First Monday in October

And Also: Don Mattingly might be the sympathetic favorite of some, including apparently the boss himself (who clearly does not have as deciding of a role these days), Joe Girardi probably is the better option -- he has the managerial experience, was a catcher in both leagues (needs to call games etc.) and seems (to the degree I can tell) a bit more with it. Don is miffed and leaving the team. Meanwhile, A-Rod thinks 25+ million isn't enough, and the Yanks said "don't let the door hit you on the way out." Kewl, I say. Say goodbye to a couple other overpriced boobs, make the young guys and some role players more of a face of the team, and I just might be interested again. After all, they are the underdogs now, right?

After thinking about it when writing the post about privacy, I was able to get a copy of First Monday in October from the library. It turns out that the play, which in fact is by the same authors as Inherit the Wind, is much like the movie version. The movie added a few scenes, but nothing really to change the story (e.g., in the movie, the justice takes another to see a special type of machine at a museum ... in the play, he brings it to his "chambers"). The minimalism of the play vs. the more open nature of the movie does not really change much overall, though a surprise that is honestly a bit too melodramatic works better when it is not as hokey as it is in the movie version. Ditto some of the personal interaction between the two adversaries ... a bit too hokey in the film version.

The movie does have some nice visuals as well as an in joke of sorts where a law student from Paper Chase becomes a law clerk (though in the play, he is supposed to be from a less Ivy league sort of school). Likewise, the movie does have Walter Matthau ... but the primary performance on the stage had Henry Fonda! Fittingly, Fonda a few years later played a poor defendant in Gideon's Trumpet. Anyway, reading the play, I had Matthau's voice in my head, plus some Jill Clayburgh, who played the younger first woman justice. Something confuses me -- the original on stage was Jean Arthur, best known for films like Mr. Smith Goes To Washington. How can she play a character in her 40s in the 1970s? Arthur, who apparently had great stagefright and didn't do well, was much too old.

Justice Snow, a cranky old liberal who particularly is very concerned about privacy and freedom of speech while wary of corporations clearly was based on Justice Douglas, though some said the former was a much nicer guy. Douglas didn't like the play -- didn't think it really dealt with the issues in a serious way. The play has a few gems. One involves privacy and how God made the world alone, and it would be much different (and popular) if this was not so. Justice Snow also noted that privacy is no luxury; it is an essential (dissenting opinion) for true creativity. Judge Loomis, the conservative new women justice also had a good line about how she did have children ... her ideas were her children, some were painful and unpopular, but they had equal right to exist, and she cherished them all. And, Snow noted he and a conservative justice who died were like a couple of flying buttresses on opposite sides of a Gothic cathedral, holding it up.

The play has some playful lines as well, well played by Walter Matthau (who was really not that old when the movie came out, but had an old cranky look about him for years). The business of the Court was primarily referenced by two cases ... an obscenity matter (already passe by the mid-1970s) and a shareholder suit in a powerful multinational. The first was a pretty easy matter really, liberty vs. puritanism, the latter a pretty thin evil specter. Yeah, overall, there is some charming stuff, but not really a good inner core. Honestly, I thought Inherit the Wind a bit exaggerated too (no concerned young girlfriend etc. in real life), but there was more meat there all the same.

Good idea for a play, but Douglas sorta had a reason to be not too impressed. Still, especially for those interested in the subject matter or who aren't too discriminating, the play and movie might be worth a look. I did enjoy both in a fashion, enough good there to do so.

Couple Things

After writing my comment about the Rockies, they came back from a 6-0 deficit ... made it 6-5 in the bottom of the 7th. Shades of the Yanks in '96? No. They did not get that final run and blew it the very next half inning, falling to 9-5 (last I checked). Sigh. Meanwhile, my VCR clock must think we are following old Daylight Saving Time rules ... it is an hour slow. Next week, boy/girl! (never quite see animated VCRs, do you?)

Thoreau and Bush

And Also: The Indians were up 3-1 and had a chance to tie in the 7th in the seventh game as well. They couldn't close the deal, so the Red Sox again had a chance to steamroll. Thanks a lot! [Sarcasm alert, even if Rudy might be happy.] The NL have been pretty even with the AL in the WS since 2001, winning three and having a shot to close out another before falling apart. But, after a fantasy run, the Rockies surely doing a pretty sad job in the WS so far.

How does it become a man to behave toward this American government to-day? I answer that he cannot without disgrace be associated with it.

-- Henry David Thoreau

Every day it becomes clearer that Thoreau's answer is the only basis for a genuinely effective resistance to the accelerating depredations of the Bush-Cheney regime. Disassociation, boycott, filibuster, strike -- call it what you will, but the Gandhian tag might be the best: "non-cooperation with evil."

-- Chris Floyd

The exhortation to not recognize the legitimacy of the Bush Administration is sound (as is much of the cry from the heart at how far we have fallen), but the appeal to Henry Thoreau is somewhat less so. Thoreau influenced the likes of Gandhi and King, but one might ask "what exactly did HT himself do?" Spend a night in some local jail, his aunt paying the taxes, a symbolic protest that in fact was a repeat of a lesser known situation. Just as his time at Walden was in no way a matter of some escape from civilization or anything, there is a flavor of playing a role here. The value of idealism is not going to be begrudged by me of all people, but let's be real here.

[Still, yeah, any hero is likely to be no saint. All three had their weaknesses, but HT just didn't earn his stripes like they did.]

In fact, this believer in nonviolence later was an important defender of John Brown and in no way thought the Civil War was illegitimate. War is bad, except when it's not. Fine enough really, but given Gandhi/King would surely shun the likes of Brown, pretty telling. Likewise, given he refused to pay a local tax, Thoreau's actions taken to a logical conclusion is really anarchy. In the real world, apart from his dreamy realm, this simply is not a sensible way of doing things. Or, rather, practical. True enough that some simply do not take part in politics at all, including voting, given the corruptness of the system. But, how many who cite Thoreau want us to go that far?

This is a useful question, since the "reality community" in particular should be honest about such things. Surely, rhetorical devices are not to be taken totally literally or fully on face value. This is why demands for apologies for stray "over the top" comments by Democrats are b.s. ... it is underlined by the fact many are deep down more true than not. Are we to take the Declaration of Independence, including the rhetoric used in the listing of abuses, as gospel from first to last? Such literalism is the downfall of various kinds of fundamentalists. Still, if we ignore the slave owning of Jefferson, or that the problem was not just the "king," problems arise. Same here.*

But, there is some middle ground ... you know, like not agreeing to a quickie wiretap law, or blithely confirming position after position, after a bit of dissent. Rehnquist aids a coup, give him an in effect self-picked (his own law clerk/pall bearer no less!) replacement. He's credible and all, so no reason not to vote for him, right? Assume the rules of the game are the same, and the other side won half the battle. In effect, "success" now becomes a pretty low bar, the latest apparently having an attorney general who admits waterboarding is torture. Pyrrhic victory, indeed! I simply do not agree with some, including the inspiration of this post, that we have gone to hell in a handbasket.

We have gone far enough to fear the heat all the same and a better line in the sand needs to be drawn. HT might be a useful source of inspiration, but others who did more than talk the talk (and not always consistently at that) might be helpful as well. They might tell ya that moving the goal posts, including form activists, helps the cause. The core of truth is there and the "extremists" can cry when the path taken is not as far as they like to go. But, since it is pretty far, we can be satisfied with it. Again, it is helpful to be well informed about the whole thing, including taking those sacred texts like Thoreau with just a smidgen of doubt.

Anyway, ever try to read Walden? Sheesh. I'm with some character in a young adult book [it was long ago, don't know the name] who tried to do so ... better left to someone who is stuck in a small cabin on the outskirts of a rich mentor's land.

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* Case law also can be a matter of looking at principles and not facts, though in real life, facts should have some influence on the underlying law. Consider an important punitive damage case, which even supporters of the practice would admit arose from pretty bad facts. [The time lag is notable too ... over twenty years from the underlying event.] The "victim" in this case was a reckless driver, whose acts lead to the death of one, the permanent injury of another.

The driver (and passenger) at fault, of course, were unharmed. Their insurance agency, rejecting the advice of one of its own investigators (see facts in the opinion) took the case to trial, even though the victims wanted to settle for the amount of the policy (perhaps this was a red flag, given it was a low figure, and the accident led to death and major injury). Afterwards, the victims set up an agreement in which the "victims" would sue the insurance agency, but they would get nearly all the money.

The jury technically was concerned with the damages to the "victims," but knew when handing down the large award (the original concern of paying the amount in excess of the driver's original coverage was no longer an issue) who the true beneficiaries would be. Simply put, the big mean (out of state) insurance company is not quite the stereotypical bad guy here. And, the "victim" in large measure deserves the quotes.

Punitives benefit better litigants in other cases, but enough complications do arise to be wary of facts like these. BTW, note the opening sentence with its mention of "the measure of punishment" ... quite telling. Punishment is public and warrants more protection than civil damages.

Fried on Moyers Gets Me Riled Up

And Also: House is on shakier ground now ... why are they keeping the old team for cameos PLUS choosing a new one? Too busy. The regulars also seem a bit tired ... the set-up needs some juice. Not sure if any of the potential new team members really would add it. Also, lots of dark movies out there this season ... including the new one with Marisa Tomei. A bit, forgive me, of an overkill. Some, including Eastern Promises, still are quite good.

I posted some new books on the side panel, which were referenced in earlier posts. Privacy was touched upon in some of my reading as was executive power and such, so it raised a red flag when Charles Fried (from the Reagan Administration) was on Bill Moyers with some Democrat opposite member and FISA came up. FISA, which requires a warrant from a special secret court, and even there can be obtained after the fact (this without touching recent amendments and such), was deemed as one of the unfortunate things that Nixon (whom Fried didn't vote for) wrought.

Oh? Why exactly? Apparently, it is really a silly law, and impersonal trolling of personal information (as compared to the individualized targeting that surely arises in some cases ... arising from such trolling!) is in no real way a threat to privacy. An argument disputed in the article John Dean cited.* But, what really pissed me off was the implication that because it was a silly, perhaps nefarious, law, the President could just ignore it. In fact, though he emphasized torture was very different, Fried appeared loathe to say as a matter of law (as compared to morality) the President could not do it.

This sort of thing from libertarian sorts (Fried respects a right to privacy etc.) suggests why some might take them seriously -- suddenly, executives can be trusted with power. Suddenly, we can trust a single person with power that Congress as a whole should not have in various cases. Suddenly, the rule that stupid or even harsh laws that Congress has the power to pass cannot be ignored or declared unconstitutional just because we do not like them becomes not part of a general principle. Now, utility or such matters. Sorry, doesn't wash.

An ongoing theme in the Cato Supreme Court Review is the difference between "politics" and "the law." One depends on the vagaries of the political process, the other is consistent and fairly set, upheld in part by judicial review that uses techniques that are specially tailored to judges (in the federal sphere, life time appointments). In practice, judging tends to be a bit more messy than some of the essayists there would like to admit (surely on panels where inconsistent swing votes were around long before Justice O'Connor). And, the trust in original understanding isn't any panacea. And, there too, some are too in love with the executive (John Yoo is on the board).

Such a lackadaisical concern for following the law should be deemed improper behavior, basically beyond the realm of serious discourse. See also [particularly, comments], the putative new attorney general, and his problems with saying no to waterboarding. The guy simply has no business being confirmed. The fact an apparently serious sort is quietly saying it on a national medium does not change matters. Fried btw disagrees apparently with John Dean, who wrote a book on the Bush years entitled Worse Than Watergate. He thinks various things Bush did are reasonable, if not all proper. Nixon said -- after he was President -- that when the President does it, it does not break the law. Bad bad.

But, Bush is different ... he speaks of constitutional power. A higher law. Well, didn't Nixon mean that too? Fried's opposite number on the show, who has yet another "just how bad things have gotten" book out (it's a cottage industry), underlines the various problems with Bush, including the secrecy ... he made outrageous claims, but often did not have the guts to make them out in the open. In fact, it was not noted that the only reason the whole breach of FISA etc. was made clear -- and the President raising constitutional and AUMF based justifications -- only because of leaks and media reports!

Finally, reference was made to FDR and Lincoln, who arguably also broke the law for ends history deemed justified. A core difference, as the other side noted, was that they were much more open about things and in various cases went to Congress for authorization ... without being forced. The examples that fit current events suddenly become few, especially when we note that the Civil War and ongoing war in Europe were more clear and present dangers than the current situations. With more at stake, they played more fair. And, in some cases, still crossed the line.

After all, President Truman's move to seize the steel mills led to the famous decision, and Justice Jackson concurrence, that is now cited to set limits on presidential power. Justice Douglas also made an essential point:

There can be no doubt that the emergency which caused the President to seize these steel plants was one that bore heavily on the country. But the emergency did not create power; it merely marked an occasion when power should be exercised. And the fact that it was necessary that measures be taken to keep steel in production does not mean that the President, rather than the Congress, had the constitutional authority to act.

And, in various cases, it does not mean either can do whatever is deemed in the nation's interest. This might not be something a Republican candidate for President can admit, but it's the truth in a limited government.

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* Torture is a unique violation of human dignity, but this does not mean lesser violations suddenly can be deemed acceptable. Privacy, especially in this intrusive age, is a prime liberty for us peons. As the essay referenced suggests, breaching the law and expected/understood rules of the game, lack of oversight, aggregation of lots of bits of data, and so on also leads to serious concerns.

Many deem fundamental core principles here that are very important to them, but like those who deem lack of belief in certain things an equivalent to lack of belief at all, apparently the wrong ones. Thus, they are the "unprincipled" ones, while right thinking sorts are the true "patriots." Or, so they tell themselves.

Honestly Deluded

And Also: Sen. Dodd's opposition to the telecommunication immunity provision suggests a value of longshot candidates are akin to third parties -- they might have no shot at winning, but they can bring to the fore important facts as well as pushing major candidates along the way.

Someone was discussing the military industrial complex and referenced the felt need by the government of going into military conflicts, in large part it seems because it was the only way to get the power and such that this brings. There is an implication from some parts that Bushco and such knows their claims that national security requires our foreign military adventures is b.s., that they are just lying for oil, contract goods and so forth. This is the "bimbo theory" in a fashion ... they can chew gum and walk at the same time, and in part be driven by self-delusion. In fact, when self-delusion leads to private gain, it is that much easier. This is not only seen when dealing with food and sex, but they are two good examples.

Basically, we must realize that in large part that these people have convinced themselves that their crap is true. This seems hard for some to understand, because it is clearly crap, but such is the case. It doesn't help that they often do not want to serious explain themselves, realizing that under current law (or logic, if forced to face up to it ... self-delusion hates that ... see the "reality community" alternative), they b.s. us and/or hide what they are doing. But, this does not erase that they generally believe in what they are doing. Bush's self-delusion only makes things worse. Such was often the case -- consider the self-delusion of slave-owners, who thought theirs was the only way, morally and practically.

Consider Sen. Craig. I'm really tired of all the snide remarks made by various sorts about his bathroom habits, including let's say liberal blogs and talkers. At some point, it gets tiresome and just petty. The guy married and has two adult kids, in fact getting married soon after a 1980s page scandal he feared he would get caught into. It clearly appears that he deceives himself (enough evidence is available to doubt him) as to his sexuality. This includes the whole bathroom incident. Its akin to anorexics looking in the mirror and thinking "I'm fat." It doesn't justify his actions, but it is quite possible that he isn't lying ... or, rather, is lying to himself. This deeper problem makes fighting homophobia and public policy that hurts homosexuals that much harder. It has to be faced and mere ridicule (and laughing at what Republicans have to deal with) only takes us so far. And, since people we like lie to themselves too, we laugh a bit at our peril.

On a related note, it is useful to know exactly why you oppose a certain person's views. A talk show host met with disgust the idea that you can "love the sinner, hate the sin" in respect to homosexuals. [It's easy in these cases to change the subject, since the reasoning of the other side often is rather dubious.] This was "hate speech." The person is a self-professed Christian, one who believes Jesus' message was ultimately liberal. I wonder if said person read the whole "love thy enemy" thing. Thus, you care about the humanity of the vilest criminal, but still can despise the crime. Same here. You can think homosexuality is akin to some sort of psychological disorder -- something to be sympathetic about, but drives does not mean the end is benevolent. This is hard for some people to accept -- since the underlining idea is so harsh as applied to homosexuals -- but it is a perfectly sensible principle in general.*

But, many basically do not take the other side as honest, they basically reject the idea of honest differences. How could the other side honestly believe such crap etc. It is amazing that by now, given all "crap" even our loved ones firmly hold dear, that this still is an issue. But, it is, and leads to a lot of bad feelings and shouting. Brings to mind a recent Digby column on the importance of science education, particularly the requirement that you know how to reason first. I question sometimes if people quite know the basics.

BTW, looks like the Rockies are about the lose. The Yanks needed a couple games to get into a stride in 1996 too ... after a 12-1 and 4-0 pair of loses. And, they didn't have an eight game layoff. Still, darn Indians.

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* This "rewriting the premise" principle (aka "talking past each other") is popular in law. Many court opinions basically write themselves via the opening premises, often not quite the same thing as what actually happened. But, surely in appellate cases, the "facts" are malleable to better fit the "law" being handed down. [The U.S. Supreme Court largely takes cases to decide broad principles, but it is bad pool to cheat along the way ... of course, they sometimes do.] Same here -- things seem mighty logical when we set up our conclusions. The facts, however, don't always fit them.

Various

After a failed (mostly, but sadly not totally, by a party line vote) attempt to censure the guy, Rep. Stark apologized. As one reply noted, flight suit and all, "amusement" hit home. But, we cannot be honest because ... well Dems are wimps is just too pessimistic, right? Interesting bit of redaction in the opinion concerning a case of mistaken identity in a case arising from 9/11, raising a few issues including psychological coercion. Meanwhile, important news in Poland (sadly, Polish news in Iraq recently too).

Sports Update

Miami and St. Louis are still winless, the former in part thanks to the Jets sole win, which wasn't easy. This week, Jets blew a 23-10 lead, but hey, Chad led the team to eight at the buzzer. Unfortunately, this was after the other team intercepted a desperation toss to put them up by 15 ... the game ending two made it 38-31. Giants did well against another scrub. And, the Red Sox came back from 3-1 to get to the WS. The Yanks also were down 3-1 ... unfortunately in a five game series. When the Red Sox get to the WS more times than the Yanks ... well, it's time to go. Oh, Bears win via a late score and Saints now have two wins! Who will be embarrassed and be beaten by the Falcons?

Gone Baby Gone

Gone Baby Gone is Ben Affleck's directorial debut with his brother in the lead role as an advisor hired by two members of the family of a missing little girl. An already messy situation turns messier and just a bit too melodramatic to my tastes. There is a sense of individual moral choice that adds complexity, and the hard edge is pretty good, but I did feel used. And, things were a bit too neat ... in a fashion ... at the end. Mixed bag. Didn't quite like it.

Privacy Again

I have passed enough references to privacy, a general interest of mine, to warrant another post on the subject. First, someone referenced Federalist No. 10, which underlines the problems with strict reliance on popular will. Thus, we live in a republic, where direct democracy is tempered in various ways:

Complaints are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties ... particularly, for that prevailing and increasing distrust of public engagements, and alarm for private rights, which are echoed from one end of the continent to the other ... to secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed.

A "republic" in ultimately is concerned with "public things," which leads one to the reality that there is something else. An important aspect of revolutionary thought, those things "for which we stand," is the realm of private thought and action. It was eminently appropriate for various justices in the Griswold ruling to reference the right of privacy as "from the totality of the constitutional scheme under which we live." As Justice Douglas noted a few years before in Poe:

"Liberty" is a conception that sometimes gains content from the emanations of other specific guarantees or from experience with the requirements of a free society.

The issue there was privacy as well. I referenced Peter Irons' book on religious disputes, including the Newdow case. The Supreme Court in that case avoided the question, though three justices would have upheld the practice, emphasizing the hesitance of getting involved in family matters. It noted:

One of the principal areas in which this Court has customarily declined to intervene is the realm of domestic relations. Long ago we observed that "[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States."

Likewise, the Supremes noted in the guns in school zones case that there was a hesitance to allow Congress, unless clearly authorized by law and the Constitution, to get involved in "an area of traditional state concern." Thus, the latest Cato Supreme Court Review* has a chapter assuming the partial birth abortion ruling was based on federalist grounds (and going the other way). The general idea suggested here is that certain things, like same sex marriage bans, simply are not the realm of Congress. Surely, when they single out certain "immoral" acts as compared to general principles.

The opening quote brings to mind various complaints that current majorities (a Republican minority plus Democratic enablers) infringe upon our rights. A glaring example concerns the FISA law, which makes clear important principles (privacy, rule of law, congressional power, etc.), or rather, their violation. John Dean has written a trilogy of books addressing the excesses of the Bush Administration and conservatives (put quotes around that if you like) these days, and his Findlaw columns also touch upon such issues. He references an useful essay on privacy:

The concept of "privacy" encompasses many ideas relating to the proper and improper use and abuse of information about people within society. Privacy protects information not only because it would cause others to think less of the person at issue, but also simply to give us all breathing room: "Society involves a great deal of friction," Solove writes, "and we are constantly clashing with each other. Part of what makes a society a good place in which to live is the extent to which it allows people freedom from the intrusiveness of others. A society without privacy protection would be suffocation, and it might not be a place in which most would want to live."

This need for "breathing room" reminds me of the movie First Monday in October, the Matthau movie based on the 1970s play visualizing the first women justice. One scene references an opinion of the liberal justice (based on Douglas, who didn't really care for the play, thinking it not really true to life) on the importance of privacy. He noted that God created the universe alone. If he had company, the glories of creation might be replaced by strip malls. I'm paraphrasing -- it was a nice metaphor.

And, now back to our regular scheduled programming. Indians ... come on guys!

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* The annual series provides analysis of the last term of the Supreme Court via a generally libertarian mentality via essays by different legal sorts. Interesting, and dissent on such issues like affirmative action is a useful thing. Still, sometimes too simplistic, like one person assuming we all at the beginning -- before we f-ed things up an all -- agreed on the basics of constitutional principles. When Hamilton and Madison debates things in the early 1790s, this Golden Age must have been very short.

More Republican Rules Of Proper Discourse

Update: The full remarks of Rep. Starks can be found here.
Some of the comments appreciated his bluntness. FWIW, poll data and his own constituents appear not to want him to apologize. Compare this to the weasel remarks of the future AG, who cannot bring himself to denounce waterboarding as torture. This sort of b.s. is what really drives many of us nuts. Not only do they support bad things, half the time they are wimps about admitting it. Continually helping them is a core reason why Dems in Congress have such low poll ratings.

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Republicans have found fiscal responsibility ... cutting children health care. A House Dem cried foul, referencing the money spent in Iraq. However, he spoke of people dying for Bush's "amusement," which allowed the Republicans to get on their high horses again. TPM notes this underlines that they are babies, but doesn't really emphasize that this isn't anything new, really. Like typical bullies, they cannot take what they dish out. Ridicule Kerry's service, fine. Dis the President ... wah wah. Of course, Pelosi had to go out and apologize for a Democrat who has let his/her disgust out, which in the real world sometimes comes out in a messy fashion. As with the MoveOn ad, are we supposed to make a big issue of it each and every time, exaggerating it in the process? Sure, politically, it is wise for the other side to do so. No reason to help them.

Remember the few who booed when someone representing everything Sen. Wellstone opposed came to his memorial service? Many responded in horror, as if this very human bit of emotion could not be forgiven. Al Franken, who loved the guy, particularly despised this outrage, including from those who never actually saw what happened. At the time, this pissed me off -- damn a few whose hero died in a plane crash showing some emotion. For being human. They should apologize deeply, going on their knees in shame. Oh shut up. Sen. Lott knew that too; he wasn't shocked that a few booed him. This is sorta why Dems liked him more than the current Republican leadership -- less of an asshole.

There are many reasons why people are dying in Iraq, including various twisted reasons arising from Bush himself. "Amusement" is probably not the best word -- though his whole flight suit bit suggests he enjoys his "war president" role a bit too much -- but some blunt term would surely fit. One that just might be "mean." Republicans can't take that ... they are big babies. But, heck, it is the Democrats fault, you know, for helping them out. They have to be on their best behavior, more so than any reasonable person can assume imperfect politicians will be, or political failure that will further horrible policies (which the critics tend in some fashion to admit are horrible) will be in some fashion deserved. How amusing.

Meanwhile, one of the fired prosecutors -- remember, Republican loyalists hired by the Bush Administration in the first place -- thinks the soon to be new A.G. "gets" it. Various people remind that the guy excessively supports presidential power -- we knew already though -- and couldn't just go out and say waterboarding is wrong.* But, hey, "torture" is really bad. Bush says that too. We don't "torture" though. So nothing to worry about here. Anyway, Gonzo was bad for many reasons, basic incompetence and politicization of the Justice Department just two reasons. Admittedly, sort of a baseline problem, but being better is not enough to justify confirmation.

Even if he "gets" it in one fashion. But, since the old guy is so bad, expect a very lopsided vote. He has just so much to criticize, the lame long after the fact nature leaving a lot to be desired notwithstanding, after all.

[Here's more on another issue that is part of the mix ... voting rights and how the Bush Administration does a uh somewhat poor job upholding them a bit too often.]

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* Glenn Greenwald, with links to those concerned, noted today:

There is a lot of hand-wringing [links] going on over the fact that Michael Mukasey is explicitly defending indefinite detention, torture, and illegal surveillance. But that really isn't all that notable. These are the things that have become normalized. These views are now mainstream in our political culture. How can anyone expect the Senate to block Mukasey's confirmation based on policies that -- for years now -- it has known about, acquiesced to, and even legalized and endorsed?

Since he obviously opposes such things, hand-wringing is not evidence GG thinks people are exaggerating. Will the election of Hillary Clinton -- who is broadly against bad things as "policy" but who knows what will happen in specific cases -- really change this? Does a movie like Rendition, which many won't realize is more real than they might like, have much effect? How much have we realized that we have gone much too far in the last few years? That a new President alone won't be enough?

Torre and Applegate

Samantha Who?, in a somewhat weird ABC timeslot of Monday's at 9:30 (soft slot, but when was the last time ABC had a 1/2 hour show there?), has potential. Christiana Applegate, best known for playing a bimbo (quite well) on Married ... with Children, has just awaken from a short coma with amnesia. Samantha thus does not recall how much of a bitch [and, apparently, a bit of a slut too] she was, but does see the car accident (physically, she seems okay) as a means to start over. With some familiar faces, including Jean Smart and Melissa McCarthy (of Gilmore Girls), the cast seems game. And, as with my usual 9:30 fare (Rules of Engagement), who really expects that much from the timeslot, anyway?

Baseball: Joe Torre's decision not to take a one year $5 million deal with incentives (up to three million, if they get to the World Series; he made $7.5 this year and wanted two more) was announced around 4:30 on Thursday. David Letterman had a Top 10 list explaining why. He tapes around 5:30, so that is a pretty good bit of comedy writing -- they had about an hour, after all, to formulate, edit and approval the whole thing. As to the deal, I personally don't find it that shocking and all, but JT has made his money and accomplished enough to decide that he didn't want to be treated that way.

Fine enough, but the level of disgust in some quarters is a bit much. We live in a "win now" world, and the Yanks management has a more reason to expect more after seven years of not winning the World Series than even various other playoff teams. Again, they did not even get out of the first round four times and of six, three years in a row. Honest fans would agree they expected more. It was a bit sickening for some radio guys to make up excuses or (ridiculously) allege it was just about this year or getting to the WS every year. Or, whining about the Yanks not having certain tools, when no team -- even those who go all the way -- tends to have all the parts you need.

One even insisted that if the Yanks didn't give up that run in the eighth in Game 2, they would have won the first round. Oh please. Not only is that a dubious assumption, but whining about an unfortunate run ignores how the Yanks repeatedly scored tons of runs during the season. Now, one single run matters so much? Amazing.

[Overall, the guy had the job for twelve years, much longer than one could dare to hope even on a team not owned by George S. Often, the end comes off somewhat badly. Taken on that level, especially if we are supposed to treat the Yanks like just another team when talking about playoff wins and whatnot, Joe Torre came off pretty well. I have a feeling he knows that more than many of his defenders.]

A Bit of Spine?

Sen. Dodd deserves respect, especially given my past complaints, for announcing his plan to hold up the telecommunications immunity bill (thanks Senate Dems!) ... see Glenn Greenwald for some more background, also to see why the new attorney general leaves something to be desired. Too bad my senator (Charles) went out of the way to praise the guy. Atrios has more.

God On Trial

And Also: Joe Torre turned down a new contract that had a pay cut and "incentives" coming with playoff advancements, apparently signaling the end of an era. That is, the manager (1996-2007), not the giant payroll and superstars, which lacks some of the role players that meant success in the playoffs ... what, though some local announcer sorts refuse to accept it, simply is expected by many fans, and surely the management. Well, when Joe talks, we will find out more.

Each day elementary school teachers in the Elk Grove Unified School District (School District) lead their classes in a group recitation of the Pledge of Allegiance. Respondent, Michael A. Newdow, is an atheist whose daughter participates in that daily exercise. Because the Pledge contains the words “under God,” he views the School District’s policy as a religious indoctrination of his child that violates the First Amendment.

-- ELK GROVE UNIFIED SCHOOL DISTRICT v. NEWDOW

I was proud to be an American when Dr. Newdow was able to -- a rarity that has occurred a few times over the years [once involving the murder of a spouse in Latin America] -- argue his own case in front of the Supreme Court. Self-argument is more prevalent in the lower courts -- one of the Ten Commandment cases was so argued, a replacement only coming when it reached the Supremes (combined, both were 0-3). These are two of the cases discussed in Peter Irons' most recent book, God On Trial: Dispatches from America's Religious Battlefields. The others being the other (2005) Ten Commandments case, one involving a cross in a veteran's memorial, prayer at public school football games (in particular, an election to choose the speaker) and the Intelligent Design case in Dover Pennsylvania.

Irons is known for making Supreme Court cases down to earth and personal, telling the stories of the litigants involved,* here providing a good format: start with some introduction over the general issue of the Establishment Clause (though each side in some fashion probably sees these cases as a free exercise matter, all were treated as EC cases), discuss the history of the five cases (two commandment cases discussed together), and then provide testimonials -- in their own words -- from representatives of each side. The obvious value of this is twofold at least: it makes for a better story/book and helps dispel some myths of who is involved in these cases. Thus, though the book is over three hundred pages [but each part quite manageable ... the testimonials about ten pages each], one would hope that it reached a wide audience.

The title of the book is a bit of a misnomer, "God" per se not really on trial, and "battlefields" sometimes somewhat harsh. True enough, in some cases in sadly real ways (including school harassment and harassing phone calls), some of these cases cause some serious dissension. This is so even if one side wants to make them much ado about nothing. And, religious debates continue to be very important, including politically. But, some perspective should be supplied. Likewise, the book clearly underlines that we are not talking only about atheists (though they were involved too) here. Several of those making EC claims are practicing Christians, who disagree with some on the other side that certain "vanilla" references to "God" (some quite flavorful) are perfectly fine.

The atheists are interesting as well. One of the lesser known cases concerns a big cross put in a veteran's memorial. An "atheist in a foxhole" found this offensive (underlining the complexity of such things, he didn't find creches really a problem, given their temporary nature). It's a bit hard to demonize a Vietnam veteran as some ACLU flunky. The case also underlined the limits of the courts -- repeatedly, a court determined the cross illegal (or some dodge used to avoid removing it ... to a nearby church! ... a suggestion by the vet himself, yet), but yet another strategy was used. Now, the federal government has gotten involved, taking possession of the land ... and, after fifteen years (and the death of the original litigant), the case continues. Ironically, one person who came late in the day to "save" the cross is in fact Jewish, supporting (misguidedly) some sort of local option ideal.**

See also, teacher led prayer in public school long after the 1960s cases that banned it. This by the way suggests the tip of the iceberg nature of many of these cases. The prayer at football games case, involving what seems as a relatively benign matter of student choice, originated with clear religious favoritism ... including, harassment of Mitt Romney's people. Such harassment often occurs out of sight of the courts, of course, underlining that protection of our liberties ultimately is up to local communities. OTOH, not all of the cases was as personal -- the Kentucky Ten Commandments case actually involved members of the same family, the original display placed upon request without much thought given.

Ultimately, how important are these cases? Intelligent design does not belong in science classes ... it favors a particular faith and corrupts the principles of the class as well. Various religions have some strange "history" that can be used as well. Favoring a certain religion when setting up memorials is also a bad idea; we are not talking individual graves here, but a cross for everyone. After all, even Justice Kennedy -- who sees nothing wrong with most government sponsored religious symbols -- thought a cross permanently fixed on a governmental building is problematic. And, mixing church and state in public school continues to be a problem in various cases, which even those who might accept student prayers at football games will admit if they were honest.

The other cases are important as well, if somewhat less so in some respects. The Supreme Court reminds that "national flag is to serve as a symbol of our country" and "the Pledge of Allegiance evolved as a common public acknowledgement of the ideals that our flag symbolizes." If so, if it is used in a way that disfavors certain (dis)believers, it's problematic. A problem that is expressed in other ways as well. Furthermore, even if you recognize the "historical fact" of "nature's God," and the Pledge is more active than just some recognition of history, it is quite a different matter to pressure schoolchildren to reaffirm it via what amounts to a test oath. And, even the somewhat less offensive Kentucky Ten Commandments display (struck down on "purpose" grounds, a later similar display without such a background was upheld by a lower court) was defended on specious grounds that it was representative of our legal history. A particularly sectarian one at that.

Such is my .02. Overall, the stories are fascinating. A homeless lawyer? A doctor/lawyer, an atheist who has the luck to have a child with an evangelistic Christian? And, a whole bunch of other characters generally from "red" America (though Austin is a bit of blue in a sea of red), that all seem like down to earth people, including small town folk you would never think of seeing in the spotlight. You could not make this stuff up. Irons can lay it on a bit too thick (if you read his stuff, you might know what I mean) sometimes, but these people definitely have life stories that would make good fiction. The way Irons gives a feel of "We the People" particularly makes this a worthwhile read.

The media, not always best at reporting legal stories, can learn something. There is a lot of unmined potential there.

---

* This was seen in his past books, including one comparing the views of Brennan and Rehnquist, the former known for being concerned with the stories of the litigants ... well, at least, those on the side he supports. The bias, surely not limited to him, was clear; thus, the format of this book is particularly useful. The fact that Irons was involved in a couple of the cases himself, one as a litigator (calls to his house led him to step aside) and the other assisting on briefs underlines he too has a dog in the fight. But, including in conclusionary remarks that opposes extremes, Irons comes off as fair.

Irons also brought the Supreme Court to the people in a more controversial way, releasing edited versions of audio before they were more broadly available online (Oyez and C-SPAN in a few cases), much to the ire of some of the judges. His May It Please The Court series is a gem for high school students and the like, though it unfortunately went out with a bit too little editing. Two glaring pieces of evidence included an audio edit instruction left on one of the tapes and noting a certain justice asked a question, even though it was before he joined the Court. As a lawyer and law professor, this really was in bad form.

** In his remarks, there seems to be some confusion between a cross to represent all vets in a memorial, and the ability to put a religious symbol on any sort of publicly owned land. Simply not the same thing. There is also the idea that some sort of "Jesus" prayer is a problem, but not a reference to "God" ... though in this case the symbol is clearly Christian.

It's a cross, after all! In fact, some people seem not to have read the gospels. Jesus not only told us to pray in private, but opposed oaths -- just say "yes" or "no." But, suggesting "so help me God" is a bad idea will liable to get you in trouble, though it is true that it has become optional is many jurisdictions.

Rockies Win ... Yawn!

After all, they only lost once in the last three weeks or so, and did that only to have an exciting one game playoff ... and then swept the team that beat them. Namely, the Diamondbacks, who had a decent chance to tie in the ninth after being down 6-1 in the 4th ... but with one on and one out, the guy swung on 3-0 [one of a few questionable moves]. The networks are just praying the Indians beat Boston in seven ... at least someone will play a whole series. And, maybe, it would be the better series, but who can count the Rockies out either way? Oh, the Giants won again too.

Canvas

The NYT basically called it a good Lifetime movie, which is not necessarily a bad thing. Canvas concerns a family, a preteen boy in particular, dealing with a mother with mental illness. Good performances throughout, but it is in particular a good account of the life of a ten-year-old boy. Some predictable moments, but one good rule of thumb -- Marcia Gay Harden usually is in pretty good films (TV too), more so recently it seems.

Evolving God

And Also: The NY Daily News opinion pages often are garbage (one guy in particular really pisses me off), but the one headlined with "why I won't vote for Hillary" by Charles Krauthammer made me laugh. Shocker really. Barack, Charles? Nah, not enough of an a-hole for his tastes. Maybe, Biden. His comments on her lack of principle hit home, but the critical vessel leaves a lot to be desired all the same. I doubt such denunciations actually hurt her either, given the enemy of your enemy deal. And, who exactly do you like? Republican frontrunners leave a lot to be desired, and principled sorts like Ron Paul are too anti-Iraq war for his tastes. Still, the headline was funny.

Recently, I have discussed my belief that "religion" is a broad concept that is not limited to belief in a specific God and the rituals that go with all that. In Evolving God,* the anthropologist Barbara J. King agrees, citing in part the works of Karen Armstrong (some time ago, I read her history of God, also reading her take on the Genesis ... the former got a bit tedious when dealing with more mystical and psychological understandings of God, the latter a nice little analysis). As she noted in a useful Salon interview, she thinks "religion is all about emotional engagement and social action." A matter of "belongingness" that is an outgrowth of our evolutionary development.

King studies primates, which are basically our cousins -- we are not "evolved from apes," but are related by a common ancestor. Thus, they can tell us something about the origins of religion. Basically, chimps and gorillas have the basic core qualities that led to religion -- meaning making, imagination, empathy and rule making. Religion is basically our means to formulate a place -- a sense of belongingness if you like -- in this world, growing out of a need and the ability to carry out a means to meet it. When you say "religion," some people think going to church or prayer. But, for many -- including many Jews and Moslems -- it is a way of life and not so easily cabined. And, those who speak of "value voters" and such will tell you the term is broadly defined as well.

I personally think this universal way of looking at "religion" is a good policy. King refuses to say if she believes in God -- seeing that as personal -- but does note she is "spiritual," in part by her connection with nature and even in such small acts as kindness to pets and animals she passes by in nature. Of course, her life work is dealing with primates, but she clearly does not mean "spiritual" as a matter of "spirits" or such, though early humans clearly often took a pantheistic view of life (studies of "primitive" societies suggest as much). Cave paintings (the most famous ones are from around 17 thousand years ago, but some evidence of much older paints are evident, use of red paint on artifacts especially) also suggest not only a complex mental life (art and music can be quite spiritual or religious acts), but also shamanistic qualities such as fantastical animals and man/animal hybrids.

Homo sapiens came on the scene around two hundred thousand years ago, but the chimp/ape comparisons provide insights on the qualities earlier humanoids had. These people -- a word surely applicable to the genus "homo" -- for instance, made some relatively complex tools (vis-a-vis other animals, even other primates). Developments in tool making do not occur in a vacuum. As our ability to make tools develop, so did other things. This includes our mental life generally. By 65 thousand years ago, Neanderthal burial sites are evident. As with body ornaments, which was also evident by this time, this suggested some symbolic mindset. Some meaning, if only respect for the dead, though she thinks some understanding of an afterlife is probable as well.

She does not go into the afterlife point, but does reference her leanings in the interview. Armstrong btw once defended the use of idols by ancients -- something ridiculed by some Jews at the time -- by noting that they did not think the idols were in themselves divine. They served as a sort of conduit to the divine, something that surely is evident to let's say Catholics, who often favor relics or instruments like rosary beads or statutes of the Virgin Mary. Perhaps, you can say even if such things are not "real," they serve a quite real value by symbolically serving a purpose. Like a flag represents something (or a wedding ring ... such items can be "sacred," having special meaning even standing alone), symbols are an important part of human development and basic survival/happiness.

Giving meaning to life is at the core of religion as are such ritualistic acts and items. King also argues that one cannot separate religion and science into two compact categories. Religion is part of our existence, so a scientist cannot ignore its development and existence. I'd add that God is understood as part of nature, in fact, many would say nature is infused throughout by God. How can we totally separate the two? The word "supernatural," therefore honestly confuses me. If aliens exist, they are extraterrestrial ... but those who believe in a spiritual universe generally think it exists here as well.** Some polls suggest over 90 percent think God exists -- scientists are not all from that ten percent. And, again, "religion" in broadly defined in this book.

As with religion as a broad way of life, King also opposes the idea there is any one "God gene," religion in fact a sum of many parts, parts that at times needs development to grow and thrive. Such is the case with maternal instinct in various primate -- the possibility is there, but it needs development. It is also interactive. Thus, when two apes interact, they build off how each other acts, just as we in various ways alter our communications by the responses we receive. Life is like that -- it is not a one plus one equal two affair, but an ever changing complex equation. Science surely is, especially when dealing with incomplete evidence and ever changing -- in small ways and large -- understandings of that evidence, new evidence of human existence earlier than previously thought coming as King was working on this very book.

So, the book ends on a somewhat agnostic note, professing that no clear understanding of just how religion originated can really be offered, but stating the evidence does offer some useful answers and clear possibilities/probabilities all the same. This lack of evidence at times might lead the reader to be a bit disappointed, since we just do not know a lot about the details, but it is reassuring as well. A wise man once said that wisdom comes from knowing what one does not know, and a humane expression of the fact -- while teaching what one does -- comes out of this book as well.


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* I find the subtitle a bit pretentious -- A Provocative View on the Origins of Religion. Not only does the book shy away from make crisp conclusions on how exactly religion "originated," the word "provocative" is a bit too cute -- if literally correct. Are we now in a state where books have to shout out that they are "provocative" and controversial/thought provoking?

** Many who believe in God do so for some quite tangible ways -- some offer "arguments from design" or note the positive results of their faith and religion. Or, perhaps, accept an argument from authority -- we always followed this path -- which is something honored in many other areas as well. The fact that this often is a dubious enterprise, leading to assumptions like the earth as the center of the universe and so forth, does not erase the fact that religion is pretty common in this respect. "Faith" suggests some leap, but blind faith is less evident than some imply.

Firing Joe Is Not Outrageous Even If It Might Be Ill Advised

And Also: The Medellin case is back. Note that Bush doesn't think notifying consulates when foreign nationals are arrested is a requirement. He just wants to defend his power here. This is not the best way to honor international law (and the Supremacy Clause), but you knew that. Some background on the original crime here. More on the case.

Sports is a replacement for war. It also provides an emotion release and escape along with various other good stuff. Such explains the passions of various fans, including disappointed NY baseball folks. Some who think Joe Torre should go. This is deemed "greedy" and such by some, including the top two voices on WFAN aka the top local sports radio station.

The possible replacements and long service suggests that it might be best to keep him, though honestly, I thought they needed a change last year, and a miracle rise from the dead mid-season does not really change things for me. The assumption appears to be that some think they should win the World Series annually. How about, especially after the 2004 debacle, stopping this (three times now) first round bye bye? Does the manager not play some role here? Or, does it only work during the good times?

Apparently, the top payroll team that fans are encouraged to think is special should be given a break. They want to have it both ways. Joe's service is excellent. But, are we supposed to be that impressed that they beat out Boston (Pedro, a few hitters and fairly average talent) and Toronto (consistently average) year to year? The Braves managed a similar feat with much less payroll. I guess the early World Series success (centered on the same inner core of people ... perhaps a "great" manager can do so with new people) is supposed to carry him until today.

Maybe so. But, it is not "greedy" to expect a second round showing in three years or even a World Series win in seven years from this bunch. The owner is honored for wanting to win and spending money to do so. Now, such higher expectations is deemed in bad taste or something. Foul!

Various

The responses to this defense of Hillary Clinton's "experience," particularly by Dilan, hit home. Though some wish not to admit it, it is time for Joe Torre to go -- the Yanks are an "all the way" team. Repeated failures in the first round and the higher standard for this team send up red flags. The House FISA bill seems credible (this means it is only partially problematic) ... did pressure actually work? Will it survive? The end of that Dallas/Bills game btw was unbelievable.

Various

The Yanks are out quickly again. The Bills made one mistake late (and one earlier ... punt the ball before the half, don't let them get a field goal shot), erasing all the good ... onside kick, winning field goal (twice -- first was called back because of a time out call) from 53 YD out. So, they hurt the Jets, but did not follow-up by helping the Giants. The Jane Austen Book Club might be a chick flick, but it was an enjoyable one. The nice chicks didn't hurt.

Oh Well. Go Rockies!!!

You think the weather we are having is hot? Nothing next to those guys. The Cubs reminded me of the first time they came to the playoffs in recent years, as a wild card, and the Braves quickly done them in. Anyway, 100 years (1908-2008) ... well, that is a nice round number. And, Lou is right ... let's make sure this is but the first time. The Mets, however, showed nothing is assured even when it should be. Let's see how the AL leaders do.

Perils of Outsourcing Force

Baseball:All four match-ups in the first round, in part thanks to a midge attack that led Joba Chamberlain to go wild and give up the tying run (giving Carmona a nine inning no decision), are 2-0 affairs. One assumes at least one or two will go on after today and tomorrow, but this is a bit upsetting (except for the Rockies/Phillies match-up) and I reckon rather notable. As my comment suggests, "upsetting" to the degree you are a baseball fan or a fan of one of the teams in trouble.

A Salon piece by an expert on military contractors underlines the dangers of overuse of the practice, suggesting it seems that it is at heart a structural problem. Surely, the parties in place now does not help, as shown by the fact that there are remedies to contractor malfeasance that this bunch simply has chose not to attempt to use. This underlines that who is in charge matters. All the same, the use of private forces ("mercenaries" apparently is inappropriate to the head of Blackwater since Americans are in charge of provide private forces to Americans; I assume then the Declaration of Independence was basically redundant for referencing "foreign" mercenaries) inherently will not have the same overall mindset as use of the military and other public resources.

Private forces have a sort of one track mind, being paid for a job (protection of coalition forces), while public forces have various concerns. Thus, the article notes how Blackwater is quite successful apparently (I have not read deeply on the matter, so it's useful to hedge) at its general mission, but this does not mean we as a whole should be pleased. After all, it's ugly American heavy-handed tactics (speeding along recklessly, etc.) hurts our general mission of a political solution, and overall, the desire to win the proverbial hearts and minds. The response to the murder of the four contractors also is covered, the net result being that protecting contractors (a tad ironic given their security role) set back this mission severely, ruining some good that was done in the process.

This is the sort of thing that suggests why certain things should not be in private hands. There is a reason, and it isn't just a matter of resources [and on a cost/benefit ratio alone our use of private military contractors is very dubious], why the police is not a private entity. The growth of a private prison industry suggests the limits of this statement, but the basic truth stands. Likewise, the dangers of having a basic human need -- health care -- so reliant on private insurance companies.* OTOH, certain institutions, like religion and the media, should not be government run ... and regulations should be looked upon with special concern. Certain sorts are so concerned about the Second Amendment, but often overlook that a core concern there was the "militia." Or, ignore that this was not just a matter of private citizens owning guns, but an armed citizenry that in various cases was used a public resource.

The fact this is overlooked is not too surprising ... just look at the utter failure of congressional use of their powers (especially of the purse) to chain the dogs of war. Thus, we had YET ANOTHER funding bill approved ... I am wary of giving money to beggars, since I do not know what how they will use the money (or I fear that I know too well). This is a bit much, since many are in need and charity often is a dubious enterprise. All the same, I rather on some level give money to a crack whore than this bunch. My "you won't use this for drugs, right" will also be about as useful as congressional concerns as well and the assurances publicly made in response.

But, I partially digress. The point is that we were told that ... get this ... even the professional military was to be looked upon with a guarded eye. Recall, they had in mind British regulars. Now, some are concerned with flag pins. [Link in effect seconds John Dean's sentiments that Republicans currently cannot be trusted with the federal government ... some still fail to grasp the point.] If the professional military is dangerous, and yes they are -- like fire, this does not mean they are necessarily bad in a given situation -- how about private paramilitary forces? The article also notes that the use of private forces allows us to go into affairs that we probably should not ... sort of the recklessness a second or third credit card might wrought.

[John Dean in his latest book noted that though Truman did not get a congressional declaration of war, he had their support for Korea. But, the delay and institutional requirements necessary for such a declaration matters even with some overall leaning.]

We should be concerned with properly regulating private military forces and with particular ones like Blackwater. But, this only touches upon the tip of the iceberg. Ultimately, it is a matter of public responsibility, including -- yet again -- delegating to others a job we do not want to do ourselves. "We" in part meaning the military, perhaps augmented by a draft (backdoor or otherwise) to fill the numbers needed for jobs traditionally done and/or better not done by private forces.

If we rather not use our resources, both monetary and personal, in this fashion, perhaps the enterprise itself is ill advised.

---

* Clown in chief used his fourth veto [perhaps to our benefit] to target a program to help children -- when House Republicans were on C-SPAN supporting him, I didn't hear a mention of Orin Hatch and other Senate Republicans (sadly, this time, House Republicans are blocking a majority measure, a veto override a problem in that body) who disagreed -- because he trusts the private sector. Just like in let's say retirement funds.

In a fashion, since he doesn't want to ban it there, I guess also stem cell research (two other vetoes, the other one against a lame Democratic move against Bush in Iraq). Apparently, it's okay when private forces hurt the American public. It's not the government, at least! Some, like Thom Hartman on Air America, overdo ire against corporations, while admitting we should not just do away with them. In truth, a healthy distrust of both government and corporations is useful, but also a realization that both have their place in our lives.

John Dean's Book and the Judicial Review

Baseball: Rockies up 2-0, Yanks start off badly, Cubs in (more) trouble and Ron Darling (Mets announcer) is doing the analysis, so you do have that Mets connection. Oh, and Red Sox had a good first game. Watch out for those Diamondbacks ... lethal.

John Dean's essay today suggests the theme of his new book, which I referenced recently. He knows the system from the inside, educated himself some more (his easy going style often goes first person, showing us his thought processes in a down to earth sort of way, though in interviews he can come off as a bit of a know it all) and supplies a good brief on the problems with his former party. Dean lays it on a bit too thick at times, but with these people -- he quotes another Republican insider who shares his sentiment the party simply cannot be trusted to govern on the national level* -- you cannot go too wrong.

His section of the federal courts centers on the nomination process since Nixon. The book does not supply an in depth look, but does note that Ford and Clinton in particular did not politicize the process. The attempt by some to equalize ignores the fact, but Republican presidents have used ideology as a whole more than Democrats here -- the Dems were more responsive, and still most nominations were confirmed. Emphasis is also supplied to the Nixon years (blocking Fortas in particular), Bork (the victimization complex when in fact he had defenders and lost on the merits) and Thomas (facts go Hill's way, down to the fact he did watch porn movies).**

I also by chance glanced at a book on influences to the Constitution in a book store and noticed a reference to the first state statute overturned by federal constitutional review ... in 1792. Marbury v. Madison is often spoken as the case that "invented" or "first" applied judicial review, but this is only true if we are concerned with the Supremes and federal legislation. In fact, though the record in murky, some think that they in fact might have did so even there as applied to a law that had federal judges try veteran claims but allowed an executive officer have the final say ... not a higher court.

The law, as noted by Marbury itself, was clearly declared "unconstitutional" by lower federal court judges:

It must be well recollected that in 1792 an act passed, directing the secretary at war to place on the pension list such disabled officers and soldiers as should be reported to him by the circuit courts, which act, so far as the duty was imposed on the courts, was deemed unconstitutional; but some of the judges, thinking that the law might be executed by them in the character of commissioners, proceeded to act and to report in that character.

Such was not an anomaly. Before the "first" case of judicial review, several state laws were struck down by federal courts, once by the Supreme Court itself. Likewise, the federal carriage tax was upheld, but the Court clearly had the power to declare it unconstitutional. Madison in fact thought a major value of the Bill of Rights, in a broad sense including those rights and limits on powers found in the original Constitution such as rules on "direct taxes," was that independent federal courts would in particular secure them. And, various justices in the 1790s in rulings and elsewhere took the Madison/Hamilton view that judicial review was appropriate in various cases. See, e.g., Seriatim: The Supreme Court Before John Marshall.

[Charles Beard, the constitutional scholar, also supplied evidence in his well known 1912 essay on the subject of judicial review, by one account originally starting with the sentiment that the practice was constitutionally dubious. But, some sentiments expressed these days suggest the lesson haven't quite sunk in even now.]

It is quite unfortunate that this preview of sorts is so unknown, even elided over by some major discussions of judicial review. One can argue that declaring state laws unconstitutional is not the same thing as doing so for a co-equal branch, though the carriage tax and pension cases (where single justices on circuit refused to carry out their statutory duties on constitutional grounds) underline even there we have precedents. But, overall the state cases adds important insights on how 1803 was not quite as revolutionary as some suggest. And, acceptance of the very concept of constitutional review was quite noticeable.

Toss it in the "people should be more informed" pile.


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* Various instances, such as the electoral officials in Florida and Ohio in key elections, suggests state Republicans leave something to be desired. Nonetheless, given the number of states, I doubt they all are bad. I have not seen much discussion of state officials as a whole.

** Again, good notes as well, some extended asides that are worthwhile reading.

First Tuesday in October ... Looking In

And Also: John Dean's latest on the broken government of the Republicans in the recent years is good so far ... I'm through one branch and some interesting appendixes (and notes). He notes the importance of process -- like a credible legislative process when drawing up FISA amendments, even if you pass the damn bill. Meanwhile, Anita Hill has an op-ed in the NYT today defending herself vs. Justice Thomas. I'm inclined to trust her more ... this would mean T. is a hypocrite. Ah well, Jesus knew a thing or two about hypocrites a bit sanctimonious about morals ... and the law.

The Padres manager said that the guy looked safe ... well, I'm with the announcers etc. ... if he was, it wasn't by much. But, it's not like it's going to change anything. The guy is not going to overturn his call and the other umps will not either -- they surely didn't have a better view of the play at the plate that ended the game. So, he said the right thing, and received a bit of respect in the process. The guy who was "safe" noted upon being asked that the ump called him safe. He didn't know if he was. It didn't matter really, did it?

You know, as to who advances to play the "best team in the NL East." [to paraphrase some boaster] The Mets had problems since June, but they didn't kick in until the end, since (1) they didn't play as bad as they did recently and (2) their competition let them stay ahead. Really, they should have been knocked out of First Place in June, but the Braves are average (still over .500, making them credible in the NL) and the Phillies inconsistent. Their upswing -- and it took all their wins against the Mets to make it count (plus help) -- in a fashion came too late for the Mets. And, even there, the Mets thought they escaped, since the first sweep was followed by a Mets upswing, and the second took so long ... with subpar teams in front of them at the end.

After all, at least the Padres got beat by the likes of the Brewers and the Rockies to finish things (or them) off. The Mets put out an apology to their fans. The NY Post doesn't think Glavine etc. are upset enough. The guy from the NYT is upset at the possibility that the manager is at risk. The team was imperfect and all. You know, since a manager has no influence on a team, even to the degree of affecting a single win.* The rapid decline -- like some kind of freefall amusement park ride -- is a consequence of problems (Pedro couldn't start an essential game because he needed rest, El Duque was only available -- weakly -- near the very end etc.) not his fault.

But, Willie Randolph surely has some of the blame for the collapse against the likes of the Nats and Marlins ... just too many losses. The complacency and other problems (what happened to Reyes? not just at bat) is a team effort. The last game was as well. The bullpen gave up one run after that first inning, which ended 7-1. In 1999, against the Braves, the Mets fought back from a 5-0 deficit in a playoff elimination game ... they lost, but they did so by blowing a late lead. In 1996, with Willie as a coach, the Yanks came back from a 6-0 second inning deficit already down 2-1 in the World Series. Here, the Mets ... who clearly had given up ... got nothing. And, Willis left in less than three innings. He wasn't 100%, and obviously, the Mets appeared dead in the water.

So, why risk it? Watch out for the fan putting too much emotion into the team ... why risk it, right? The Rockies fans will get at least one home game during the Wild Card round ... if they are anywhere as enthusiastic as they were yesterday (sometimes those tiebreakers to determine field do matter, huh?) , that should be something to see. Rockies/Cubs Championship round, anyone? After all, the Rockies can actually lose two games now and still win. Don't let the room to spare go to your heads now!

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* They do affect a few wins, which in various cases might be what makes or breaks ya. For instance, Seattle had a freefall, where they won even less in two weeks than the Mets did. A few wins might have let them survive. Maybe not, but such things matter. The collapse should too. What will it wrought? Bye to Glavine, who might not be a full inning [season ... but, after Sunday, who knows?] pitcher anymore, seems predictable.

We shall see ... since I still have last October (1999 isn't totally gone) in my mind, the "let's just start anew" strategy won't quite work for me personally. I think a bit of a sore wound would be nice for them too. Not enough to have a complex, but enough to be hungry and never complacent. One would think they would be those things ... but assuming could be a bad idea.