks Barron v. Baltimore was problematic. It was written by a ratifier of the Constitution. If he doesn't know what the "original understanding" was, who does? I'm game to those who argue that constitutional principles promote a strongly libertarian system of government. I just don't think trying to convince us the Framers supported a view that would allow courts to strike down fornication laws is a useful device after a certain point. Fine, point out how original principles can be so interpreted.*

But, they were principles of only some, and few took them as far as the author's class of legal theorists argue. They damn "living constitutionalism" as a threat to constitutional liberty, but in effect do it themselves. The LC crowd, after all, appeal to Framers too. Just ask Justice Douglas. BTW, looking into the matter brought up this discussion of "due process" that is relevant to the "common law" Constitution (see also my response to the post linked yesterday):

To what principles, then, are we to resort to ascertain whether this process, enacted by congress, is due process? To this the answer must be twofold. We must examine the constitution itself, to see whether this process be in conflict with any of its provisions. If not found to be so, we must look to those settled usages and modes of proceeding existing in the common and statute law of England, before the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country.

In fact, an essay on Dred Scott in the much recommended book Constitutional Law Stories noted such "settled usages" amounted to substantive due process protections, readily accepted by the author of that opinion of the Court when he dissent in that infamous case a couple years later. Justice Curtis is praised by some as a savior of judicial restraint, but judicial restraint is only proper when it follows the duties of the office. This duty includes helping to secure procedural and substantive liberties at times only obliquely referenced in the Constitution itself. An ongoing process, built from past foundations, but upward and onward past them.

To cite Justice Souter once more, see also here.

---

* See, e.g., The Godless Constitution for discussion of personal liberty promoted by 18th Century thinkers, or a 1819 ruling (cited with support in 1998) that noted due process secured "the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private right and distributive justice." Note the focus on "private rights" and the breadth of power given to the courts by the word "arbitrary." As one commentary noted:

The term "arbitrary" is vague enough in its connotations to give the widest latitude for a judicial censorship. It may mean acts not governed by any fixed rules, or which are capricious, unfair, absolute, despotic, tyrannical, or irresponsible. It is obvious that personal and partisan inclinations will have great weight in determining whether legislative enactments come within one of these indefinite categories.

As Jack Balkin noted at one point, this broad power might scare some, but it has met the test of time. It is not "undemocratic" because a clear majority has accepted and in fact at times demanded judicial power be enforced thusly, though there might be a debate over how it is to be done. A matter that developed over time, even if in some broad (and at some point, so broad it is a bit meaningless) sense it existed at the time of the framing.

Baseball

Tom Glavine finally won his 296th, the Mets finally won two straight and did it with the back-up catcher ... Lo Duca tossed for going postal after a call went against him. The 1-0 win was helped by El Duque (along with TG, blown away by the Yanks last weekend ... the Yanks then were swept by the Rockies) throwing a 50 something mile a hour "Bugs Bunny curve" (so slow you can swing three times).

Not a big fan of these nail-biters, surely given the Mets latest losing ways, but they are better when you win. Just ask the Yanks ... who lost in the 13th over in SF (Barry hit a home run last time, but his team lost that game). Clemens was ready to pitch ... would he get his million per game for a relief outing? Did he get paid for throwing warm-up pitches? I wouldn't be shocked.

Images

And Also: This dismissal of originalism might go too far but I think she has something there. I take a "common law" approach that takes what works and what appears sound and continually build off it resulting in an ever changing process to determine what is good today. This technique needs to be done honestly, or we can claim to be loyal to the past when in actuality we are summer patriots in that regard. I reference the Thomas Paine metaphor, not the new season upon us.

If you click the picture, you should be able to go to the GG column over at Salon discussing some of the "kill kill kill" sentiments of neoconservatives. The picture was added (credit given there) to underline who this will affect (as in maim/kill/shift to hatred of the U.S.). This sort of thing should repeatedly be done, especially when discussing potential armed conflict or when demonizing a people. Surely, such faces can be used to argue for violence (visions of white faces to defend violence against Southern blacks), but putting a face to the people we as a nation helped kill in hundreds of thousands (in respect to Iraq, but also many other places) is useful.

This can be seen while touching on books and such, since I added a few new ones to the side panel. I was listening to one of Isabel Allende's autobiographies, which includes a discussion of the military take-over of Chile ... another "9/11" date of some significance. The take-over involved the murder of the democratically chosen leader, a relative of Allende. We supported this coup, since it fit our alleged national interest. Greenwald notes that we continue to hate democracy ... supporting the losers of the Palestinian election since we just didn't care for the winners. See also, Venezuela. Most nations are stuck with the results of 2000/2004 over here.

Isabel, who wrote such works as House of the Spirits, noted that many at the time felt military dictatorships were for other unfortunates. Can't happen here, they said. How we forget our role there. Christopher Hitchens wrote a brief against Kissinger in part dealing with those events. He later became a war hawk against Iraq, consistency not quite his strong suit on that matter. Anyway, maybe a few pictures of those rotting in Gitmo or tortured (or whatever euphemism is used) with the (Supreme Court forced) procedures given leaving a lot to be desired ... so says people with uniforms, a bit harder to sneer at than "the left" etc.

I referenced the first book on the list, which I just finished this morning -- a good read on that much maligned bird, the pigeon. My only criticism would be that it didn't touch upon mating, a bit peculiar since it dealt with various issues, though focusing on racing and shows. [The author was drawn into the matter via a discussion with someone who knew a person who raced them. I too knew someone who did as well -- the field therefore was familiar.] Pictures are also valuable when it comes to animals, including when you are in the animal welfare business. As with war, though I don't allege equity between the two subjects here, some rather not see some of them.

I do find a connection to both groups, just of somewhat different varieties. Thus, the "let's allow them to kill them, not us" is horrific to me, when "them" are simply people just like you and me, just of a different nationality. As GG says, on some level, it is the thought process of a sociopath. Likewise, on some level many consider animals not as mere things, but "persons" of some sort. The fact they are not very consistent about it might be unsurprising, but it doesn't seem to me very ideal. And, yes, I sometimes have images in my mind of the beings affected in both cases. Perils of reading and forming a vision of what I'm reading, perhaps.

On that general subject, I think one need not be a vegetarian to respect the ethics of treatment of animals, as well as diet in particular. Peter Singer, famed for Animal Liberation, co-wrote a book on the latter subject and underlines it is not necessarily and all or nothing matter -- useful given the realities of the day.* For instance, there are many ways to improve the treatment of animals raised for food. Also, the animal is not the only thing at issue here. Factory farming, for instance, has many negative effects for humans as well. One can point out the environmental ones alone, and the book underlines the hidden costs of let's say cheap factory produced chicken.

As with oil, such costs deserve to be widely known, even if we ultimately decide they are acceptable (many do not). Relatedly, a farm bill is currently in the works, and the NYT today noted there are new rules for vitamins. Lots of stuff to fill the airwaves really, they need not be limited to the occasional PBS special.

---

* The article notes the book addresses Michael Pollan's thoughts on vegetarianism as well as underlines that Peter Singer is not just some idealist without a sense of practical reality. His sentiment that those mostly good should be honored, not denounced as hypocrites for being human, has applications to many situations.

Personal Judging and Fractured Courts

And Also: Interesting article on the use of language during trials, sexual assault ones in particular over at Slate. The fray discussion was particularly fruitful. I think the concern raised by the judge is sound, but question the breadth applied. Thus, I limited myself to responding to posts, wary about stating things directly. BTW, I hate this no easy way to determine if my posts received a response and the "thread" function leaves a bit to be desired. You cannot directly read posts in that format.

Findlaw had a good essay yesterday on the human side of judging, including the fact that "we read such texts [like the Constitution] in part through the prism of personal experience and belief -- and we invest those texts with meaning accordingly."

I want to highlight the words "in part" - judges don't just use personal predilections and sentiments, but it does affect their judgments. This also highlights the importance of the nominating/confirmation process, one that simply cannot be left to some allegedly "ideal" "neutral" thing such as "ability" or whatnot. It also shows judges aren't machines. We don't want them be either. People are all over the place in the courts, for good or ill. Ignoring the point is a fool's errand at some point.

I think this also can serve as a bridge to something else. A recent post on the Slate fray discussed the issue of the concurring opinion gone wild -- confusingly split courts in which justices only sign on to a portion of the majority opinion if that. Three opinions were handed down yesterday. How do they stand up?

[see here for discussions of these cases, including the fact the guidelines case perhaps is a bit less helpful than I suggest -- some argue in fact Stevens' opinion does cloud the issue, splitting the majority in the process.]

Interestingly. TELLABS, INC. concerns a statutory matter of some significance, if somewhat technical in nature. Six justices joined the majority opinion, Scalia and Alito had separate concurrences, and Stevens dissented. Both concurrences agreed with the majority in part. Scalia's concurrence is pretty personal ("I fail to see how") which appears to be why Alito concurred separately -- he repeatedly noted he agreed with Scalia's approach, so its unclear why his concurrence was necessary. It was low key though, underlining the "personal" nature of judging in a different fashion.

RITA v. UNITED STATES is actually a pretty successful example of the ability (or putative ability, your call) of CJ Roberts to advance unanimity. It deals with the tricky and divisive question of sentencing guidelines, quite divisive nature that split the Court various ways. The opinion for the Court was written by Breyer, who likes them, and dislikes recent precedent that limited their use. But, he's game for compromise, and found a "split the baby" route.

Some find it problematic and various lawyers/judges don't care for it. Stevens is right to say that at some point you have to stop debating and set forth some rules to follow. So, it is useful that the Court found a way to write an opinion to which six justices could join. Stevens/Ginsburg had a separate opinion, but it was of the "why I went along" variety. Scalia/Thomas went their own way, only agreeing to part of the majority. Souter thought the compromise constitutionally dubious, so dissented.

BRENTWOOD ACADEMY involving recruiting rules underlines the post's concerns:

Stevens, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–B, III, and IV, in which Roberts, C. J., and Scalia, Kennedy, Souter, Ginsburg, Breyer, and Alito, JJ., joined, and an opinion with respect to Part II–A, in which Souter, Ginsburg, and Breyer, JJ., joined. Kennedy, J., filed an opinion concurring in part and concurring in the judgment, in which Roberts, C. J., and Scalia, and Alito, JJ., joined. Thomas, J., filed an opinion concurring in the judgment.

A look at the concurrences suggests that all nine basically agreed this is a fairly easy case, but did not agree with one means of argument. Since five justices didn't agree, noting the point in a shortish opinion not as substantive as a majority opinion, this is esp. curious/dubious. One might ask why Stevens was actually given the assignment given this breakdown. It might be a matter of splitting things evenly or some other reason.

But, it underlines the issue of unnecessary fractured courts. Anyway, end of the term about here. Expect some more multi-faceted opinions of the court and a slew of concurrences!

Quickies

Reading about pigeons -- French for "little dove." Yes, those biblical citations of doves can be about pigeons too. Are doves "rats with wings" too? The Internet Movie Database (blogroll) has a neat deal where you can see if an actor is on some upcoming television program. One from It's In The Water was on today, another on a weekend home improvement show.

Saw a couple tattoos today ... one small one on the leg of a woman working in an office building. Another right above a somewhat low cut (cleavage apparent) top, that screams "stare at my boobs." When you are on the subway or whatever, standing above such people perhaps, it requires a bit of finesse sometimes. NY btw allows topless women ... it's a civil rights issue ... the appeals court said so.

We Need Nuance Too

And Also: I want to emphasize that this business about making a special effort to rub his nose in the stem cell issue is nice and all, but why only that? Why not repeated vetoes to fund the occupation with strings? Oh, and why couldn't "I was against this in '02" guy not wait to after the vote was passed to voice his opposition? Is early and often opposition like this only for symbolic measures like stem cells? I want a line drawn in the damn sand. Did a veto stop them here? Apparently, there is more to the fight than that.

Those who demand that a cartoon image of George Bush be embraced to the exclusion of all else -- that all one can say about him is that he embraced and brilliantly executed an Evil Corporatist Plot to enrich himself because he is Evil and that his evangelical furor is just an act -- are themselves exhibiting the precise mentality that drives the Bush movement. The world is driven by pure Good and pure Evil. Understanding the world requires nothing more than figuring out who is on what side. That explains everything. There are no complexities, nuances or shades to any of it. And indeed, even the attempt to discuss the world or its events beyond these simplistic formulations is not just misguided but corrupt, as that endeavor conceals the simple, two-dimensional truths that explain everything.

-- Glenn Greenwald

I read a comment on Libby that was basically a "poor baby" defense -- he had lots of things on his mind, he didn't mean anything wrong, and hey, everyone forgets now and again. It was a simply ridiculously true believer comment, but I learnt my lesson. "Come on, you can do better than that" is not too useful of a response. But, yeah, sometimes you just think that. And, sometimes, it is simply true. Surely, this sort of fingers in ears "la la la" sort of thing.

One needs to be humble though, especially as one reads blogs and comments and listens to Air America. For instance, some simply "know things," and they are not all Naderites. One thing that drives me crazy, especially since three past or present (one a guest host) Air America hosts take it seriously is the idea that there was a big conspiracy on 9/11. Not one explained what exactly the role of the hijackers -- whose murderous antics we know from those on the plane -- happened to be. The implication btw is that the Bush Administration had a direct role in some way.

[Apparently, even now, negligence is too hard for some to believe.* I want to note here that this doesn't mean we know everything about the events that went on, in part since our "leaders" didn't think a damn it all full disclosure and full court press investigation was appropriate -- hey, don't blame us, no one knew blah blah -- but that is a different issue. Planes hit the buildings, okay? No missiles. No bombs. No big evil Bush conspiracy.]

More germane, perhaps, is the overall sentiments of some respecting the Bushies. One charming stereotype is that Bush is a moron -- it is like the key Bush joke on David Letterman and Conan O'Brien, about as prevalent as the "Paris is a slut" bit. Shallow thinking there -- underlined by a whole Slate feature ("Bushisms") where we are supposed to laugh like fifth graders at him mangling the English language. Since, you know, only bad people have problems with diction. Or, that is what we should focus on.

Bush has moronic tendencies, but he is more lazy than stupid much of the time. This is a central point to the post linked in the beginning -- the whys of the good/evil simple meme of the Bushies is not as important as the fact it is done and is bad for our republican society. Some simplistic knee-jerk argument on the why is liable to be a bit too cute. The "reality based community" should be careful about that. This includes such things as overdoing it on the "Christian Right nuts control the party" front as well. Though with the stem cell deal again being vetoed, maybe that is not that best example to mention today.

[The Dems decided THIS time to risk a third veto. Great place to draw a line in the sand, people. As to the reason for the veto, it is said to be a big moral argument about destroying ... rather paying for a certain sort of ... human life. The people at large think it immoral not to do this research. But, "moral" only means what Bushies think it means, apparently. We have gone down this road before.]

I also am getting a bit annoyed at Thom Hartmann, the early afternoon Air America guy who replaced Al Franken. He has his good points, but still can use a bit of nuance. He loves Thomas Jefferson and really dislikes Ronald Reagan. The sympathetic can note that both represented movements, but would still wish Hartmann showed more evidence that he knows this. He repeatedly suggests life was grand ... until 1980 ... when Reagan ruined everything. Yeah, that's how easy it was. This simplistic view ignores up and down trends, the long haul (e.g., Carter began in earnest our focus on the Middle East in the post-OPEC world as well as started the road to deregulation), and the fact Reagan was part of a movement.

[Hartmann also throws in simplistic comments like that there were no dynasties in colonial times that controlled a lot of wealth and so forth, which is simply untrue. Struggles between the well off and struggling masses was an important issue in the times. He even tossed a big whopper about the fact Ben Franklin -- who retired in his 40s or so -- was not a wealthy man. Or, that only tariff revenued paid the U.S. government's way in antebellum years. How about money from land sales, direct taxes, loans and excise taxes? Whiskey Rebellion, anyone? Sigh.]

I want to make it clear that I realize that sometimes you have to generalize or simplify, especially if you only have a few minutes, are summarizing to a general audience, or are writing a short post or message online. Still, too often, I see knee-jerk reactions from the left as well as the right, which is human nature, but something that must be guarded against all the same. We can agree about some basic sentiments, such as equality and reasoned government, without going too far in the simplicity and knee-jerk department.

I admit to not reading or listening to enough people I fully disagree with (my views are mixed enough that various groups sorta agree with me on various issues, which helps), but it helps to read everything with a guarded eye. It turns out that even these you generally agree with can be a be too fast and loose.

[I would say I shouldn't throw the first stone, but that story was just added late anyway ... lol.]

---

* Ironically, GG notes Noam Chomsky apparently is as annoyed at this sort of thing as me. In part:

When someone carries out a controlled scientific experiment in the best laboratories in the world - at the end, there are lots of things that are unexplained -- funny coincidences and this and that . . . . which are just going to leave a lot of things unexplained. That's just the way the world is. . . . That's just the way complicated events are.

There is also his compatriot, Howard Zinn, whose new American history book for young people was panned in Sunday's NYT Book Review as one track. I have read some Zinn, and I respect him, but he does have a one track mind -- a balanced history his work (I read the adult version) is not. Too many typical history books leave a bit to be desired, but replacing cheerleading with constant booing doesn't really seem like the only way to go.

NY Presidential Candidate Quickies

Rudolph Giuliani's membership on an elite Iraq study panel came to an abrupt end last spring after he failed to show up for a single official meeting of the group, causing the panel's top Republican to give him a stark choice: either attend the meetings or quit, several sources said.

Yes, why are we just hearing about this now? HC goes for a Sopranos parody for style cred and then chooses a Celine Dion song once used for an ad for her theme song? And, former "D" and "R" Mayor Bloomberg decides for political reasons to become an "I." Oh, more on Rudy. All first heard by moi on Rachel Maddow (Air America), who had B's '01 challenger for mayor, Mark Green (AA president, traveling on Amtrak as they chat) on for comment as the story broke!

Quickies

According to a BBC film entitled The Trial of Tony Blair (docudrama, takes place in 2010), Hillary Clinton won the election. Justice Ginsburg was on C-SPAN with her 2nd Circuit (my own) report. Putting aside her two big dissents this term(abortion rights/pay equality for women), it made me think that she (sorta like the justice she replaced, White) isn't a very memorable writer. Sorta why she was seen as a safe choice, though she has her moments (e.g., Bush v. Gore). BTW, Army Wives on Lifetime is pretty good, better than their usual fare.

Tattoos

And Also: Thanks dad ... I continue to try to honor your memory. One just tries their best, as I know you did. BTW, during the Cubs game yesterday (WGN ... I worry about Lou sometimes) I saw an amusing advertisement for some cake company or whatnot, in which the "father" was a priest -- as he somewhat self-consciously noted, technically, he too is a "father."

Teens can't fathom life after high school, yet somehow they think they have the ability to foresee that 30 years from now they'll still love that Chinese symbol on their shoulder that means "creativity." For many parents, tattooing ranks high among the most dreaded subjects - right up there with "I'm dropping out of school" or "I need breast implants."*

After reading this article on tattoos, geared toward teens as part of the paper's usual Saturday "family" related features, the subject was also raised in today's NYT. The first article had a quote from someone in the biz that can be called the "shirt" rule -- don't get a tattoo that cannot be covered by your shirt. If you do so, you might be sorry, especially when you try to get a job. Now, I myself think those tattoos on the lower back -- well, you know, on women -- are nice on the eyes. But, yeah, your usual white collar job probably frowns upon something like this, sexy or not:

There is also the usual tattoo in honor of a boy or girlfriend who is not shall we say totally permanent. Now, some people see it as just part of life's plan, so they might not mind having a permanent imprint reminder on their skin. Others, not so much, especially after those messy divorces. The NYT article suggests a solution -- a new sort of tattoo that is easier to remove. There are also temporary tattoos, some pretty high quality, including various sorts of ink jobs. And, some of them won't require you to not donate blood (generally speaking) for a year ... yes, they are particularly careful.

One of the article notes that about one out of four people these days get a tattoo. Sounds impressive -- not that I take such things totally seriously, since I think that modern day "necessity," the cell phone is something of a menace. Now, yes, I realize its uses, just like your average modern "necessity" (think online message board or blog) suddenly becomes a sin qua non though it was not used (and still is not in various primitive lands) five years ago. [Cf. Things we can do without but are stuck with ... such as reality programs.]

But, even without those annoying commercials (e.g., that silent slightly creepy guy), they are totally over used these days. Especially on public transportation. Anyway, the subject was tattoos. Of course, they have a long history, surely in some societies as body decoration with special cultural significance. This included some pretty elaborate and extensive works, which some still have today ... though use of one's back as if it was a 8x10 easel or something seems to be a bit excessive. Still, one the small scale, I'm a fan, and find the coverage in two local news sources a pretty good idea.

Body art is an important aspect of self-expression ... see here for a taste of what is at stake. Surely, we have regulations and limitations, just like hair can be regulated (but see dissent) for public employment. And, such self-expression is surely particularly important for teenagers. Taking this all in account, including doing so safely and intelligently, is ideal newspaper fare as well.

Oh, and there is a baseball player with so many tattoos that the league requires him to wear sleeves to avoid throwing off the batters ... at least in that fashion. Apparently, not only white collar jobs have their limits in that regard.

---

* The author Linda Francis Lee suggests the "in" term is "BJs" (all your quality Texas girls don't do bjs ... too messy). She also suggests the right way to use "beaucoup":

To be completely honest, not every member is married, and certainly not every member of the JLWC is fabulously wealthy. Mind you, no one is headed for the poorhouse --- well, maybe a few are who invested badly, pretended they had more than they did, or got tangled up with nasty habits that cost beaucoup amounts of m-o-n-e-y to support. And really, who wants that sort of member anyway, so the sooner they get to the poorhouse and can’t pay their dues, the better. Why prolong their misery, I say.

Souter is PO-ed

And Also: Maybe, some feminists are uncomfortable with HC because she has various problems? I'm not so cocksure about Libby getting a pardon as some people (sure, I wouldn't be shocked if he found an out, maybe on appeal), but lets be careful with talk of "principled" (cf. "consistent") support. And, the fact we have to be sooo worried that Reid might have called Gen. Pace "incompetent" on a call with supporters underlines the "give them the frame" problem that drives some of us nuts.

[This is a slightly edited re-post of a Slate Jurisprudence fray post. After writing the original version, I heard Rachel Maddow -- who is making a nice little side line being a guest liberal commentator on the t.v. -- mention the case on her own show last night. Cheers, Rachel.]

And, no, it's not because of Sen. Specter's attempt to get cameras in the courtroom ... well, not this time.

The District Court told petitioner Keith Bowles that his notice of appeal was due on February 27, 2004. He filed a notice of appeal on February 26, only to be told that he was too late because his deadline had actually been February 24. It is intolerable for the judicial system to treat people this way, and there is not even a technical justification for condoning this bait and switch. I [with the usual three others] respectfully dissent.

The appellate lawyers can decide if the majority was right here, though if the matter is close enough that four justices dissented I'm inclined to think equity warrants a fifth to join in on that alone, and can explain why the lawyer waited to the last minute (or see FN 9). [Souter's reasoning sounds good, but I don't claim expertise on the nuances of the issue. Still, the law simply is not so clear-cut, and the majority's position is far from compelled -- it was a judgment call.] One might think trusting the judge was his first mistake. Souter uses sarcasm:

As a member of the Federal Judiciary, I cannot help but think that reliance on our orders is reasonable. See O. Holmes, Natural Law, in Collected Legal Papers 311 (1920). I would also rest better knowing that my innocent errors will not jeopardize anyone's rights unless absolutely necessary.

The majority is of the two wrongs make a right school (putting aside that the issue is somewhat different and who knows exact particulars from a brief citation):

Just a few months ago, the Clerk, pursuant to this Court's Rule 13.2, refused to accept a petition for certiorari submitted by Ryan Heath Dickson because it had been filed one day late. In the letter sent to Dickson's counsel, the Clerk explained that "[w]hen the time to file a petition for a writ of certiorari in a civil case . . . has expired, the Court no longer has the power to review the petition." Letter from William K. Suter, Clerk of Court, to Ronald T. Spriggs (Dec. 28, 2006). Dickson was executed on April 26, 2007, without any Member of this Court having even seen his petition for certiorari. The rejected certiorari petition was Dickson's first in this Court, and one can only speculate as to whether denial of that petition would have been a foregone conclusion.

[Query: If they wanted to you know at least look at it to determine if the clerk was right or something, could they do it? If a law clerk says something comparable on a cert memo, is it conclusive? Sounds a bit weird.]

The Souter Four tries the other tack:

The status of §2101(c) is not before the Court in this case, so I express no opinion on whether there are sufficient reasons to treat it as jurisdictional. The Court's observation that jurisdictional treatment has had severe consequences in that context, ante, at 7, n. 4, does nothing to support an argument that jurisdictional treatment is sound, but instead merely shows that the certiorari rule, too, should be reconsidered in light of our recent clarifications of what sorts of rules should be treated as jurisdictional.

The recent EPA ruling underlined that rules of standing, namely who is able to get a hearing at the Supreme Court respecting what subjects, is not a clear-cut (strong language in the dissent notwithstanding) matter. It is a matter of judicial philosophy and interpretation, the means used often favoring certain groups.

What groups get the benefits of not just "law," but "justice," the latter in theory secured in this country, including in our courts.* "Blessings of liberty" and all that. [Preamble to Constitution] This includes not having an overly stingy view of obtaining even a judicial hearing. But, the other side has their "technicalities" too, even if the heaven's may fall, and all that. Or, a means to keep cases out of the federal courts ... Alito and Roberts favor that, right?

Anyway, those justices are just big nuts. Even when things are simply "intolerable," they remain all respectable and all. Charming really. Wouldn't mind watching a bit of that ...

---

* There have been various discussions, including a year or so ago in Slate, about the idea of "law plus" in this country, a view that includes considering the courts as a place to get justice, justice that does more than follow some strict interpretation of the law. Some play in the joints. With apologies to Holmes, in fact, I really don't see things so easily separated. The Preamble to the "supreme law of the land" speaks of establishing justice. So, yes, "justice" is part of our "law."

This, especially the closing comments, underlines the point. A comment also raises a red flag: it argues in effect that state here didn't do anything that made them liable. But, the case was about the right to be heard, the hearing the place where that factual issue would be determined. All the Supremes had to do was accept the possibility the state might be liable in an area that raised federal due process concerns. The dissent on that front was right. Forgetting this helps the usual talking past each other, sound and fury signifying mostly aggravation.

PS

A sign of the charm of the ruling is its underlining that it often depends on what side you are on. Some use words like "enemy combatant" to imply something inherently evil, but the opinion noted during WWII to Germany, our brave soldiers (it threw in that modifier to guard against cries of treason, I guess) were the enemy combatants. Our spies (at various times) "unlawful" per the laws of war. We still expected fair treatment of them ... adjectives don't change that.

A bit of justice from the Fourth Circuit

And Also: I have spoken before about the absence of abortion, the numbers that occur every year notwithstanding, in t.v. and film. NYT discusses the point here. As to it being "controversial," loads of things are controversial. It is quite telling it is still such a taboo subject, even the Sex in the City women seeing it as some tragic choice only spoken in whispers. Teen pregnancy, sure (see Reba and Gilmore Girls). Abortion? Can't do it. At least, in the U.S. (cf. Degrassi, a Canadian show).

I spoke about the al-Marri case here and here. For the moment, sanity has reigned ... though as the opinion emphasizes over four years after he was tossed in solitary military confinement ... in the appellate court. Yes, even in the administration's favored Fourth Circuit. The lede (h/t Marty Lederman):

For over two centuries of growth and struggle, peace and war, the Constitution has secured our freedom through the guarantee that, in the United States, no one will be deprived of liberty without due process of law. Yet more than four years ago military authorities seized an alien lawfully residing here. He has been held by the military ever since -- without criminal charge or process. He has been so held despite the fact that he was initially taken from his home in Peoria, Illinois by civilian authorities, and indicted for purported domestic crimes. He has been so held although the Government has never alleged that he is a member of any nation’s military, has fought alongside any nation’s armed forces, or has borne arms against the United States anywhere in the world. And he has been so held, without acknowledgment of the protection afforded by the Constitution, solely because the Executive believes that his military detention is proper.

As Marty notes in his follow-up post, the reason he is in military custody is suspicious, since al-Marri began in criminal custody, which would have kept an alleged "enemy" confined. This is after all the alleged reason for prisoners of war, though the term is suspect to the administration since it suggests certain rights it dare not admit such people have. This, Marty suspects, is the rub -- military confinement here would allow interrogation. And, we have hints via Padilla what that means in this context.

The heck with Miranda ... solitary, with years away from his family or even a lawyer, might just "help" things along. Wink. There are twenty million, by one estimate (in a book by David Cole), legal aliens residing in this country ... like al-Marri, apparently open season. That is, unless we respect the Constitution. Those on our soil, and even if we accept the legal insanity of those who don't want to apply the principle to Gitmo, it surely applies to the continental U.S. (e.g., Peoria, Illinois), are protected by the Due Process Clause. They are "persons" with basic rights to be treated fairly. The opinion notes that such treatment is not a "get out of jail free" card:

We hold that the new statute does not apply to al-Marri, and so we retain jurisdiction to consider his petition. Furthermore, we conclude that we must grant al-Marri habeas relief. Even assuming the truth of the Government’s allegations, the President lacks power to order the military to seize and indefinitely detain al-Marri. If the Government accurately describes al-Marri’s conduct, he has committed grave crimes. But we have found no authority for holding that the evidence offered by the Government affords a basis for treating al-Marri as an enemy combatant, or as anything other than a civilian.

This does not mean that al-Marri must be set free. Like others accused of terrorist activity in this country, from the Oklahoma City bombers to the surviving conspirator of the September 11th attacks, al-Marri can be returned to civilian prosecutors, tried on criminal charges, and, if convicted, punished severely. But the Government cannot subject al-Marri to indefinite military detention. For in the United States, the military cannot seize and imprison civilians -- let alone imprison them indefinitely.

The ruling was 2-1, but even the dissent didn't buy the argument that the court did not have jurisdiction. As the majority notes, al-Marri didn't even have the questionable combatant status tribunal that people in Gitmo are (at various times) supplied. And, besides not being a "solidier" (the opening quote hints at the reasoning, though I did not read that section yet), again, due process clearly applies in this case. This is not someone picked up in the battlefield over in Afghanistan. It is someone who is giving aid and comfort to the enemy domestically ... an alleged criminal.

Expect an en banc request and a request for cert. ... and more time lingering in a condition that even as an "enemy combatant" or "unlawful combatant" or whatever they want to call this "person" that is unjust. And, if he is so clearly dangerous and guilty, it simply is not necessary ... a fair process would prove things out. Of course, the executive here wants open-ended power, and probably not just for power's sake (though, see Cheney, that's part of it).

Meanwhile, various Republicans are strongly of the opinion that Gonzo must go. But, hey, can't allow a "no confidence" vote or anything. Underlining how bad these people are is not really a pointless enterprise, actually. The fact that they can't even ALLOW a vote given who is involved here is simply pathetic. Roll call at the link ... a few noteable no shows.

Gracie

We pass a film poster noting how the movie is "inspired" by a true story. The opening credits provides a dedication to William Shue ... the brother of two of the supporting cast (one playing the mother, another a supportive teacher/coach*) and three who worked behind the scenes as producers and influenced the story. The ending credits provides a quote from Elizabeth Shue when she was in sixth grade along with pictures and footage of the Shue family, known locally for their soccer skills. But, any connection to real life is a coincidence.

Well, so said the standard disclaimer, that simply doesn't work in historical docudramas, and it made me want to scream "it's based on her life, you idiots!" Actually, the backstory to Gracie is pretty interesting and adds to the viewing experience, though such things really only can affect its dramatic value (and the enjoyment of watching the film) up to a point. In effect, the movie was based on real events ... just not quite as you might think. William Shue did die, but he was in his 20s when it happened, not a teenager. Likewise, Wikipedia [the movie link is useful too] informs us that the Shue paterfamilias, however, had a more elite role in local life, running for office at one point.

Elizabeth Shue did grow up in a soccer crazed family in 1970s New Jersey (Mets fan, if the movie is to be believed), playing the game herself ... her mom wary about it all. But, ironically given the dubious mom in the movie, it was Shue herself who decided to stop playing as a teenager. Like the author of For Better or Worse using her character to do something she wished at times being able to do herself (have a child later in life), the character's courage and success here was a sort of "what might have been." In fact, a somewhat trite "caged bird" metaphor according to the movie's official site is based on a bird the brother cared for.

Thus, real facts are through film alchemy translated in interesting directions. What of the film itself? A good piece of work, even with some sports cliches, and so forth. It is useful to note, especially since a tragedy pushed the lead teenage character through depression, danger, and then determination, that the traditional Greek tragedy had standard tropes as well. Life was deemed "destined" to be, and the only control we had was how we (or the characters) acted out standard themes. Film really rarely is too surprising. It is how the usual themes are carried out that counts.

And, this is a superior piece of work in that department, with the backstory adding some perspective that helps us respect even the more trite moments. Carly Schroeder, who I know from the t.v. show Lizzie McGuire (she played the mischievous friend of Lizzie's younger brother), is simply superb. I referenced recently another young adult/woman sports movie, Ice Princess, which also has a superior lead. This one really runs with her part, including in the actually a bit surprising middle scenes, where we see how she suffers through the death of her beloved older brother. We need more movies that provide realistic dramatic portrayals of teenagers, especially young women. Carly shines here.

The movie also provides a good view of time and place, including nice use of Bruce Springsteen songs. The movie looks good. Likewise, the movie also does a good job handling family dynamics, especially the father/son and father/daughter relationships. Again, such family dynamics can make for good drama, and the film that honors them instead of providing trite expressions deserve our respect. Dermot Mulroney as the working class dad with trouble relating to his daughter, who he still definitely loves, is very good here. Though at times her character seems simplistically drawn, Elizabeth Shue also has her moments as the mom.

I personally can still get riled up by standard movie cliches, but when they are joined with so many things that ring true, they go down ever more easier. A superior "sports" movie that had more than sports going for it. Reviews that suggest it is just standard fare sell it short, even if it has that side as well.

---

* In fact, they come off rather blandly on the screen, the strongest characters being the son who died, the father, and the lead ... with a few other supporting characters actually a bit more interesting. The mom's negativity (Elizabeth Shue makes her a bit of a downer character), as suggested by the text, is rather ironic when we learn the backstory.

We Didn't Start The Fire

And Also: I recently read a short book on nonviolence and the history of violence in the world. It was not really written well, but its message holds true -- non-violence (more active than pacifism; some say "ahimsa") is deemed unrealistic, but violence is insane. Hanging on to the mixed justice of WWII just doesn't carry the weight. Absolutism might be hard, but the general trend is less so, I think. Prince of peace, anyone?

[W]e have been moving toward a dangerous polarization of blocs, in which whites do not hear blacks, doves do not talk to hawks, and neither facts nor ideas are communicated. Perhaps we are using our mass media to communication conclusions and epithets rather than information and ideas. Perhaps the defects lie in the poor quality of our journalism and of our advocacy. But I suggest that a more basic inadequacy is involved other than skill deficiencies of newsmen, educators, politicians and lawyers.

-- Introduction to The Price of Liberty, edited by Alan Reitman

The "basic inadequacy" suggested in the introduction to this collection of essays lies in failure to truly understand and carry out the definition and demands of self-government, thus it being impossible to carry out our roles (both as individuals and our institutions) as citizens in a productive way. I summarize, but the principle and warning is up to date. Concern about the MSM, the failure to be able to talk in a productive way based on reasoned thought and so forth is often discussed on blogs and so forth, including in Al Gore's new book.

The quote however is not from one of those works. It comes from a collection of essays published in 1968. As Billy Joel sung, "we didn't start the fire." We need not ignore the past and the ongoing nature of current problems to keep a perspective about them, including how they are particularly troubling in certain ways. Perspective takes things like that into consideration without "nothing new here, the past was just as bad" nihilism. Nor, should we ignore the past, taking current problems in a vacuum. Both are bad. There is a reason we still read works from times that make 1968 appear like yesterday. Certain principles and truths do not disappear, they just show up in different and sometimes surprising ways.

This is both comforting and aggravating, sometimes in equal measure. BTW, I cited the book in the past ... good little find in a used bookstore.

A bit more on recent subjects ...

And Also: I added an addendum to Wednesday's piece on the law in Wyoming respecting Senate vacancies to address an essay promoting the opposite view. I discuss what we should conserve here, noting that some "conservative" ideas are pretty "liberal" in a fashion.

I discuss It Can't Happen Here a bit more here. As noted, I enjoyed the book overall, the story speeding along some after the halfway point (by coincidence or not, about after it stopped opening up chapters with brief quotes from the President's campaign book), and would recommend people to take a look. My criticism would be that it was not really a full look at what something like that would look like.

It would probably take longer and be a bit less complete (yes, dramatic license and all that), and it would be interesting to read an account more like that. In effect, one might say the book is a warning of how things would be if it went all the way, thus even 10% is a problem. Or, my citation to "little acts of fascism" (some cry we have a fascist state now ... we don't, but they act like fascists sometimes ... and the "wmou" reply sounds so much like "Karl," who denounced FDR as much as the dictator who replaced him, the word "perspective" not in his vocabulary). There is a point there, but again, both dramatically and as a lesson, a bit of nuance is useful.

And, there are many authors -- Latin American sorts like Isabel Allende come to mind -- who basically go that route fairly well. Still, as the introduction notes, the book was written quickly, and thus put together in a somewhat slipshod fashion ... it was so noted at the time. (The intro usefully notes as well that the author's second wife had gone to Germany, and saw fascism firsthand.) As to introductions and such, there are many editions of Lady Chatterley's Lover (as one might recall, I listened the book recently), each with different introductory/appendicary (a word?) materials. For instance, one has a district court opinion [by Judge Frederick van Pelt Bryan] declaring it not obscene per a federal mail statute.

And, another edition has Lawrence's own introduction to one printing, which dwells on his views on sexuality and such. I need to read the whole thing, but the district noted [citing an opinion of Frankfurter] Lawrence's judging porn and erotica differently. It has long amused me that somehow protection of material should rely on the good intent of the publisher (a "leer" vs. an upright promotion of serious thought) or on the good taste of the material (Playboy vs. a less glossy imitation).

It is on some level silly to spend lots of time defending the worth of the likes of late night soft core porn, but seriously, such material promotes ideas as worthy of protection as many similarly trite/cheaply made/silly non-sexual materials. If there was some "serious and good intentioned" test for free expression, I dare say many would fail. Anyway, I know a woman who wrote a college term paper analyzing skin magazines ... her husband not really gung ho to go around with her to collect the "literature" involved.

Sadly, I never thought of asking her to let me view the final result.

Paris

And Also: Listened to the Hyde story -- actually a pretty short book and most of the action in effect takes place off screen, a first person account only coming at the end via a letter/confession. Didn't really like it. Sinclair Lewis' 1930s take on a fascist take-over of the U.S. (the inspiration of the title of Joe Conanson's latest) -- It Can't Happen Here -- had the fascism come pretty quick, but the story got to be pretty good (and rather graphic). First Lewis book I read, actually. Good to see some "classics" are worthwhile.

Some self-righteously note that the public (helped in no small part by the MSM) are overly concerned with celebrities and other gossipy stuff instead of the real important stuff. One gets the idea that this was somehow an invention of the press in the 24/7 news cycle, not a reflection of a time old practice of enjoying good gossip, and not worrying (or doing so THAT much) about deep stuff in the process. So, I take that sort of thing with a grain of salt, even while not really dwelling on such things (I also don't watch American Idol, Grey's Anatomy, or even Law & Order!)

I don't somehow spend my time that much more productively, probably in many ways less so, but just saying. Nor, do I find Paris Hilton too interesting ... I'm sympathetic (though don't dwell on the fact as much as her) to someone who is upset she is such a celebrity given that she doesn't really have much talent for much of anything and isn't even (she says cattily, but rightly enough) that attractive. But, she has money and plays the fame game. Such is a living. And, manages to do so without as much reckless abandon than Lohan manages to do these days.

Still, she is not free from such things. One tries not to be too happy at her pain (insert German word here), but this doesn't mean that we should just take her as some sort of martyr. Poor baby couldn't take prison, so had to be sent home to house arrest, even though her sentencing documents took that option off the table. And, why was she there for in the first place? A summary notes:

Hilton's twisted jailhouse saga began Sept. 7, when she failed a sobriety test after police saw her weaving down a street in her Mercedes-Benz on what she said was a late-night hamburger run.

She pleaded no contest to reckless driving and was sentenced to 36 months' probation, alcohol education and $1,500 in fines. In the months that followed she was stopped twice while driving on a suspended license. The second stop landed her in Sauer's courtroom.

IOW, she was caught driving drunk, given a warning of sorts (the fines as amusing as those given to baseball players for misbehaving during games), was caught breaking it, was caught a second time, and that was enough for the judge. I'm not sympathetic to drunk drivers who break probation twice ... and don't have the excuse that hey they need to drive somewhere sometime, what's a guy to do? not like I'm a Hilton or something with a paid driver at my beck and call ... and even if crying for Martha Stewart was half-way reasonable (if that), not so much here.

We are after all talking about twenty days or so, all things considered. So, it's a good thing that she was sent back to jail, people doing a lot less (or not even legally guilty at all) dealing with the trauma of going inside without the option of house arrest for mental anguish. She is after all a drunk driver, who do tend to get all teary-eyed as well at sentencing and the like.

It's In The Water

And Also: Things go along nicely, and then the team needs late inning heroics to win a series versus a bad team, loses another with help of injuries and are swept because they can't hit or the bullpen ruins three good outings. Such is why a Mets fan cannot totally be comfortable and/or aggravation is just there for the taking.

It is a well known joke among NYC actors that a stone's throw will hit someone who guest starred on Law & Order, as any look at a Playbill will tell you. A look at the c.v. of the leads in It's In The Water suggests something of a SW take on that ... they both guest starred on Walker, Texas Ranger. In fact, the IMDB listings for the two female leads are pretty thin. A bit sad, surely for Keri Jo Chapman, who was quite good. She surely has something here -- she's her own person, and has her own style. Chapman took her chance for a starring role, even if in a little known (overall) indie, and ran with it.

Charming indie at that. I first saw it a few months back, one loses track, everything seems to be "a few months back" when I speak about movies and such here, huh? Anyway, it was on some movie channel, and it was one of those nice surprises that those sorts of things (or the video store) sometimes gives you. A mid-1990s movie (the Bush bumper sticker being for his governor days, it taking place in a small Texan town ... like Waitress, we have a pie restaurant*) with the DVD commentary (two women leads plus the writer/director) done before the 2000 elections. Good enough that I picked up a copy to listen to that commentary and watch the film again.

Both supplied benefits. The three women provided a smooth commentary, nothing too deep, but pleasant enough with some interesting tidbits. The movie itself centers on two locals, one of each sex, who are in some fashion hiding their sexuality, in one case apparently from herself. It is a pretty busy film -- the title referring to a rumor that the local water made people gay, while other tidbits include a dying local decorator, a too precious narrow minded sort who thinks a bit too much about her new breasts, and even the perils of yellow journalism for profit.

The water conceit doesn't really work, but enough subplots and character do that it comes over fairly well. In fact, it supplies another to warrant at least one more viewing, the commentary helping one out by pointing to stuff that I missed the first time around. For instance, some of the expressions of the Grace Miller character (Keri Jo's love interest) are great, including what she does with her tongue when she is nervous. And, like they said, I too missed the final joke at the very end. Ditto some odds and ends, including some character tidbits.

In fact, there are quite a few precious expressions here -- perhaps, a bit of overacting, but still great fun -- Nancy Chartier (Sloan/breasts) having some of the best. Ironically, from a character who was no fan of an AIDS hospice opening up in town, NC has a major role in a recent indie that takes place at just such a place! I don't know how the movie is, only knowing of it from the IMDB listing ... NC also has spent time over the last few years providing acting tutorials. She did do a great job here ... not that easy to play such an over the top character!

It dropped off a bit toward the end, the first hour the best part, but overall I enjoyed it. Good use of an ensemble cast, small town locations and a somewhat rare (both sexes have their own subplot) equal opportunity plot. The use of the cast is perhaps particularly impressive, underlining the value of good performances by people you might vaguely recognize, but at the end of the day truly make or break many a scene or even movie. Overall, it is a nice satire of small town values with some humor and touching moments ... pretty good chemistry too.

For those with access, btw, clips can be found on You Tube.** The theme song, written particularly for the movie, also is quite good. This take from someone likely to be among the targeted demographic provides a pretty on point analysis as well.

---
* We have bakeries and bagel shops, but no places with seats and such that centers on the selling of pies, the bakeries for pick-up generally.

** The DVD has a track that plays the theme song along with stills from the movie, a sort of low rent music video approach favored by many amateur Youtube sorts, who are pretty creative when doing so. No closed captioning though ... a bit annoying, since I couldn't catch a line or two, and CC is great for that sort of thing.

Good Idea In Wyoming

And Also: Thom Hartman is taking part in some conference in Croatia, but still is doing two broadcasts from over there. His fill-in takes over the other three days, and thus far is doing a good job.

[See update at bottom]

Clause 2. When vacancies happen in the representation of any State in the Senate, the executive authority of each State shall issue writs of election to fill such vacancies: Provided That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

- Seventeenth Amendment

Unlike South Dakota, Wyoming provides a safeguard for the possibility that the resignation/death of a senator will result in a key Senate seat being appointed by a governor of a different party. See here as to the death of a Republican senator who some time back took over Cheney's seat in the House.

And, the state law requirement that the governor choose a member of the same party of the senator being replaced seems perfectly legal pursuant to the Seventeenth Amendment, which gives the legislature an option to let the executive provide a temporary seat. IOW, a state need not do so, it can leave the seat vacant until a special election (which is not required when a House seat falls vacant ... and the governor's choice here would not stay on to the next official election, which could be up to nearly six years in the future potentially -- the appointment is a stopgap until the election can take place).

[Update: Click the TPM link above to have the law here explained, a link to the law itself provided. In the comments, the author of that piece does a good job rebutting the Daily Kos Diary argument that suggests the law is unconstitutional. Besides, it has a taint of undemocratic to it, don't it? BTW, to clarify, when I say "next official election," I mean for the seat in question. The person who died just was re-elected, so technically (I guess) the appointment could conceivably serve to 2013. But, the law here requires another election the next general election (the law applies to various positions), which in this case would be 2008. This seems fair.]


The power of the legislature to set up the election and supply the contours of the executive appointment power appears open-ended, only limited by other provisions of the Constitution. And, I think it a good idea to have the temporary fill-in -- chosen not by the people but by one person -- in some fashion loyal to the person being replaced. This usually happens anyway, sometimes even by using the person's spouse or child, but not always. Likewise, the danger and fear is always there.

And, though we are talking strong Republican state here, the governor is Democrat.

---

Update: One of the Amar brothers strongly supports the other view, so much that his column is in effect a brief in support of the governor's sole authority, when s/he is given it, to appoint without the strings here. I am willing to accept that this might be the case though the one sided implication from text and a bit of history doesn't impress too much, surely not the reference to a concurrence in Bush v. Gore (which apparently, first time I heard of it, O'Connor and Kennedy implicitly likely agreed with) citing (dubiously, including per precedent) stronger language respecting legislative power over presidential elections. Besides that dubious "precedent," where are these other cases that supported the "principle" argued here?

Simply put, the language in Sec. 2 here doesn't compel the argument made, the "empower" language not as absolutist and complete per the text alone as the article suggests. And, as to giving the legislature too much power, the executive appointment (optional to begin with) is only "temporary." Likewise, after all it are the parties, not the legislatures that supply the three options for the governor to pick from. Honestly, I think the text a bit thin, if anything a 10th Amendment argument (favored by some these days too) can be made that Wyoming was in no way limited by the Seventeenth Amendment, the immediate question left open.

And, the governor after all has to disagree with the choices in the first place for there to be any real problem in practice. I don't really see this happening. Still, I really don't see why the legislature while "empowering" the governor to fill vacancies cannot set up general regulations that apply to state offices too. The fact three justices in Bush v. Gore dubiously suggested otherwise really is not a good argument, is it? This in for a penny, in for it all argument -- see some of the comments to original TPM piece -- is perilous in the Bush administration, and is pretty perilous overall really.

No sale.

Randi Rhodes: Enabling Bush Is Great

New Fray: The new Slate fray has its benefits, including the addition of HTML that makes post creation that much easier plus some other odds and ends. But, I'm not really a big fan of ranking posts, but guess it has benefits, and you can only see a few posts on a message board at once now. Also, determining who replied to my posts appears harder now. Such things are a bit annoying actually.

I'm not the biggest Randi Rhodes (Air America) fan generally, but yesterday she crossed some line. In her Democratic Debate coverage, she basically agreed with the Senate Democrats giving in to the President on the funding bill.

It was necessary, after all, so said Sen. Biden, since you need a veto proof majority (or a new President) to stop the war. All or nothing, apparently. Sen. Biden was to be honored for "taking one for the team" by voting on a bill he didn't really like, so that candidates with a shot at winning could vote thus. Note that about eighty senators voted for the bill. It would have failed if no Senate Democrats voted for it, given simply Joe Lieberman's vote plus a straight Republican vote (hurting a few in the process) would have resulted in failure as well.

And, John Edwards was disloyal, so said Randi, for calling Clinton and Obama out for submitting late token opposition. Left unsaid, adding I guess to his nonentity status, that Sen. Dodd actually had the guts to announce his position before the vote. Or, that Randi was in effect saying "fu" to the core of the party (and her show's) base who was against the bill, realizing more could have been done even if defeat than what a majority of the country (and a chunk of the party) itself saw as surrender.

Not that you would know it -- she only took two or three calls, the first AGREEING with the position, the one disagreeing cut off by a break. And, then she went on to another topic. The Biden position (as noted earlier here, Obama in part too with his "Democrats won't refuse to fund the troops in harm's way" b.s. ... do you LIKE furthering Republican talking points?) is that if the Democrats didn't -- after one attempt that left something to be desired in the first place -- give in so soon, somehow the troops would be affected or it would be a pointless enterprise since they would lose in the end.

This is how the Congress uses its power of the purse, something that is proactive, not to be blocked by filibusters or vetoes since Congress has the upper hand, if they had the guts to play it. This is how they underline, not just once and weakly at that, how they give in while the President holds his ground. This is pathetic. And, Randi Rhodes respects Sen. Biden for enabling it and thinks Edwards a disloyal little Democrat for making a stink. More of the same? Didn't know Randi was so much a member of the establishment.

Annoying, I can take. This is aggravating.

Not to go on a rant or anything ...

A look back ... I go off a bit here, huh?

I'm Reed Fish

And Also: A recent attempt by Red Sox fans to shame A-Rod by wearing masks representing the latest tabloid fodder -- him hanging with some little miss thing not his wife -- reminds one of those worn in this movie. Fun flick. Oh, sorta agree with this take on the season finale of House, though you don't necessarily need bells and whistles. Good time for a shake-up ... wonder how a new team will be.

I'm Reed Fish is one of those amusing little movies that has some problems, but overall is a pretty enjoyable experience. It takes place in a quaint little town that appears to be in Minnesota or something, if we can judge the 23 year old lead's accent. One is confused, however, given the other main characters don't have a similar one. The supporting cast, and this is a plus for this sort of movie, is fill with familiar names that deserve work and often thrive in these little indies. This includes Alexis Bledel (Gilmore Girls, looking nicely low key here, not so made up and such ... she sells cars!), Katey Sagal (Married ... with Children, looking good), Schuyler Fisk (Sissy Spacek's daughter, apparently on happy pills here), DJ Qualls (usual funny looking self), and others. And, the story is decent too.

Reed Fish's father was a long term voice of the local radio station, and apparently the glue that held things together, including dealing with necessary stop signs and the like. Not much goes on here, given the combo of a horse and zebra is a top story for the local t.v. station. After a tragic end, one that really is a bit much for this basically trifle of a movie, the young son took over. He's getting married in a few weeks and isn't quite ready to live the life everyone has apparently assigned for him. The return of a friend from high school -- Schuyler Fisk (who has a couple songs here, showing off her singing ability) -- totally throws him. The guy is a bit of a putz, but such growing pains are typical and people can relate.

[On a related front, I was thinking about how we generally follow the path of least resistance, considering other paths as basically impossible in any practicable sense. This quite often is not true, but we act as such. I thought about this when listening to The Bell Jar and reading up a bit about Sylvia Plath. Quite a few people, like her, felt smothered by life too. They just accepted and dealt with it, at times while having chronic malaise. Plath could not handle it and committed suicide. Sort of something to think about when you wonder why x lets things continue, even when damn it it's horrible. We can learn to live with near anything. Small and large.]

The movie turns out to have a certain conceit that ends on a questionable note, at least for me, so it didn't quite hold up to the end. But, independent low budget films like these often aren't 100% successful. Just enough to enjoy them for they are, yet another reason to not be too upset about handing over $10. It also is useful to watch them in independent film friendly theaters like the Quad.

Oh, and finding a Duane Reade with a free water cooler, plus a nice walk on a warm near summer night works too.