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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Sunday, March 30, 2008

Bill Gallo

A Wrong Way To Argue A Modified Constitutional Right To Prostitution

And Also: I recently re-watched Shut Up & Sing (Dixie Chicks documentary) and The Jane Austen Book Club (enjoyable chick flick; the opening montage is particularly nifty ... and, the women are nice on the eyes). It is striking how one comment mattered so much, though the doc is also a nice general behind the scenes look at their lives (babies and all) and touring. Their ability to deal with such a drop of from core country fans also underlines a complexity to their careers, a "new path" that perhaps was not fully examined here. Nice doc from an Academy Award winner overall.

Professor Paulsen, in a probable dig to the "right to privacy" overall, and Lawrence v. Texas in particular, produced a mock opinion (with "Justice Clinton" in the majority) extending the principle to the right to solicit a prostitute. His conservative views and strong distaste of Roe (on moral grounds in particular) along with that sly Clinton reference suggests we cannot take it on face value alone. Still, and some comments said as much, a neutral reply can suggest some problems with the "ruling."*

OTOH, ditto, it is not out of the range of possibility that this is a fair application of the general principle, even though not Lawrence in particular. This is shown by a late comment that referenced a state case (State of Hawaii v. Romano) involving an undercover officer who solicited a handjob (the bj request rejected ... see the opinions for the details) from a woman advertising massage services. The majority rejected her various claims, including that the right to privacy was involved. The dissent argued both federal and state constitutional protections go the other way. The majority is correct in finding the dissent lame.

First and foremost, the dissent takes the approach that a principled reading of Lawrence would apply the right to sexual privacy to prostitution. In effect, a totally consistent "slippery slope" approach would not provide the slew of exceptions, including prostitution, and references Scalia's dissent (referencing dissents is a big red flag) to say as much. The majority is fully correct in noting that this doesn't work. Lines are always drawn, however wrongly; that is how things work. Some find this a hard concept to understand, especially in this area, but others find it rather simple.

Life is not full of too many absolutes. A small break of technical rules at work does not give you a pass to do anything at all. Talking at the dinner table does not mean you can say anything. And so on. Such is also the case in law. For example, you can own obscene materials, but not necessarily purchase them. This quite arguably is problematic in many respects, but the core right here is privacy. On some level, it does make sense that prosecution for home ownership (and use) should be particularly a problem.

And, the majority cites various reasons -- including long practice, international opinion** and particular interests involved -- why prostitution in particular is different. Likewise, it notes that Lawrence concerns a certain act. Thus, yes, some opinions protect the purchase of contraceptives and abortion services, but these are things particularly one needs to buy. An argument can be made that sometimes you need to buy sex, but it just is not on the same level -- sexual relationships are much easier to do "at home" than medical services and contraceptives (at least ones that work well). Other issues, including safety, also underline the differences.

Arguments can go the other way, surely, but it simply is not as "obvious" as the dissent makes it out to be. Furthermore, the dissent tries to interpret to citation in Lawrence of "prostitution" narrowly. The opinion protects private activity, so the sensible interpretation is "public" prostitution. Thus, Spitzer isn't really protected here, since "escort services" and those that generally advertise publicly are not private. In effect, you need "veiled" (to cite the majority) ads that in effect hint at what might be involved. Then, you can ask directly in private, and it is not really "prostitution" as enumerated in Lawrence. Too cute. In particular, Lawrence speaks of "public conduct or prostitution" and conduct for which persons "might be injured or coerced."

So, the dissent cannot rely on federal precedent alone or some general principle of "logical conclusions," the latter not even really applied by the dissent itself. Why shouldn't escort services be protected? Abortion services are advertised. It is reasonable to suggest that lines can be drawn here as well, though prostitution services arising from veiled advertising (or, word of mouth or whatever lead to the sting operation to target this place in particular) is a pretty weak one to draw. Targeting streetwalkers but not more discreet services makes much more sense -- akin to zoning laws and the like that regulate porn theaters and sex shows.

The basic sentiment that some right to privacy, especially those explicitly found in state constitutions interpreted to cover more ground than the federal one is not out of the range of possibility, surely. And, the number of regulated sex businesses suggests it can be a somewhat narrowly drawn right. Maybe, "handjobs" are okay, but not penetration. Live nude shows in booths, but not sex shows. Certain types of sexually themed S&M or other fetish services, which very well might be thought as "sex" with limits. Porn is not the only sexually related thing that hits to an important (and private) need that sometimes might need to be purchased to be truly honored in practice. The lines might be inexact, but sensible. Disputes over where to draw them will arise, but what else is new?

It is best, however, to do so in better reasoned (and honest) opinions than this dissent.


* I do not really read much conservative materials directly, so welcome chances where I can view such sentiments, though I do find a careful reading of indirect comments (by both neutral and critical leaning sources) can be quite useful. Imperfect approach, but doing so carefully can lead to fairly acceptable results.

This is particularly the case since I find that things tend to be complex, leading me pretty regularly to disagree with those who basically share my general sentiments (the feeling is surely mutual). Sometimes, the "other side" is basically on a different wavelength, arguing from premises I find wrong-minded. It is important to keep that in mind, but even so, we should not just focus on that. Try to argue on their level, so to speak too, and the results can be fruitful. In particular, I find a respectful reply can lead to respect in return, including from those more on your side but who don't like "knee-jerk" sentiments.

** I am reading an interesting book on religious freedom that referenced the philosophy in the 18th Century of the "cosmopolitan" person, someone whose ethics and dignity arises not from a particular religion or ethnic group as such, but by their humanity. This underlines the value in examining the views of other nations in some fashion, disdain of some for "international law" aside, in legal opinions and so forth. Basic sentiments that underline our system is in some ways surely American, but in others based on broader principles for which the experiences of others can provide some guidance.

Saturday, March 29, 2008

Democratic Primary Process -- EC Has A Point?

And Also: The NY Daily News has good entertainment/sports coverage, comics and a decent (for a local paper) coverage of general news, while its editorial content is somewhat less ideal. It is however still a tabloid, as shown by its heavy emphasis on bimbo coverage of late (lots of bimbo pictures on the cover), though prostitute/adultery news has opened the door. Still, an article on Yankee outfielder Matsui's surprise marriage that tossed (sneaked?) in a comment about "his large collection of porn films" is a bit much.

Certain progressive leaning blogs such as Talking Points Memo and Obsidian Wings have started to voice the sentiment that Clinton is starting to look desperate, has little chance of winning (Slate has a Clinton Death Watch feature), and her only path appears to be close to reckless attacks on Obama that is simply bad for the party (or simply bad). When Joe Conanson, past assurances of neutrality aside (hey, I sorta criticized her last summer about something! meanwhile, I had two columns concerned about Obama ... equal time!), joins the party ... well, some tipping point has arrived.

TPM has joined in on ridicule, this time sadly in respect to its hero Bill Clinton, on the attempt to spin things to show how really she is pretty close to tied to Obama. You know, by not counting caucus states, or states she didn't lose, or maybe Michigan and Florida (this doesn't quite work, since recent polls have Michigan about split). Not counting touchdowns, the Giants/Pats were tied at the end of the Super Bowl etc. This deserves our scorn -- if she was ahead, her campaign would not be doing this shit. Furthermore, Obama won a few states that will be key swing states in the Fall. The Kerry/Gore barely win approach didn't quite work well in winning "big" states alone.

Balkinization has had a few entries on how the means used to select candidates matter. The Republicans, for instance, have a winner take all method that allowed McCain to win at a quicker rate. This reflects the Electoral College technique used in all but two states, something not compelled by the Constitution, and not even how it was expected to be done originally either. The winner take all system would have helped Hillary Clinton, given how she would have picked up various big states. But, how things played out -- not just because I like the candidate better -- is a better approach. [As to those two states, a few more are experimenting with another interesting approach, that is addressed here.]

In fact, to the degree it took an interest in voters throughout the country, it underlines the value of not just relying on national popular vote as well. The key, however, is that there was not a winner take all system -- this underlines that it is not just the EC approach alone that is the problem. In fact, when you think about it, if two candidates split 51/49 (even a bit more of a spread), but one has more broad based support, a decent argument can be made that the latter person is a better bet. The problem with the EC in practice is at least two-fold -- winner take all systems skewer results, plus it tends to be that certain candidates dominate some part of the country. The Blue/Red concept; the Election of 1860 -- one where the EC surely could have helped -- underlines the point.

There is a corresponding argument that people who say "if x loses, I won't support y in November" are idiots. TPM overdid this argument though if they ignore the significant problems the HC brings to the table -- iow, the sentiment you can't be a baby is one thing, let's not try to argue that at the end of the day there's basically not a dime's worth of difference between the two Democrats. TPM got a bit of backlash from some who thought he was leaning that way, had a follow-up post clarifying the point and later comments basically underline the point. A vote for HC will simply put be something of a nose holding deal -- she has even tainted her Senate career here.

Some will say that about Obama, while others will have a range of enthusiasm for the guy, but it does seem that the net would go his way -- especially in certain important states, more will feel comfortable with this "second" choice. Anyway, let me end on a Samantha Power note, since she was on yesterday's repeat of The Colbert Report (where she said Clinton isn't a monster and there are three strong candidates out there ... hmm) and I also saw her on C-SPAN (with the author of Reading Lolita in Iran, which I couldn't get into) promoting her new book. Eric Alterman has a good piece on how she was treated as a sacrificial lamb and the crude way it went down.

Is it baseball season yet? Almost. All these preseason games accessible by tv/radio -- two more last night, one on WGN -- basically have made baseball a March to October deal, with a few games in February and even November (if the World Series is extended) as well. Toss in all the trade and steroid talk, it is as if we really didn't have a break. Not that this is a totally bad thing.

Thursday, March 27, 2008

Finding Iris Chang

Finding Iris Chang: Friendship, Ambition, and the Loss of an Extraordinary Mind by Paula Kamen is a rather personal memoir of Kamen's search into what happened to her friend, who committed suicide in what appeared to be the midst of a wonderful life (success, beauty, hubby, young child) and career (e.g., The Rape of Nanking). We not only learn a lot about Chang (a complex character, well fleshed out here) and mental illness, but some about Kamen and how she went about "finding" Chang the best she could. This results in a rich book that provides many strands. The insight on the process particularly adds something.

Obama/McCain Quickies

Someone in the media (last links) actually listened to and summarized the two main speeches that got Rev. Wright in trouble. The result provides a complex look that still is troubling, but in part because he is right enough to trouble. This should have been done ALL OVER, but that's too much to ask these days. Nice words on a "decent respect for the opinion of mankind" McCain, but consistent support of Bush etc. makes them thin ones.

Wednesday, March 26, 2008

Baseball Season Begins

First game of the season, extra innings, after the As closer blew a save. As/Red Sox split the two game series. The guys over at Daily News Live (SNY, the Mets network) noted the Yanks have an edge pitching-wise because of the back-end of their bullpen. But, one noted that you can't rely on relievers (Mariano aside) year to year. For some reason, however, Joba -- who we saw for a 1/2 year so far -- will be a lock. Aggrh! To add insult, the front-end of the Yanks pen is surely iffy, probably more so than the Mets. Of course, the Mets hitting is iffy too.

Selective Concern For Sovereign Power

And Also: Arranged is one of those charming films that you sometimes are lucky enough to find at the video store or library. It concerns two young NYC public school teachers, an Orthodox Jew (who assists a visually impaired child) and a Muslim whose father is from Syria, who wears a head scarf. They are both independent minded women who honor conservative leaning religious traditions and are in the midst of being pushed to get married. In effect, quite a like, if different religions. Good leads with a superior supporting cast as well, including a religiously bigoted "enlightened" principal.

Dahlia Lithwick wrote an account of the oral argument to a case involving two American citizens (but they have Middle Eastern sounding names, so it's different*) in custody in Iraq -- the United States has practical control over them, while others have technical control. They sought habeas protection in U.S. courts and the lawyer for the U.S. government counseled respect for the local sovereign. In Iraq, as elsewhere, we have somewhat selective views about that.

Ditto when President Bush required Texas to follow an international body's ruling as to our treaty obligations for foreign prisoners, but then announced that from that moment forward (treaty obligation be damned) the administration would not honor obligations of that sort. Thus, when the Supremes decided 6-3 (Stevens somewhat more cautiously) that he couldn't do that -- the treaty did not require it, since it was not "self-executing" (treaties aren't quite the law of the land after all without more), and he didn't have the power to interfere with state authority in this fashion.

This lead me to reply to a comment by DL thusly, which with a bit more, can serve as my response to this ruling. I start with the relevant quote:
Garre asks the court to respect the determination of the executive branch and the "justice systems of other sovereign nations." Priceless.

Today's not really the day to ask for the Court "to respect the determination of the executive branch" though the part about "justice systems of other sovereign nations" is a better bet, if you replace it with "sovereign states" as in Texas.

The Supremes, surely to some people's (on both sides of the question) surprise,** decided today that President Bush cannot require Texas follow an international tribunal's ruling involving our government(s) treaty obligations to inform prisoners of their rights to contact their countries when put in custody.

Given fears Alito and Roberts would give the executive too much power, there is a certain irony here. On some level, we can be satisfied that a basic principle is upheld here -- even if we reject its application -- that the executive is not always right. This Court surely has competing interests, for instance, executive power vs. concern for international law / support of local discretion. Still a footnote noted among those treaties that lower courts held needed congressional legislation to give them practical teeth (i.e., "non-self executing") was one:
holding that the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is non-self-executing);

The practical harm to the President (at least this one) is therefore unclear. The Bush Administration after holding Texas responsible in this case made it clear that it would not longer respect the holding, by a body we agreed to honor, requiring the treatment of non-citizen prisoners at issue here. And, they surely aren't too gung ho about delaying the execution and/or final judgment as to the prison sentences of convicted murderers and the like. The ruling does suggest limits on executive power (though, in partial answer to Breyer's concerns, the majority seems to leave some loopholes for special situations), but international law is the victim.

Justice Breyer explains why the dissenters think the treaty at issue was already the "law of the land," and did not need further congressional enabling legislation require the state to enforce it. The Supremacy Clause explains for those who miss it -- Breyer pointing to originalist laden examples back to the 1790s -- how treaties are not just agreements between nations. They are the "law of the land" per domestic law, and clearly sometimes provide individuals certain rights, not just some moral obligation for which only foreign policy pressures can uphold. Stevens' concurrence underlines some doubt on the particulars, but perhaps it also underlines how we do not have any fully consistent liberals on the Court.**

[It is not defended on these terms, but also, I would suggest that given the fact that the treaty provision affects the rights of those in custody, there is a due process aspect to all of this. I think the Due Process Clause probably can be interpreted to require the notification at issue here as well as some means to remediate its deprivation. If so, a treaty that can fairly be interpreted to secure the same thing only underlines the correct path. More ways -- see, e.g., aim for the sky legislation that needs funding -- to claim to be doing something while being able to not do it is bad enough without this added wrinkle.]

The Administration was more concerned about having free reign -- Breyer's dissent could very well at times restrain their discretion. It probably wasn't really a big fan, esp. since Breyer mostly was agnostic about the issue of executive discretion, relying on more general law of the land/treaty issues. He also voiced realistic matters such as the problems with passing enabling legislation in certain instances, perhaps explaining why treaties were declared the "law of the land" in particular. Breyer also showed how reference to foreign law is quite relevant to interpreting our Constitution, including how some countries (like the United Kingdom) do not have such a rule, while others do.

Anyway, other sovereigns went to an international body we agreed to respect, said body held against the U.S., but the Supremes decided it didn't matter. Thus, "justice systems of other sovereign nations" did not really win out today. The justice system of sovereign states did, I guess.


* One is "a dual U.S.-Iraqi citizen with a noncitizen wife and three small U.S.-citizen kids" while the other is "a dual U.S.-Jordanian citizen, married to a U.S. citizen, with six American children. He served in the Minnesota National Guard."

** The sentiment was that a 5-4 ruling would give them another hearing to determine if the deprivation of contacting their consulates mattered enough, partially since such a principle would likely not really have much practical effect. This was deemed like something that would be seen as attractive to Justice Kennedy, someone who is getting attacked from all sides these days.

Update: A positive spin on the concurrence, which in part asks states to respect treaty obligations even if they are not compelled to do so by specific enabling legislation, can be found here. I find it suspect ... for one thing, if "Medellin's lack of consular notice" was so meaningless, why have the obligation in the first place? And, the failure of certain states to take Stevens' advice ala those Breyer referenced in his dissent when English creditors were involved, suggests the problem with that tack.

Sunday, March 23, 2008

Heller Orals

And Also: A belated Happy Easter. Easter is filled with time-old symbolism like rabbits and eggs that underlines it goes beyond its Christian origins (as does its very name, one that quite literally arises from "east," as in where the sun rises ... yes, that sounds Christian, but then again, the resurrection is a story that didn't just pop up in the first century C.E.). Anyway, on one of those elevator news screens I saw a picture today of President Bush next to a giant bunny. Calling Jimmy Stewart.

I listened to the Heller gun case oral argument online. We are supplied with the audio, transcript and a sort of running closed captioning, so we can follow the audio in real time. Finally, we get a still photo of the person talking. The website has the same, though transcripts and cc are a more recent deal, for many past cases as well. There are some exceptions, including some important historical cases, such as Doe v. Bolton (the companion case to Roe). We should get this sort of thing on a consistent basis, not for only a selective view cases that if anything provide a misleading view of the typical docket.

The argument is rather straightforward and perfectly understandable on a general basis to the non-lawyer. A few matters, such as discussions of level of scrutiny (deemed largely irrelevant by a few justices, as if such doctrinal devices are not common for a reason -- they provide a means to apply broad rules in a relatively clean fashion), could use some clarification. So, when "reasonable" regulations are referenced, it is useful to note the term can have a special meaning. A meaning that sometimes means that nearly every regulation is allowed. General Clement, by the way, comes off as quite reasonable -- not too surprisingly, a bit too moderate for the likes of Vice President Cheney. All the same, even Heller is open to a lot of regulation.

It is notable how originalist the whole thing was, including Stevens trying to for some reason get benefit from the fact that the individual rights flavored guns provision [previously I phrased it in such a way to imply all the rights were expressed that way; religious conflict, sometimes tinging treasonous noises, made trusting Catholics with guns on the same level problematic] in English Bill of Rights was limited to "Protestants." Yeah ... that is why the Second Amendment was sure to say a right of "the people" is involved. English origins provide an important insight at what is at stake, but we tend to have more liberal/libertarian readings. For instance, the original freedom of speech focused on limits against prior restraints. We go much further than that.

Anyway, this focus on the Second Amendment continues to bother me, since personal self-defense is best seen as going further than its primary focus. Justice Scalia made a related point:
It's not at all uncommon for a legislative provision or a constitutional provision to go further than is necessary for the principal purpose involved. The principal purpose here is the militia, but -- but the second clause goes beyond the militia and says the right of the people to keep and bear arms. Now, you may say the kind of arms is colored by the militia. But it speaks of the right of the people. So why not acknowledge that it's -- it's broader than the first clause?

This is interesting. Compare this to Dellinger, here arguing for the District:
But here, I think, when you come down to apply this case, if you look at about five factors, that other weapons are allowed, important regulatory interests of these particularly dangerous weapons are -- is clearly a significant regulatory, and important regulatory, interest. In two respects this is removed from the core of the amendment. Even if it is not limited to militia service, even in the court below, no one doubts that that was, as the court below said, the most salient objective.

So this is in the penumbra or the periphery, not the core. It was undoubtedly aimed principally, if not exclusively, at national legislation which displaced the laws in all of the States, rural as well as urban.

Dellinger's primary argument was that the Second Amendment is a collective rights one, though individuals can make claims if the feds infringe upon their rights as members of the militia in that context. He did try to reassure the justices, though (as the other side noted) an earlier case and (as Alito seemed particularly worried about) the text of the statute (even non-handguns must be unloaded at home) suggests otherwise, that some self-defense security still exists. Thus, ultimately, he only had to justify the handgun ban.

The Chief Justice did not seem to think a complete ban was "reasonable," Scalia concerned the ban -- unlike say plastic guns or machine guns ("assault" weapons were not dealt with even once, even though they were repeatedly major issues of debate in Congress in recent years) -- targeted those commonly used for self-defense. Scalia didn't quite see how his philosophy sounded a bit like a case he isn't a big fan of:
The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.

I think Griswold's reasoning underlines a useful point, and there are various times when it would secure a right that is not clearly suggested by the bare text -- like a fence that protects your home or avoiding those cases when your sibling taunts you, but hey "I'm not touching you" by sticking his/her finger an inch away from your face. So, though a primary focus of "keep and bear" and "arm" is military, but it is not the only one.

And, depriving guns -- even if you would use them only for other reasons -- would hurt the militia function. But, self-defense has other sources, including using said liberty by means of personal ownership of firearms. Anyway, I find the oral argument makes it harder to take this sort of thing, as my comments underline, without some annoyance. Jack Balkin and Sandy Levinson are better than their compatriot here.

Saturday, March 22, 2008

Passport Breaches and Windows Into Broader Issues

And Also: Someone called me recently to check in and see the status of something. It was a token effort, but important all the same since it suggested the said group (no need for details) cared enough to keep track. To threat to go into cliche, sometimes the little things are important, especially when they are lacking.

We are not unaware of the threat to privacy implicit in the accumulation of vast amounts of personal information in computerized data banks or other massive government files. The collection of taxes, the distribution of welfare and social security benefits, the supervision of public health, the direction of our Armed Forces, and the enforcement of the criminal laws all require the orderly preservation of great quantities of information, much of which is personal in character and potentially embarrassing or harmful if disclosed. The right to collect and use such data for public purposes is typically accompanied by a concomitant statutory or regulatory duty to avoid unwarranted disclosures ... in some circumstances, that duty arguably has its roots in the Constitution.

-- Whalen v. Roe (1976)

A person in Patel's book noted that it's useful to have some sort of anchor while having soaring wings -- in this context, some basic beliefs (Catholicism) while being broadly open minded about out traditions (Eastern religions). Reminds also of one of my favorite episode of the old MTV show Daria (the brainy chick from Beavis and Butthead) involving her writing a story. She was having trouble and her English teacher, here giving a chance to have insight though often being a bit of an nudge, suggested a certain plot -- sometimes, restrictions can be helpful.

A bit of order is required to prevent liberty from being license. I'm with that. The well-rounded person is supposed to be read in many traditions and not limiting oneself to any one of them. But, this asks a lot of someone. It is something like the idea you can only remember seven bits of information or something, explaining why telephone numbers are that length. Or, something like that. Thus, it is useful to use something to ground yourself. A certain tradition, which is best one flexible enough to breath a lot of life into it, and bring in a lot of stuff. This works as much with faith texts and constitutions. It also works with source material -- a few good sources can be more informative in some ways than a diverse number that overwhelms you, resulting in less net information.

This is just a bit of personal philosophy, which is part of the reason I find it useful to cite Supreme Court opinions -- they can be seen as tips of the iceberg, and a way to introduce broader contexts. I can cite any number of things as well; after all, I like citing concurring opinions or dissents sometimes too. But, they serve as a comfortable means to examine certain subjects, while realizing they only take us so far. Similarly, I like when certain events or news items can be used to examine broader issues, and not be seen as singular freestanding items. Once you read enough things, this is fairly easy to do, even factoring in overinclusive bias.

Consider how the unauthorized access of candidate records has led some (has our quota of references to recent Glenn Greenwald columns been passed yet today? "what he said" would save time) to point out to the dangers of the national surveillance state. I have a book of essays from the 1960s that already was concerned about the collection of information (both public and private) and how it could be abused. Surely, when Justice Brennan (here concurring) voiced such a concern in the mid-1970s, it was not shocking ... but, and fill in your own desired source, the lesson still has to be reinforced, like a quick review covered in an upper level class:
The central storage and easy accessibility of computerized data vastly increase the potential for abuse of that information, and I am not prepared to say that future developments will not demonstrate the necessity of some curb on such technology.

TPM has a lot of useful reporting on this issue, including reporting a contractor involved.* I'm not sure how much that aspect of the story matters -- someone told me about her job as a telephone operator back in the days where you had a big switchboard and you could easily listen in on calls and she couldn't help herself. This nosiness, and apparently in some fashion it might have been involved here, is universal, and people directly on the government payroll will take part just as indirect ones when the work is contracted out. I was tempted to say "low level" employee, but that is probably at least somewhat unfair -- that is not the only ones who peek for any number of reasons.

And, maybe that is nothing to do with it here, though it might help fill in the details of what really happened (following the money, see who controls the companies, see if there are any other complaints of privacy violation, or is this a "quirky" thing, etc. ... blogs help do such things). Still, to the degree contractors are improperly regulated or in some other fashion bring troubles that might not be as strong when the government doesn't contract the work out, this story points to that as well. Likewise, it underlines the importance of regulating them, especially since the most you subcontract something, the less it has a tendency of being properly scrutinize by those who ultimately control things.

As my aside above suggested, this might ultimately be a small thing, but it does matter.


* Cute trivia tidbit apropos of this blog entry -- one outfit involved is "Stanley Inc.," which calls to mind an important privacy ruling, Stanley v. Georgia.

Obama's Speech on Race (and Religion)

And Also: This is a good discussion of the level of scrutiny of "fundamental" rights with Dilan's comments in the discussion thread of special relevance regarding reasonable regulations that fit into the special context at hand. Gun rights fit into a broader whole, but as with other issues, some (on both sides of the issue) are uncomfortable with such equal time.

[The speech has generally been deemed a "race" speech, but I have just checked the religion blog on my blogroll -- it has yet updated a report on an interesting home schooling case in California -- and its coverage rightly notes it is also a speech about religion. A preacher after all was the proximate cause and religion has an important part both in Obama's life/career as well as the speech itself. The blog's call for discussion and debate, hopefully across the divide, is on the money too. I also reaffirm my endorsement of the Eboo Patel book referenced earlier.]

Let's stop the "greatest speech" business ... that is putting a lot of pressure on the thing. Others can try to defend that claim, with mixed success, but really now -- it is a bit too soon to say that, isn't it? Let it settle some. Plus, it isn't the Gettysburg Address ... we can point out to an imperfect or two and still think it a great speech, if we don't saddle it with too much praise. Anyway, there was various negative reaction, including from a couple of the boobs I'm stuck with seeing in the NY Daily News on a regular basis. I caught a bit of Imus, by chance, and not only did he not like the comment about his grandmother, but the reporter/analyst on was talking as if (yet again) Obama was in trouble. And, one black reporter thought the speech divisive -- he should have gone above race.

I am sick of this "Democrats (or a certain Democrat) are in so much trouble" stuff. Atrios and others make fun of it -- whatever comes down the pike, it hurts Dems, but helps Republicans. We are facing perilous economic times, but McCain himself admits he is weak on that subject (his comments about Iran suggests -- as if we don't know from his Iraq views -- he isn't so strong on foreign policy/military matters either ... Talking Points Memo covered the topic of late). I also am not too strong on fiscal matters; but, hey, I know my limitations. I am not running for president. As to the other matter, the "I'm sorry" brigade over at Slate on Iraq deserved Glenn Greenwald's scorn earlier this week, but it's better than not doing so at all and furthering the wrong.

What him worry? See Media Matters. And, someone (pretty even-handed overall) noted me that his actively supporting Hagee seems the same as Obama getting in trouble for the Nation of Islam's guy on his own supporting Obama. So, why not toss in a speech worthy of respect into the mix? As to his grandmother, damn him for admitting that we are imperfect! We can't criticize the people we care about in any way! We cannot examine our imperfections, reminding us even the best of us have and must face them. It is a struggle sometimes to fit all of the aspects of the problem together, but I do find that things often tend to be pretty inter-connected in some fashion. The "personal is the political" -- our own lives often is a good place to look to face up to issues of the day.

Now, to be fair, Joan Walsh is at least partially right that his use of the grandmother was a bit dubious. He might not have had a suitable sense of perspective, or used an inexact comparison with the added sensitivity of use of a family member. I'm okay with that -- as I said, this "historical" (to use her word) speech was not perfect by any means. Even someone as skillful as he, will have missteps. The idea is to read the speech as a whole and determine if it is on the whole true and powerful, while realizing that our soundbite culture makes choosing words and phrasing very important -- even if the consequences can be blatantly unfair. Overall, I stick by my sentiment -- the basic point that even those we love and respect can be tainted by "x" and his comments that even those who are wrong tend to be guided by real concerns sorta fits that too.

The desire for Obama not to mention race -- race? we are all of the human race -- is a bit much too. Like Justice Blackmun said in Bakke, we need to be race conscious to face the problem. We cannot just ignore the problem and hope it away. We aren't that audacious! We need not all agree how well Obama did it here, thus my desire to stay away from this "best speech ever" business, but a good attempt is appreciated. This also allows for imperfections and possible missteps (see, e.g., his reference to what a common white person might believe -- perilous, if more true than we might like -- phrasing) too. We are imperfect people. Perfection is for gods, and rarely for them at that.

This in part answers those concerned that he stuck by the minister for so long, or even didn't leave the church. Tossing the baby out with the bathwater. They might look at their own lives and churches too. But, to the degree that we aren't dealing with St. Obama, well this former Edwards supporter knew that already. The idea that there is another serious candidate -- other than third party protest candidates (of better quality than Nader) is silly though. McCain? Oh please. Hillary? We have went there already -- she isn't a credible choice any more.* Good thing that Obama still has a lot of good points. Let us not be scared by the "oh no, he's toast, it's President McCain time" ... how f-ing tedious that fraidy-cat tactic gets after awhile. Measured concern, sure. Not quite the same.

Some are upset he did not supply detailed solutions. This is a general concern, though his campaign has the same detailed plans as any -- see his website and so forth. But, on some level, this does miss the point. His overall concern is making it possible to provide solutions, to develop a framework that better allows it. Facing up to the problems, doing so in an intelligent way, and being able to work with diverse groups are all necessary here. The discussion of the problems of race in America is part of the mix -- an eloquent expression of the problems with a deep faith that we have the means to find solutions, while realizing our own limitations. Sure, the details matter -- it helps I support him more than the others on some of them -- but given the limits of the office and the important of the medium (so to speak), only up to a point.

I'll take somewhat imperfect expressions of such sentiments. They are special enough to understand why so many swooned. Glenn Greenwald was right a few days back to be worried too many are too simplistic and knee-jerk to be have a speech that treats us like intelligent adults, but he was right to do it. It's a risk, like trusting anyone (like a parent trusting a child) with responsibility, but you have to do it to obtain success in the end.


* The sleeping girl in HC's infamous 3 A.M. -- now 17 -- has a bit more perspective than some HC supporters. (This one is a bit extreme, but the vitriol and imho unfair attacks ares not totally unrepresentative.) TPM has suggested she has no real chance, but there are enough HC supporters (the "most Dems like each about the same" brigade a bit full of it) with strong feelings against Obama to suggest why it is still -- unfortunately -- going on.

I think the speech might help some wavering superdelegates as will time as we see happened with Bill Richardson, who after all worked in the Clinton Administration.

Thursday, March 20, 2008

Gun Case Raises Usual Canards

And Also: A nod to Feministing for leading me to read Acts of Faith: The Story of an American Muslim, the Struggle for the Soul of a Generation by Eboo Patel. His mission is to promote inter-faith understanding, especially since he sees divisions by faith as perhaps the biggest concern in the 21st Century. Patel favors focusing on the young and has had much success in providing leadership in that field. Clearly a book for the Obama voter!

Unlike Jack Balkin, I did not find Dahlia Lithwick's piece on the gun oral argument good. I found it depressingly lame and predictable (shocker: she doesn't really think too much about an individual right to own a gun). In a follow-up on the new Slate legal blog, she referenced Jack Balkin's appeal to the Framers as to it being a personal right that should be incorporated ala the Fourteenth. This is part of his "hey, I can be liberal and originalist" too kick. It only convinces the convinced -- the Framers probably had a more restrictive view of equal protection (e.g., no social rights) too.

She wasn't sure how that went -- after all, being listed in the Bill of Rights apparently (under current doctrine) isn't enough to make the right fundamental enough to require that. This too is pretty lame, if a claim made repeatedly by people who simply are wrong. What rights aren't incorporated? The Third Amendment never really comes up, though my own appellate circuit logically said it was incorporated (as dicta in Griswold, listing it among privacy rights) when it got a chance. The Excessive Fines Clause might not have been directly dealt with either, but the punitive damage cases alone suggest due process requires that protection.

Civil juries aren't required, but what state doesn't have them, even the few with civil law traditions like Louisiana? That leaves grand juries. And, even there, many states require them for "infamous" crimes, a flexible term anyway (though it grew basically to mean felonies). Of course, though Dahlia's column apparently cluelessly missed the irony by referencing the gun control side as wanting to make gun ownership an "unemerated" second class citizen sort of right without mentioning Griswold, many unemerated rights are incorporated too.*

Given civil juries already are secured, that leaves one right -- which many states secure anyway -- not covered. Oh, and criminal juries are given somewhat more leeway too (no unanimous or twelve person requirement). BFD. And, though the professionalization of the law developed enough by the Fourteenth Amendment to temper it (e.g., judicial nullification was looked at with disfavor by many), the original Framers loved juries (note, however, even then, civil juries were flexible -- the Federalist Papers, for instance, defended Article III's only covering criminal juries by noting the diversity in the states at the time).

Arguably, not incorporating juries is wrong on a simple historical level. Anyway, nothing is perfect. "Selective" incorporation, however, is a misnomer given the reality of the situation. That leaves the Second Amendment. First, dicta in various cases -- including Planned Parenthood v. Casey -- lists it among "personal" rights. Second, if you see it as securing some collective right (power) of states, it really cannot be incorporated -- it is solely a federalist concern. Finally, since nearly every other right was incorporated (citing 19th Century cases in which the Second is not incorporated is cheating -- the First was not incorporated either; the test now is to determine if a fundamental right** is at stake ... can states quarter militia troops in homes since hey the Supremes never dealt with that directly?), you have to explain why gun ownership is unique.

This is a hard sell, especially from a historical p.o.v. (free blacks needed weapons for self-defense). Dahlia is upset that the Supremes are primed to "create" a new right, blatantly politically at that. She apparently thinks because "liberals" and "conservatives" selectively speak of local discretion and such that they are hypocrites. As with her ignoring recent gun rights cases such as Lopez and Printz, this is misleading at best. They just have different views of proper spheres. Overblown judicial restraint rhetoric deserves sarcasm, but putting that aside, what is going on is not too outrageous. It does require a bit more discernment than some have.

As to the "create" new rights deal, how exactly is recognizing something honored as a right for centuries that? Such rights btw aren't "created" by the Constitution. Let me quote Justice Brennan, voicing (for the Court) a too rarely emphasized core American principle that we should honor each 7/4 along with those fireworks:
the liberty interest in family privacy has its source, and its contours are ordinarily to be sought, not in state law, but in intrinsic human rights, as they have been understood in "this Nation's history and tradition."

The right of self-protection, in a personal and communal (militia) sense, are among such time honored rights. It seems to me ill-advised, honestly, to put all your eggs in the 2A basket. The "militia" has a special quality that simple self-defense doesn't have. They overlap, but not totally. Surely, however, it is among those rights honored by our tradition. This includes self-defense by guns, something many debate the contours of, but largely agree in some fashion is a right we should have.

As I said elsewhere, this is one reason why there are so few gun cases -- the core right was not as threatened completely as free speech, equality and privacy has and continues to be in various ways. Anyway, a large majority -- including the far from radical gun rights editorial board of the NY Daily News (counseling caution, but arguing the D.C. law was too extreme) -- thinks there ALREADY is a right to have a weapon for self-defense. It is not being "created."

There is some interesting discussions going on, including by Jack Balkin, concerning this case. But, there also is a lot of tedious blather.


* "The Constitution does not create some kind of sacred, fundamental right to guns. If there's a right here at all, [the advocate for the District] says, it's at the 'penumbra of the periphery' of the Constitution: in a shack behind the river where the other unenumerated rights huddle."

** One comment argues gun ownership is "fundamental" enough to be incorporated but not "fundamental" enough to warrant strict scrutiny ala free speech. The solicitor general also supported intermediate scrutiny. Not all "fundamental" rights are really treated the same, even if they technically are given "strict scrutiny." Thus, even back in the day, abortion and travel was allowed to be more regulated than speech.

The Second Amendment does say "no" as well though. Time, place and manner rules (trigger locks, concealed weapon bans, etc.) can go pretty far -- heck, you might even apply it too urban areas as a whole. And, there are categories of speech that are not protected (libel, obscenity, etc.), so why not certain types of guns?

Finally, to the degree the Second Amendment is militia based, that too would allow some reasonable regulation that is not applicable in the free speech field (which has some of that too -- consider bans on invasive speech and arguably campaign finance laws). And, if personal defense is somewhat separate, it falls among those general liberties that aren't specifically underlined with such forceful "no" language, so might be open to somewhat more regulation.

Direct Democracy In Action

Prof. Hamilton uses a somewhat disruptive protest at a Federalist Society meeting on affirmative action to make some good points. It is notable for her fairness, recognizing that the protest had a point, including per the misleading nature of the ballot measure at hand. She uses it to point to the problems of direct democracy, but in a fashion, underlines its importance (the protests made points dry testimony would not) as well.

Tuesday, March 18, 2008

Happy JP Day!

St. Patrick's Day, the patron day for Irish was yesterday. The lesser known St. Joseph's Day, the patron day not only of I, but Italians generally, is tomorrow. Today is JP Day -- the patron day of Irish/Italian mutts. Mutts, as my young niece (who has still another flavor) underlines, are the best sorts. BTW, as they dealt with guns, Scalia had an interesting dissent today to a case involving a law requiring party labels on ballots. Strong freedom of association language, most often expressed by his co-dissenter, Justice Kennedy. Pretty low key too.


Junebug for which Amy Adams (my newest favorite actress) rightly earned a best supporting actress nod is a pretty good movie. A Southern boy goes back with his new wife to his North Carolina home, leading to a culture clash for his urbane wife. Adams plays his deceptively simple minded sister-in-law. Great line: "God loves you the way you are, but too much to want you to stay that way." Quite useful, including to apply to love of country. The movie has a surprisingly raw sexual component that is but one of many good things about the whole thing. Adams is on the commentary track.

Gun Case

ScotusBlog and Volokh Conspiracy, see blogroll, are two good resources for today's oral argument in the D.C. gun case. Kennedy's pro-individual rights sentiments and Breyer's desire for some middle ground is a plus for the pro gun rights side; I was not sure how strong Kennedy (and all of the new conservatives) be on that point. Volokh's comment on the justices supporting a practical, not strictly originalist, view of the Second Amendment is on point but a bit ironic given the excessive originalist nature of the lower court opinion. See some of my thoughts here. I have not read/listened to the orals yet.

Sunday, March 16, 2008

"The Irrelevance of Obama's Minister"

And Also: iCarly is about two teens who start an website where people can send clips showing their unique talents and such. Cute show with nice acting by the young stars along with the twenty-something older goofball brother. It was created by a member of the show Head of the Class, thus supplying a connection to my generation.

This piece over at TPM Cafe entitled "The Irrelevance of Obama's Minister" is very good as is the excellent extended discussion in the comments in response. I particularly like those targeted to the importance of a "church" to a faith community and a late one comparing his comments to MLK. Those who I disagree with in various ways are as interesting as those I find right on the money. It is a great example of the possibilities of web discussion and free and open debate in general.

Two other things. First, if anything, I honestly would like if Obama in some fashion was sympathetic with some of the angry comments of the minister -- it would show a certain fire at injustice that to me is a good thing. This does not mean to imply that he supports the church largely for its activism in promotion of a more perfect community overall. IOW, what many think should be at the core of the Christian faith and faith/religion in general. It would be a sin, to speak in religious language, to miss the forest for the trees, to ignore all good the "church" (meaning the collective community of the faithful) here does for some harsh words (that some comments are right to suggest are more true than we wish) the minister made. Obama knows this, and more power to him:
As I have written about in my books, I first joined Trinity United Church of Christ nearly twenty years ago. I knew Rev. Wright as someone who served this nation with honor as a United States Marine, as a respected biblical scholar, and as someone who taught or lectured at seminaries across the country, from Union Theological Seminary to the University of Chicago. He also led a diverse congregation that was and still is a pillar of the South Side and the entire city of Chicago. It's a congregation that does not merely preach social justice but acts it out each day, through ministries ranging from housing the homeless to reaching out to those with HIV/AIDS.

His remarks distances Obama from the more angry comments. I said earlier and I say again that I fear Obama goes overboard in this respect. He starts off thusly:
Let me say at the outset that I vehemently disagree and strongly condemn the statements that have been the subject of this controversy. I categorically denounce any statement that disparages our great country or serves to divide us from our allies. I also believe that words that degrade individuals have no place in our public dialogue, whether it's on the campaign stump or in the pulpit. In sum, I reject outright the statements by Rev. Wright that are at issue.

Some in the TPM Cafe comment thread simply don't agree with this sentiment and in some fashion nor do I. A line is drawn here, an important one, that separates disagreement and dissent from "disparaging" individuals and the nation at large. A line that surely was not honored by many biblical prophets and in some fashion, honestly, not Jesus himself. Rev. Wright got in trouble for some angry statements against "whites," the nation and Hillary Clinton. This includes suggesting in some fashion God should censor America for its actions.

A nation that allows the level of injustice that can be enumerated in sickening detail, in particular against groups disproportionately black (but a white/black divide is all too facile, as some note), warrants something of that line. Sometimes, our moral leaders need to call out, in anger too, such injustice. Those who enable it should be disparaged. As late comment noted, Martin Luther King Jr. did that. Anti-slavery activists did it. In some fashion, Goldwater was right -- extremism in promotion of right is not in error. It might be playing with fire and Obama is right to be wary of it. But, honest sorts will realize concern is not just in the tone. Some simply don't want some black preacher calling out this great nation, "our nation right or wrong" their motto.

It is not patriotism to not point out what is wrong with this country. That is not "great" in some ways. We can do that just as we can criticize members of our family and our friends -- they like members of our country are part of us, part of our kith and kin. We get to criticize their flaws, "disparage" them when need be. We must be careful not to go overboard, and maybe it was done here to some degree. Such is the nature of things, as I said. We are sometimes intemperate. To completely reject this, however, is wrong. His dismissal in other words was excessive, but such his frame. It works for him and is politically useful, though as with Samantha Power, it just might be overused sometimes. The perils of politics, perhaps.

Second, comparisons are made to McCain's push to get John Hagee to endorse him. As I discuss in my detail here [particularly my later extended reply*], the problem probably boils down to the selective treatment supplied here. Treatment, as comments on the thread suggest, some refuse to believe exists. Differences also can be noted in respect to the fact that McCain aimed for a political endorsement here while Obama sees Jeremiah Wright more as a religious mentor. This is an important distinction and the fact McCain didn't have a long time relationship with the guy, and the corresponding complicated nuances referenced in the comments, counts as well.

[To toss in another somewhat related issue, I watched Conan O'Brien Friday night (taped it really), and found his bit about crazy stamp series wickedly stupid -- his speciality. This included one about Bush, riffing yet again on him being stupid. This in a twisted sense benefits him -- some like the anti-intellectual flavor. What about more about his recklessness and arrogance? I do note that the last half century has brought a slew of easy to ridicule presidents. We all generally have some exaggerated trait, but these guys had at least one in spades. BTW, the easy riff on McCain is out there too -- he is some grumpy old guy. He'll take that, huh?]

We treat religious beliefs as relevant, however, when we sneer at the beliefs of certain people on the Right. So, this only can take us so far, especially as people miss the (relevant) difference. Thus, it is notable Obama firmly denounced the guy's more divisive comments, underlining politically he doesn't go that way. And, yes, if Obama supported a Hagee sort, I would have deep problems. But, it is doubtful he would be the Democratic nominee, right? We can be upset at the selective and suspiciously timed nature of the controversy. Can we not also use if as a window into a productive debate as well, especially since simplistic use of "value voters" etc. is part of the problem these days?

Maybe, it is relevant after all. How so, well, that's a different question.


* My original comment on the Slate fray that I link here originated when Today's Papers yesterday referenced a LAT article about the Obama/minister issue and noted said article noted how a minister McCain supported said "mean" things about Catholics. This is a lame adjective to describe what the guy really said, but I also tossed in a comment why he was an issue in the first place.

The replies focused on this add-on comment, but (as my later extended reply noted) this does ignore my original concern about how the press reported on the story.

Saturday, March 15, 2008

House Dems Stand Tough

And Also: Those who thought Billy Crystal's one day contract as a Yankee (he struck out in one at bat as lead-off/DH) was somehow a mark against baseball really should calm down. It was a spring training game, for crying out loud, and a perfectly okay bit of fun for a long time fan (he even made a movie about breaking the Babe's record) and friend of the team/owner. Garth Brooks did something similar for two teams, charity involved in that case as well. I'm with BC -- they should do more of this sort of thing.

Why would the Administration oppose a judicial determination of whether the companies already have immunity? There are at least three explanations:

First, the President knows that it was the Administration’s incompetence in failing to follow the procedures in the statute that prevented immunity from being conveyed – that’s one possibility. They simply didn't do it right. Second, the Administration’s legal argument that the surveillance requests were lawfully authorized was wrong; or third, public reports that the surveillance activities undertaken by the companies went far beyond anything about which any Member of Congress was notified, as is required by the law.

None of these alternatives is attractive but they clearly demonstrate why the Administration’s insistence that Congress provide retroactive immunity has never been about national security or about concerns for the companies; it has always been about protecting the Administration.

-- Speaker Nancy Pelosi

On the political front, there is various news to report. First and foremost, the House Democrats actually stood up to the President, getting many of the Blue Dogs in line in the process -- talk about killing two birds with one stone. Showing part of the point of having two branches of Congress, they rejected the amnesty for telecoms (but the most serious flaw) supported by the "bipartisan" Senate side (Republicans and Blue Dogs, thus the quotes are well placed), while getting many of their own blue dogs in line as well. Yes, Virginia, it is possible to do both of these things. The bill either will die in conference or be vetoed, unless the House Dems cave, which is perfectly fine.

The status quo ante works except perhaps the need to tweak things for foreign-to-foreign communication that passes through U.S. routers somehow. Note that the old rule was FISA, a law that (ahem) various conservatives thought outrageous, particularly when Clinton was in charge. Likewise, who would be surprised that after all this blather, the telecoms actually win in court? The House might actually help this -- its provision includes a nifty measure that gets around the blatantly overused "states secrets privilege" to provide the companies means to submit evidence key to their defense. This measure, as well as perhaps pressure from constituents (a special election and primary battle gave a hint of where the blind is blowing), helped many Blue Dogs see the light.

Glen Greenwald and others have the coverage -- he was downright gleeful yesterday, especially since he got a chance to stick his tongue out at critics on the Right. I caught a bit of the floor debate and can only share his disgust at the other side. From claims the non-profits supporting the litigation against the telecoms will somehow get rich from the litigation to bashing concerns about privacy that their side fairly recently was rather worried about to expecting us to trust claims from loyal Bushies that we need to give in to them yet again to stay safe. I have simple disdain for these people.

As with the Hillary/Barack stuff, this will be interpreted by stuff neutrally. Sorry no. I have disgust for one side in general. It's not just some "pox on both your houses" stuff. The whole thing is uneven. Media Matters had a good column yesterday on how only Hillary Clinton is being called on for not submitting her tax records when in fact McCain did not as well. Given his sudden support of Bush's tax cuts, and how they will help him personally (the column also compares treatment of McCain and Edwards per the first John's "cabin" barbecue), this is useful information. To be fair, however, when TPM raised the tax issue, it did not (to my knowledge) point out McCain. So, blame might be passed around.

Anyway, the House vote suggests the "oh no, the all powerful other side is attacking us, so we have to be very very careful, even if we don't really like it" pussy sentiment we see too often these days is not the only way to go. We did see some of that even there -- even while supporting a bill particularly notable for limits on executive power, immunity and guards of privacy, many members lead with assurance that they too knew the world is a scary place, and they too were tough on defense. It was like liberty and such were important, sure, but you know, sort of secondary. I note, especially given the importance of letting the courts decide the telecoms liability, "establish justice" comes first in the Preamble of the Constitution. Still, I commend them for mentioning it.

The pussy issue comes to play with the latest "oh no" moment involving Obama, namely the fact his minister said some crude things. This has some cachet since McCain got in trouble for seeking support from a bigot member of the clergy, eventually saying that he doesn't agree with all the guy says -- a somewhat lukewarm reply overall. The core problem with the sermon is that the minister bashed America, basically for its treatment of blacks. TPM readers had some good replies, including one Orthodox Jew who noted that his rabbi sometimes says offensive things, but selective comments doesn't make him resign in protest. American Catholics, given some of the more distasteful aspects of that faith (e.g., homosexual behavior is a sin), probably can relate. This includes use of hyperbole and intemperate speech, often including at heart true things like how America treated blacks.

But, we do tend not to be totally honest when it comes to religious matters. If we were really honest, we would realize that quite a few of the beliefs -- not just of "them" -- of our fellow citizens are in some way suspect. We can't bash religion (this includes fair criticism in the eyes of too many), can we? Sometimes, things are said in sermons and so forth that are wrong and in fact offensive. The same can be said about friends and family members. It is mightily selective to sudden shudder in horror when we learn that Obama's minister is part of this mix, especially given we know by his acts and rhetoric that Obama does not share the targeted comments. Grow up!

[Obama responds here. Note some of the "oh no!" comments. Those concerned about how he denounced those that "disparaged" the country have a point, of piece of my concerns that he is too concerned about being a unity candidate. It is quite acceptable to criticize the country, including quite strongly, when it fails us. This is not treasonous in any respect. But, playing nice is politically necessary, and his desire to change things is pretty telling. The Hebrews 12:1 cite by a comment is priceless, btw.]

The hope is that Obama is the sort of candidate that can ride past these attacks and let his words and deeds convince the electorate to provide him a majority of the electoral votes later this year. And, not let fear drive him to except the other side's frames and lead him to compromise too much in the process.

Thursday, March 13, 2008

More Eliot News

As to the "stand by your man" quips, if female politician spouses do something embarrassing, do their husbands stay away [see Samantha Bee bit on The Daily Show]? One rather strange footnote on the governor retiring: the lieutenant governor office will be vacant, so the next in line (and acting governor while the soon to be new, and legally blind btw, gov is out of state) is the (Republican) Senate leader, who also now would break ties in that body as well. I still stick with my "he had to resign" opinion, but things like this suggests Glenn Greenwald's post today on things is largely correct. Just a bit besides the point.

Monday, March 10, 2008

Eliot The Reckless Idiot

Yesterday, Glenn Greenwald told people "oh stop it" regarding the response to my governor's moronic behavior while underlining he's not really sympathetic given the guy's past prosecutions. But, the fact it shouldn't be a crime is only part of the point, while hypocrisy and recklessness are the fatal (for him) issues. As the post referenced notes, we should still be worried about the selective/politically motivated prosecution concerns. But, unlike some, that doesn't take him off the hook -- including from going bye bye -- in my book. Meanwhile, good smack-down of HC, Obama.

Sunday, March 09, 2008

Miss Pettigrew Lives for a Day

The last year or so was quite friendly to Philip Seymour Hoffman and Marcia Gay Harden, two actors who deserved their multiple chances to shine. Add Amy Adams, the star of Enchanted (also seen in Charlie Wilson's War in a supporting role) to the mix, someone already nominated for her turn in Junebug. She was a sight to see (along with Frances McDormand) in Miss Pettigrew Lives for a Day, a 1930s farce with a serious edge well reviewed here. Her background in dinner theater serves her well too ... great voice. BTW, here's a more expanded update on FBFW, including the divorce issue.

Saturday, March 08, 2008

Bush Vetoes Anti-Torture Bill

If it "might" be a problem to not allow waterboarding a few times (of course, that isn't the only cruel and inhumane treatment used) wouldn't it also "might" be a (practical or otherwise) problem to send a [veto] message that we support something even he appears to think [stop laughing] should only be used rarely? Canada and others seem to think so, but hey, you saw how Obama got in trouble talking with them. Oh, btw, McCain was no big fan of this bill either, suddenly talking small on torture. Not to suggest he's a phony or anything. He's Clinton's BFF, right?

Samantha Power Resigns But Is Not That Off Base

And Also: The Narrow Margin (the original; the remake was not bad either) is a good film noir and its nice they have the director of The French Connection etc. on the commentary track with the actual director adding some remarks from some interview. BTW, the remake omits the surprise, which is a whopper, though it sorta just lies there. [see comments at imdb site too] Not quite happy with it, so not upset they took it out. A chance to rent such DVDs is more evidence libraries are not a bad little resource.

Let's get the standard stuff out of the way, the stuff that some ["morons" seems intemperate; might have to resign] appear to think has to be tossed in there since they think we are stupid. Calling HC a "monster" to a reporter was stupid, and you can't do that. That's reality. I don't want John McCain as President and won't vote for him in November. If there was any chance a state was close, taking the risk of it going to him is a very bad idea. [But, Nader is a joke by now, and is not a threat in that department.] And, HC is not on par with him, bottom line. It won't be the end of the world or close to it if she became President and some good things will happen if she did.

But, I don't like her. First, the whole thing annoys me. Let's take the bottom line here. Samantha Power is a smart cookie who fights the good fight, but got in trouble with her outspoken side. I don't find that side a negative, though in politics you have to be careful. Fine enough. She blurted out something to a reporter after the stress of a significant Ohio loss (that delegate-wise, really wasn't, but as in sports, letting people stick around -- even if they still have a deficit -- is trouble) and that was dumb. As TPM noted, we can be upset about the injustice of it all, and still know how life works.

But, so sorry, it was also human. Is "new type of politics" supposed to ignore this? Are we to fire everyone who does a dumb thing just to show we are different? Some wonder if firing was necessary, but even if it was, it is damn annoying. It also rankles. HC is a hypocrite and so are her supporters if they take this so far. "Monster?" How about the candidate herself saying the Republican nominee is more qualified (while exaggerating her own) than the current Democratic frontrunner?* How about her husband comparing a win in SC to Jesse Jackson's win there? How about a top aide comparing Obama to Ken Starr? One can go on.

[So, in effect, fire Power not because she was wrong, but because she says a bad word. GG is right, basically -- it's not the reporter's fault that the forest is missed for the trees by a few too many people. This doesn't mean the reporter should be praised or anything.]

Clintonites must be salivating ... of course, doing well by bashing the right wing conspiracy didn't help too well in 2000 (except for maybe Sen. Clinton), did it?. This underlines that -- some of the reality community wishing it away not making it so -- some simply don't like the two candidates basically the same, with some small extra support on one side. TalkLeft has had a continual stream of anti-Obama posts. Tiring stuff, but hey, equal time. Is TPM called Clinton on the "experience" stuff and how she is getting a pass part of those mean male bloggers missing reality too? See various here on the other side, clearly having enough. Rachel Maddow earlier in the week wanted the fight to end somehow, she didn't care how. Yeah, this anti-war sort simply doesn't care who's President, even if one candidate actually opposed the war when it counted. Stop it.

Admit it ... one side is worse here. She and her crew are doing a few too many things that are just a wee bit desperate, and bad for the party in general. The thing for Obama to do is keep an eye on the ball, let people pat him on the head that he is handling things (think of Clinton as one of those people you have pretend to be the other side during debate prep ... a sort of Republican stand-in) since they still think he's soft and keep the lead. How "change" comes from more dirty politics, more "gotchas" and so forth is unclear. Deep down, the hope is that her actions will only help Obama, but the fact what people know is "silly" is deemed necessary makes one a bit wary. The math helps.

Bottom line, recent events make her unqualified to be President. Well, at least of a party that I wish to vote for. I don't want Hillary Clinton to be President. Anyway, I think Power shouldn't have been fired. I respect those who say it had to be done, but they say it in a way that just cries out for another way. So, to the fact someone unworthy forced the situation only underlines what I felt for some time ... I don't want HC to be President.

Her actions makes me say "not now or ever."


* In the process, helping McCain frame the election. This adds to her campaign's desire to explain away every loss by suggesting the state doesn't really count.

Nice strategy -- if we lose by a state with no wiggle room again, we can always blame it on the other side cheating. 2004 suggested you don't even have to win the national popular vote or honestly have a firm case of a steal to use that line though just conceding right away before being really sure isn't the best option either.

Thursday, March 06, 2008

Super Tuesday II?

A net gain of around ten delegates and still significantly behind. Not very impressive. A "big win" is apparently getting the chance to stick around to suggest some more that the Republican nominee is better qualified than the still odds on favorite Democrat. Oh well. Obama better get a second wind or people will talk about the Dems limping to the general around as badly as the Mets are into the regular season. [Is that the M*A*S*H theme?]

Sunday, March 02, 2008

A Mighty Heart

And Also: Sure, it was preseason, but the first win for the Mets was nice all the same -- a hit by pitch 1-0 victory. Hopefully, the collision between key bench player Marlon Anderson and newcomer outfielder Ryan Church was not serious. Too many walking wounded veterans on the team already. Guarded optimism -- that is the correct path given recent years. Let's play ball!

Angelina Jolie is very good in The Mighty Heart, which focuses on the search for Daniel Pearl, the journalist murdered by terrorists. The movie overall has very good performances and sense of place, but the procedural missing person framework of the story honestly was somewhat dull. The Indian journalist portrayed in the movie in real life was very upset about the film, but the wife (whose book it was based on) apparently was okay with it. And, concerns that it focused too much on the wife, when it was based on her book and all, seems misguided anyway. Worth watching, but flawed.

It seemed true and the idea of watching as the wife and others raced against time to try to save the husband while she had to hold herself together was a good idea, if not totally successful in the follow thru. It seemed a bit too much like a not much better version of one of those television shows about trying to find missing persons. And, not as in depth as some might be, or a police procedural would in book form. For instance, we get a quick look at the FBI being involved, including a no nonsense / gruff female agent on the case. But, we don't really see them again, except for one brief scene. How all the parts worked during the search did not really come off that well. And, it could not, it a not too long movie that was also focused on other things.

The Indian journalist, a colleague, talked about the movie and Daniel Pearl himself in an interview last year with Brian Lamb (C-SPAN) and mentioned the wife was okay with the movie. The anguish was clear, especially since she sold her rights to help the film be made -- thus, she had a sort of "thirty pieces of silver" guilt thing going too. You can read a piece Asra Nomani wrote on the subject as well. [h/t Wikipedia] I can understand how someone so close to the events can be upset about a movie portrayal, but it did seem she was a bit misguided in what the movie really could offer. Not having a lot of Daniel Pearl, when the movie is not really about him directly, made sense.

Note how she is upset that Danny is portrayed as a hero in one point while in another he is too bland. I don't think that is how it came out and if heroism is grace under pressure (Hemingway), that is what was shown here. And, sorry, if he didn't take a risk, how was he kidnapped? He had to consent not simply to meet in a public place. Yes, it is a movie with a big star. But, it also is a quality work. Movies about real people often have imperfections, simplifications and all the rest. It helps when those who watch don't know about the events directly or better yet when the events happened in the distant past. The piece comes off a bit sad really. But, worth reading to get a sense of how a real player feels about the movie process.

Is it fair to reference Jolie and Brad Pitt etc. when the wife herself chose Jolie for the role? Is Hollywood to blame for that? I do think it could have helped if there was a bit more character related material. For instance, the commentary suggested a dynamic between the journalist and Mariane that didn't totally come off on screen. As to if the movie was real to life as a whole, I don't know -- didn't read the book or know the characters. OTOH, the Wikipedia entry has various quotes and links that suggest other players in the events thought the film was fair, in particular Mariane herself:
I have heard some criticism about her casting, but it is not about the color of your skin. It is about who you are. I asked her to play the role--even though she is way more beautiful than I am--because I felt a real kinship to her. She put her whole heart into it, and I think she understood why we should do this movie. We had something to say that we knew we should say together.

As to the characters, the Pakistani police captain is a sympathetic character that is truly understood only if you read the book or listen to the "making of" commentary and realize how much Mariane Pearl relied on and trusted him. Also, it was a bit amusing to see Will Patton play a sympathetic character, since he often plays creepy ones. In fact, he came off a bit creepy at times (maybe it was just my remembering past roles) in this one! One article suggested Jolie should have been nominated for an Oscar. I can see it. The scream of anguish when she finds out about his death was a particularly striking scene. Likewise, when she told everyone they did not fail -- they were not terrorized, they did all they could.

This is key. We cannot in life and in all we do always succeed in all respects, be it playing a game, convicting a criminal or pass legislation that we deem necessary and proper. But, we can try our best and do so with grace and justice. Thus, a game well played is respected, even if the team loses. OTOH, in too many places -- not just but including in the political realm -- this is not done. It is in effect a sin. We dishonor ourselves in the process. We are imperfect and will play our roles in a flawed fashion. But, basics are clear. When they are not carried out, we are right to be disappointed, and when appropriate, disgusted and outraged.

Anyway, the movie is worth renting. But, it is a movie that does seem to scream out for a commentary track.

Saturday, March 01, 2008

McCain, Paul and the Some Radio Voters

And Also: H/t Eric Alterman, here's an interesting article about top Obama advisor, Samantha Power. OTOH, this anti-smoking screed is a bit much -- yes, people smoke, and more did (hint: this means many quit) before the beneficial anti-smoking movement in the last decade or so. A few scenes of smoking is not "cigarette porn" and "glorified and romanticized cigarette smoking" also is overkill. He must have loved the ending of the offbeat musical Romance and Cigarettes!

In response to a criticism of inconsistency on his criticism of McCain's active support (which he is right to note is key) of an anti-Catholic (and other things) bigot, GG responds:
As I made repeatedly clear, I never supported, endorsed or "championed" Ron Paul, but rather, pointed out that he was the only presidential candidate consistently forcing into our political discourse two issues that urgently require attention -- the rotted and destructive premises of America's growing imperialism and the fundamental abandonment of our constitutional framework.

A few things can be said about this. First, since I think he did have a blindspot of sorts for Ron Paul, this underlines that no one is 100% right. Selective outrage is cheap when we pick the few weak spots of an otherwise on the whole on the money person to tar all that s/he says or think. In fact, it is a bad thing when we ignore the accuracy even on the whole very wrong individuals because we simply don't like them. Fair conduct involves a certain amount of respect even for those we rightly find distasteful. Overall, the "inconsistency" criticism often is pretty lame, since we often can find something inconsistent about people. It is a human trait. We must look at the argument being made.

[Thus, it should be underlined that I'm not missing the forest for the trees here ... the post on the whole, as are his blog posts generally, is on the money. McCain is actively supporting a bigot. It is wrong to blame someone for everyone that says good things about them -- though yeah at times in aggregate it might be suspicious -- but active support is quite another. The more his phoniness as someone we are supposed to respect comes out so that the regular voter knows about it, the better. Let me expand on this below*]

Second, GG probably should let this go. He "pointed" out in a few extended columns how Ron Paul was the "only" candidate that did things that is the focus of his blog. It is not a stretch to suggest this in some way "championed" the guy. As to "endorse," honestly, it is not really unreasonable given the selective extended focus on the guy that he supported him ... especially since GG is known to have libertarian leanings (some which more liberal readers probably would oppose on some level). The time spent focusing on the guy arguably spoke volumes, more than a simple "I endorse this guy" would. Surely, if you were a registered Republican, who would GG have you vote for?!

Finally, and this led to some of the outrage from bloggers he criticized in a rather petty way, "fundamental abandonment of our constitutional framework" doesn't quite work. Ron Paul has something of a one track mind -- he is concerned with federal power, including when it involves the leader of his own party (namely, the President) and foreign adventures resulting from its overuse. This is important and GG was right to focus upon it, though again, didn't Dennis Kucinich also talk about this? In fact, Chris Dodd did as well (one the executive power front), and GG in fact talked about him too. In real effect, did Paul really influence the debate more? Like it or not, he received very little coverage, and unlike Dodd, isn't really even seen as a respectable senior veteran of his party.

However, "our constitutional framework" involves more than concern with federal power, and that is the rub. Ron Paul in various cases (including involving abortion and homosexuals, the latter of some relevance to GG in particular) did not give proper respect to that aspect of federal. We were told in 1894 that "it cannot be too often repeated,-that the principles that embody the essence of constitutional liberty and security forbid all invasions on the part of the government and its employees of the sanctity of a man's home and the privacies of his life" ... the fact that states did the invading does not suddenly make it all better. Likewise, sometimes, it is totally proper for things to be of national concern in the domestic arena, including Social Security. This too is part of "our constitutional framework," and Paul was a lot weaker there as well.

The discussion today focuses on the problems with McCain, even if many might respect him for various reasons, some that actually are worthy of respect. The criticism holds even if GG might very well have a blindspot himself. But, if he does have something of a blindspot (or supplies an appearance of one by selective focus), it does provide a chance to make a broader point -- look at the person as a whole, especially when the job being sought warrants more than a narrow focus.

Such is why I would rather vote for Hillary Clinton is 2012 than in November 2008.


* I have grown tired of Thom Hartman and don't like Randy Rhodes, so when listening to afternoon radio, focus on sports and music. The hosts now and again reference political issues, and one guy mentioned he liked McCain. He is surely socially liberal/libertarian on many issues, though has knee-jerk tough on crime views and might just agree with McCain on Iraq (who knows?). It also reminds me of a radio goofball sort in '00 that mentioned Bush was someone he would like to have a beer with. Again, the fact Bush WOULDN'T was totally ignored. Grr.

I know that politics is not the point of these shows, but when the sports guys on the WFAN raise non-sports topics, as they do sometimes, they really have an obligation to take them seriously. Some caller sneered at Bruce Springsteen, one of the hosts a big fan, referencing his "41 shots" song. Shut up and sing (really said that). The host was uncomfortable with the song. Many who listen probably are not liberal, though I reckon there are sports fans like myself that are. One might clue them in the song was about an innocent guy who was blow away with what looked like excessive force. I wonder -- if the victim was white, would the caller be so outraged if a song referenced the fact?

Also, the hosts were annoyed when musicians made political comments, though one did note that many songs have a political component. Again, I know the show is not meant to be political, but if you raise the issue, you should do so correctly. And, this sort of thing is a good window into the regular voter, roughly speaking. Why should it be a problem that musicians have a certain "brand" that is not just seen in their songs, but also in their comments? This can be taken too far, but Bruce does have a political side, and not just his working men New Jersey perspective.

And, to be fair, the other host did note that fans often have a fair warning of what sort of person/group they are going to see. Likewise, they were right to say that musicians should not be given some special license -- their views are on the same level as everyone else's. A bit naive though, since -- like it or not -- celebrities both have a bigger megaphone and a certain additional cachet in our culture.

Still, this doesn't really make it right.