Quickies: Poll Tax Upheld and Wright Interviewed

See here (n.b. Rick Hasen) for today's pathetic opinion upholding a voter id law -- fantasy problem = okaying burden on fundamental right to vote + de facto poll tax. Meanwhile, good Bill Moyers interview of Rev. Wright, but it failed to answer certain criticisms, including one Moyers made in his introduction (the U.S. government spreading HIV?). Saying Obama's comments are "political," while yours are "religious" also is pretty nonresponsive. He said some of your words were wrong. Agree? Why or why not? BTW, JW might try to be a bit more low key of late.

Sean Bell Verdict

And Also: I didn't see it, but yes, a decent portrayal of the Supremes is something that should be attempted more ... there is some real potential there. Dahlia btw was an advisor for one of the short lived attempts at a series based on the Court ... probably the one with Sally Field as a O'Connoresque swing justice. I think it had potential.

To follow-up on my brief reference to the innocent verdict via a bench trial of three cops (two black) on trial for criminal homicide / reckless endangerment arising from the death of one man on his wedding day and the injury to two friends.

I am not shocked at the results, but it boggles the mind some that it is not criminally "reckless" to set off a barrage of bullets (including re-loading) on a public street against someone you just think might be reaching for a gun. In fact, though the judge seemed to elided past it, especially when there was no clear (if any) announcement that you were the police. Surely, the locale made Bell's decision to try to rush out -- banging the undercover police car in the process -- rather reasonable to boot. Or, the anger on the stand of one of the witnesses that apparently upset the judge. Police officers have obligations with their special authority to use deadly force. This is where recklessness is different from some sort of manslaughter count.

Did this all really happen in a "few seconds" as the judge stated? Does the reasonable nature of the victims' -- hell even if they really were reaching for a gun for self-protection (they had no gun) -- actions not warrant more care by the police? What of innocent bystanders, even if they were armed and criminals? As in the past, homicides of this sort are only the worst of a situation that pops up in lesser degrees in other less flashy situations. If some officer is going to set forth a barrage of bullets in this situation, another might use non-deathly, but still very significant, use of force in another case.

Or, even mistreat civilians in other ways with very serious consequences. This is why the quite -- but not quite totally -- unique situation of this sort is an important talisman. I also think it suggests some force to the argument of a few on the importance of jury trials in all cases. The rule probably can be shown to be unworkable, but for a case of this sort (another in a different context that comes to mind is an obscenity trial), is it really a good idea to have a bench trial? Some voiced deep concerns about the sentiments and reasoning process of the judge here. A diverse decider of fact, better reflecting the community at large, can benefit both the community and the defendant. Due process very well might not demand the right to waive a jury trial in all cases.

The shooting of Sean Bell in New York (a story also fronted by the Post) did not spark the same level of outrage as previous police shootings have, the Times notes. "This was due in part to the race of the officers—two of the three on trial were black—and to the response of Mayor Michael R. Bloomberg, who reached out to the victim's family in a stark contrast to the response of Mayor Rudolph Giuliani after Mr. Diallo was killed[.]"

Let me also suggest that the hope the feds will step in is problematic on various levels. First, especially with this Justice Department, it is unlikely that a violation of federal civil rights will be deemed present. This is not only because black officers were involved -- gender equality does not occur just because [see also comments] women are among the decision makers -- though that (along with more respect for the victims than when Rudy was mayor ... Bloomberg even suggested early on it "appeared" to be an excessive use of force*) does help. Second, especially since it was not a patent case of racism including in the local trial, I think there is a serious double jeopardy problem there.

It is telling that the center/right editorial board of the NY Daily News, surely not the consistent sympathetic liberal mind-set of the New York Times, argued that this was a very close case, one which could have gone the other way with a different judge or jury. And, that it was clearly a case of recklessness, even if not criminal. It argues the officers must go. A more liberal minded black columnist, whose voice on Obama and other issues provides consistent sense, was much more angry and upset. He thought the verdict a travesty and that strong protest was not only justified, but deeply patriotic:

It would also illustrate what George Orwell called "the moral dilemma that is presented to the weak in a world governed by the strong: Break the rules, or perish." People should not have to paralyze the city to make everyone see that police actions in the Bell case - whether viewed as a crime or horrible blunder - cannot be excused as "just one of those things." IN THIS CASE, they must. ...

Protest in the face of unacceptable conditions is as patriotic as singing the "Star-Spangled Banner" on the Fourth of July. And while many will heap scorn and gleeful contempt on demonstrators, the protesters should do what any patriot would if someone tries to drown them out during the national anthem. Sing louder.

This rejoinder to the "my country, right or wrong" mentality of some is woefully needed these days. I am no big fan of Al Sharpton, who divides even when he acts in the promotion of rightful causes, but where are all the rest out there "ensuring there will be no more situations in which undercover officers rush up on unarmed, innocent people and unleash deadly force as if they're in a war zone."

It's not a white or black issue alone. The war on drugs has led to some lethal uses of force that are a result of a similar reckless mind-set that is dangerous even in war zones. Will we do more than have a Sharpton rally and another Bruce Springsteen song? Upsetting as that was to some, at least the person in that song knew to be careful when facing a police officer. Here an unarmed black man, who left his criminal past behind him to marry the mother of his child, was killed in reckless fashion.

Criminal/provable beyond a reasonable doubt or not.

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* Respect tends to reap benefits on both sides, as one side finds it harder to mistreat those they respect while the other finds it harder to be as suspicious of the motives of those that do consistently offer such due care. Bush, for one, missed the value of the maxim that a bit of sugar helps the medicine go down.

Legal Round-Up

And Also: CBS Radio had a preview of Rev. Wright's upcoming interview, including his belief that his words were taken out of context and/or selectively quoted. The preview ended with a drive by quote, out of context, of his remarks.

When the Supremes interpret the meaning of a statute, Congress usually has a chance to pass a new one in such a way that the ruling is in effect reversed. This includes if you think they did their job, but the law itself is wrong. A majority in the Senate wishes to do this in a gender pay case, but McCain et. al. in the minority blocked it. McCain is all for gender equality (like he was for avoiding Bush tax cuts?) but not so much when enforcement is at issue. His power to nominate judges as well as the value of having a filibuster proof majority in the Senate again comes to mind. But, hey, he's a "maverick," so problemo.

Meanwhile, Christine Todd Whitman (remember her?) is off the hook for misleading NYC that things were clearly safe a few days after 9/11, something the EPA's own inspector general criticized. There cannot even be a trial (contra the district court ruling) to determine if her acts shocked the conscience. This situation is yet another case of the Bush Administration not being able to understand that there are sometimes shades of grey. Or, the importance of open hearings. One person who replied to a post I had about this case way back played dumb and couldn't understand why I thought it was so wrong that they couldn't even have a hearing. Oh well.

The Democratic candidates for President co-sponsored a resolution attempting to clarify the meaning of the opaque "natural born" requirement to be POTUS. Or, rather, that John McCain himself is one. The sponsor noted that suggesting McCain (who was born in the Panama Canal Zone, then under U.S. control) was not eligible was "a notion that defies common sense and certainly offends all of our patriotism." Well, the resolution that singled out a MoveOn.org ad for denunciation surely did. Though Hillary Clinton might not think so.

The opaque nature of the clause suggests that it might not do the former, and it surely would not do the latter if it was based on what the Constitution itself demands. A bill is also in the works that would hold that "any person born to any citizen of the United States while serving in the active or reserve components of the U.S. armed forces" is meets the Art. II definition of "natural born." In effect, we would have a "blood" definition of the term. What about diplomatic corps etc.?

Anyway, one doubts the courts would get a chance to interpret the point, and so we are left with a political question. I'll remain agnostic without more input. To end quickly on two cases that were decided by the courts, I too think it "reasonable" to assume that term in the Fourth Amendment includes what state law requires. The Supremes didn't think so. In effect, 9-0. Locally, what at least had the appearance of a reckless police killing of an innocent man, was determined in a bench trial to (legally) not be under the circumstances of the case.

I join the cynicism and sadness voiced by this post and its first comment.

The Mouse and His Child

By chance, I came upon a wonderful "children's" book, The Mouse and His Child by Richard Hoban. It is well written, has loads of amazing images, some very touching and deeply philosophical moments, and some dark ones too. It concerns the travels of a toy mouse and his son. Well illustrated. Meanwhile, Balkinization continues their Yoo defense. Not a high point of the blog though the comments are worthwhile.

War Made Easy (Press Helping)

Two years ago, I read War Made Easy (now a documentary) by Norman Solomon, largely about how the media enabled selling war through the years. So, the piece in the NYT last Sunday was not exactly news and Glenn Greenwald's posts on the matter the last couple days were rightly cynical. This includes the horses out of the barn realization (per a long one shot piece, while the enabling happened continuously, often in more flashy form) of what was right in front of their face. Yippee. See also my comments at that link.

Quickies

Michael Dorf has a good column on the "aesthetic interests" argument that the Supremes now thinks "trump constitutional rights to such basic goods as health and the avoidance of excruciating pain." Smart People, besides totally wasting Christine Lahti, is rather lame. There also is a somewhat ironic (and not really in a good way) connection to Juno. That film, a bit overrated; this one, wasted potential.

Thread of the Silkworm

I posted a few new book links, including Iris Chang's first book, the tragic story of the Chinese scientist Tsien Hsue-shen, Thread of the Silkworm. A victim of the McCarthy Era, he went back to China, and was an integral part of the growth of their missile program -- some eventually used against us in the Middle East. But, Chang also discusses the compromise of his integrity to survive the political horrors of China. A victim two-fold. A well written book that covers many bases, it should not be forgotten in lieu of her latter work. It is especially interesting as a look into growing up in China, the early years of missile research and a window into Communist China. And, it is wonder of research too. All by someone in her mid-20s.

Lethal Injection Ruling

And Also: The Federalist Papers underlined the sometimes forgotten principle that systems themselves can provide important protections, individual rights and privileges in effect there because men and systems aren't angels. This is underlined in the latest fiscal news of chicanery both locally and nationally, prime examples of the legislative budget process not running properly. You can oppose any number of actions, but when the procedure is crooked, you really are in trouble. BTW, following last time, Hawkins had a bad game yesterday.

Bottom line, the lethal injection ruling was probably as good as might be expected. The chance that the protocol as applied or in general would be ruled unconstitutional was a long shot at best, but surely the case when Breyer sounded dubious about the claims during oral argument. In fact, even Stevens sounded like he was concerned about the procedure as a whole, but thought only a much weaker as applied standard would be the focus of the ruling. Thus, a concurring in part ruling seemed quite possible. Souter seemed most concerned, but counting to five here was rather easy -- for the state.

The most one realistically hoped for was a narrow ruling and some good concurring/dissenting opinions. Well, we did get five concurring opinions, and a dissent. The numerous opinions suggests a fractured Court, and in effect there was, but the basic holding can be expressed fairly easily: if a means of execution is constitutional when "the alternative procedure is feasible, readily implemented, and in fact significantly reduces a substantial risk of severe pain," it is a "cruel and unusual" punishment. There is a loophole, of unclear breadth, mentioned in passing -- if there is a "legitimate penological justification" purpose for using such a risk, it might be appropriate.

Only a plurality of three (led by CJ Roberts; Alito joined but wrote a concurrence to appeal to death penalty supporters who thought it unworkable in practice) joined, but as the lowest common denominator, it is clearly the holding of the Court.* And, it did a basic job of the Supreme Court -- not to supply individual judgment on a case by case basis like a district or even (lower level) appellate court, but to put forth guidelines for others to follow. There has been some in respect to treatment of prisoner cases, but in the realm of execution procedures as such, no case (surely of recent vintage) really addressed the matter directly. So, the case is valuable in that sense, the test seems okay enough, supplying some teeth to checks to abuses in this area.

I'd add that it also appears to be well written, the opinion smoothly addressing some of the concerns of the other opinions, and summarizing in fairly quick fashion the various factors involved in the ruling. This professionalism is appreciated, even if I will find various substantive results for which it will be used dubious at best. Also, there is an ability to smoothly elide past dubious judgments made such as the justifications for use of a paralyzing agent that provides a risk of substantial pain [when such pain is clearly foreseeable, there has to be some blame supplied the state, some sense that it was intentional ... Scalia/Thomas' arguments notwithstanding]. An ability that in some sense makes Roberts/Alito more dangerous. As to this issue, Stevens says it well:

The plurality believes that preventing involuntary movement is a legitimate justification for using pancuronium bromide because “[t]he Commonwealth has an interest in preserving the dignity of the procedure, especially where convulsions or seizures could be misperceived as signs of consciousness or distress.” Ante, at 19. This is a woefully inadequate justification. Whatever minimal interest there may be in ensuring that a condemned inmate dies a dignified death, and that witnesses to the execution are not made uncomfortable by an incorrect belief (which could easily be corrected) that the inmate is in pain, is vastly outweighed by the risk that the inmate is actually experiencing excruciating pain that no one can detect.

This all makes Stevens' concurrence a bit curious -- in effect, in ipse dixit form, he says the factual basis provided does not warrant declaring the procedure unconstitutional. Stevens didn't join Breyer's concurrence, which provided some basis on why this is so. In the long run, it doesn't really matter, and in effect gives his anti-death penalty ruling added cachet. Unlike Brennan/Marshall, and to some lesser degree Blackmun (whose obvious limited days on the Court factored in), Stevens stays loyal to the current case law allowing the penalty at issue. Linda Greenhouse, who I guess still is doing some work for the NYT, had a very good article on the strategic genius shown here.

Getting on the back of Justice White -- without referencing his post-Furman turnaround -- is particularly creative (and a bit too tricky ... which pops up with Stevens at times too). All the same, as applied here, he clearly doubts the use of pancuronium bromide, suggesting that its a risky move open to very credible litigation. Likewise, he finds per Ginburg/Souter, "[s]tates may also be well advised to reconsider the sufficiency of their procedures for checking the inmate’s consciousness." So, though I find his opinion on the whole very good, I wonder about this aspect. I'd add that the fact he is one voice raising concerns (one that concurred in judgment!) adds to the injustice of Scalia's tired claim that the opinion was just another push for a judicial power grab.

[I will remain somewhat agnostic about the specific application of the protocol in part because I did not research its particulars but my rule of thumb is to put the weight on the side of protecting against error. I am thus inclined to join the dissent and Stevens' suspicions in this respect, but will leave things somewhat open. My basic concern throughout was that there was some valid concerns here, the lower courts probably could use some guidance in applying a proper rule in this area and examination of such issues would rightly remind the complications in this area. I rejected those on both sides who implied this was a makeweight argument and had concerns beyond the legitimacy of the death penalty as a whole. But, yes "death is different," so any risks here are that much worse.]

Likewise, I'm with the plurality on one thing -- the fact society supports more humane executions does not really denigrate its overall support of the penalty on retribution grounds. Nothing is pure in that respect. [See my comment here among others.] OTOH, he does address [final footnote] the argument that somehow the death penalty can never be unconstitutional because the Double Jeopardy and Due Process Clauses have the word "life" in them. The latter case is easier, since there are numerous ways the state can deprive a person of life, including shooting prisoners doing a riot. As to double jeopardy, it is but one provision of one amendment. If the only way to execute is to do so cruelly or without due process, it is still unconstitutional.

Sorry, this is not rocket science, and the continual citation of the word "life" is honestly just a tad bit lame. This is so even when those more sympathetic (see comments too) than Scalia and Thomas makes it. As a whole, the ruling was okay ("okay" will have to be enough for years to come, thanks to 2000; it also does not translate as "what it should be"), and also showed the charm of Stevens and Souter (and Ginsburg, who wrote the dissent), plus why Breyer is just not the liberal knee-jerk type some claim him to be.

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* As I discuss here, I find the argument that Justice White's opinion in Coker v. Georgia is but a plurality that did not obtain support of a majority of the Court bogus at best. This was raised during the orals for the execution for rape of a child case, based on the sentiment that Brennan/Marshall joined because of their total opposition on constitutional grounds to the death penalty. But, they obviously agreed with the lesser point, a matter
clearly understood in later cases (including Tison v. Arizona). I also address the claim that Coker was just some sexist ruling, which also is a stretch.

Thomas/Scalia wanted a "pain for pain's sake" sort of test, the former doing his usual best in selectively using originalism/precedents to make the case. Breyer supported a stronger test put forth by Ginsburg/Souter (who as a whole thought the procedure in this case not secure enough), but disagreed that it was violated. Stevens thought further factual grounds might call into question the use of the paralyzing agent, but as is, neither the plurality or the Ginsburg tests were violated. Still, he found the death penalty as a whole constitutionally dubious, which Scalia/Thomas disputed.

Various Thoughts

Baseball: Various teams, including those in New York, have had somewhat rough starts ... no worse overall than Detroit though. Fun Mets game last night, well, fun ending -- after the Mets repeatedly failed to score (after an early run, it took an eighth inning error to make it 2-2, the other two a two run homer off Pedro's fill-in) -- it took a failed pick-off throw and two wild pitches to score the winning row in the 14th.

Heck, the Mets gave you loads of time to win people. In fact, a blown "out" call suggested the umps did too, though the Mets were due after a questionable play out the plate that led to a win vs. the Phillies. There was a 22 inning game too. It was scoreless to the 14th, the teams traded runs and ended in 2-1. Old Mets/Cubs hand Glendon Rusch was the losing pitcher and struck out to end the game. The winning won was unearned. BTW, many whined about the Yanks picking up Hawkins, but come on -- it was only as a middle reliever, and in that role he has been adequate. He's doing okay so far.

Obama: Talking Points Memo, Glenn Greenwald et. al. has dealt with the Obama/Clinton debate, underlining my desire not to watch such "journalists" in action. But, Obama's criticism of Carter for meeting with Hamas is worthy of criticism too. On this issue, meeting foreign leaders is not a good idea. Double standard, and one of those issues underlining that Obama is an imperfect choice. Such is real life, but it is worthwhile to remember all the same.

Movies: I am watching Letters From Iwo Jima, and the first half or so was good, if a bit striking when we are watching things from the viewpoint of the other side. Getting to know the enemy is bad for business. One notable bit was the desire of some military leaders to die in an honorable way, more so than the chain of command and even retreating from their positions to fight (futilely all the same) for another day. This shortsightedness in the scheme of things is a bit selfish and predictable -- quite often missing the bigger picture is failing.

Meanwhile, Kim Cattrall is following up Ice Princess (very good) with another somewhat against type role, this time a television movie entitled My Boy Jack. One review wondered why she was chosen ... see Ice Princess!

Weight: France has outlawed websites that "encourage another person to seek excessive thinness... which could expose them to a risk of death or endanger their health," partially in response to pro-anorexia websites. Putting aside free speech concerns, such laws are pretty much doomed for failure. Meanwhile, a "plus" size beauty queen in Britain has gotten mixed coverage, Chloe Marshall being "the first plus-size model to reach the Miss England final." It reminds me of the book Losing It by Laura Fraser, who was IIRC around 5'6 and 145-150 lb.

FWIW, I think CM looks good.

(Inter)national Consensus and the Death Penalty

And Also: the latest Obama "oh no! look what he said!" issue underlines the need to not let that sort of thing beat you. People are imperfect, they say or do things that look bad, but especially when the underlining point is correct, you have to ride the storm. This doesn't mean the critics and commentators are any less worthy of scorn or unfair. But, focusing only on that is the road to loserdom. Bill Clinton's ability to take this advice apparently is an exception since he is some god, but recent history suggests the fallacy of that.

[While law is on the agenda, this is a very good reminder that you can be wrong in many ways -- procedure and substance. Yoo is not alone in wanting to create his own law, we see that a lot. But, we can expect more from important legal advisors to the POTUS.]

When the Supreme Court ended the death penalty for mentally retarded offenders in 2002 and again for those who were minors at the time of their crimes in 2005, it did so via an elaborate interpretive dance that required putting one finger on the pulse of foreign courts and the other to the wind of American public opinion.

This* is not how I interpret Atkins (retarded) and Roper (minors). The former ruling handled things thusly:

Those mentally retarded persons who meet the law’s requirements for criminal responsibility should be tried and punished when they commit crimes. Because of their disabilities in areas of reasoning, judgment, and control of their impulses, however, they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct. Moreover, their impairments can jeopardize the reliability and fairness of capital proceedings against mentally retarded defendants. ... Presumably for these reasons, in the 13 years since we decided Penry v. Lynaugh, 492 U.S. 302 (1989), the American public, legislators, scholars, and judges have deliberated over the question whether the death penalty should ever be imposed on a mentally retarded criminal.

Foreign courts did not really have much of a role in Atkins and the "evolving standards of decency" issue that is at the core of Dahlia Lithwick's 'national consensus' discussion only played a partial role. DL implies the Court mainly focused on foreign and domestic opinion; in Atkins, it did deal with one (the Constitution and judicial precedent required it) but even that only was part of the battle.

Roper addressed the matter this way:

Just as the Atkins Court reconsidered the issue decided in Penry, we now reconsider the issue decided in Stanford. The beginning point is a review of objective indicia of consensus, as expressed in particular by the enactments of legislatures that have addressed the question. This data gives us essential instruction. We then must determine, in the exercise of our own independent judgment, whether the death penalty is a disproportionate punishment for juveniles.

IOW, such "consensus" is important, but not the only thing at issue. The bottom line was that "The differences between juvenile and adult offenders are too marked and well understood to risk allowing a youthful person to receive the death penalty despite insufficient culpability." The world doesn't think much of the executive we have in place either. But, unlike cruel and unusual punishment, our Constitution allows that sort of system of government.

And, yes, foreign opinion is recognized. This is not new (the case referenced is from the 1950s) nor controlling:

This reality [foreign opposition to executing minors] does not become controlling, for the task of interpreting the Eighth Amendment remains our responsibility. Yet at least from the time of the Court’s decision in Trop, the Court has referred to the laws of other countries and to international authorities as instructive for its interpretation of the Eighth Amendment’s prohibition of “cruel and unusual punishments.”

References to foreign law and opinion might horrify some, but it is not really "originalist" horror per se. To take but an example, Martha Nussbaum in her latest book that deals with "liberty of conscience" notes that American political philosophy in the latter 1700s often took a "cosmopolitan" view ... we were "citizens of the world," who had a fundamental equality/kinship based on our ability to reason and have a capacity for moral judgment.

Thus, determining what is "cruel and unusual" is not just a matter of parochially looking at our own experiences, even if some wish to do that. This is a paltry view of the matter -- as if those in an age of enlightenment will only look for knowledge nearby. No, they have a decent respect for the opinions of mankind, to reference both the Declaration of Independence and a recent speech by John McCain.

But, again, this is just a factor in the judging involved, even if it might be something of a tie breaker in some fashion (or thumb on the scales). I agree finding a "consensus" is tricky, so we can focus on more concrete matters such as the lesser capacity of those mentally retarded or juveniles or the fact that the proportionality roughly expressed by "an eye for an eye" means that it is dubious to execute when someone did not take a life. So says precedent, and trying to suggest Coker didn't mean to include raping children is a dubious matter.

We can start with that, add another concrete problem raised in reply to an earlier post of mine on this topic -- often children make less reliable witnesses, so you might not have the firmness of proof necessary to "comfortably" execute someone. Also, though this might be more policy related, the death penalty might make it more complicated to prosecute or deal with rapists/protect children.

But, yes, determining "cruel and unusual" also includes some weighing of evolving standards of decency. This would likely be a factor (unspoken or not) in any extent, but it is not the sine qua non one here.

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* The link goes to the article this is directly in response to, but overall, my concern here the argument that the Supremes basically relies on what other countries (and some arbitrary analysis of national consensus) think on this matter and that even using this as a factor is illegitimate).

Next Victim of Yoo et. al.: Academic Reasoning

And Also: I serendipitous found an Israeli movie translated as "Jellyfish" in the movie listings ... the paper didn't say what it was about ... while struggling to find a movie worth watching. I looked it up and it sounded intriguing. It was both funny (laugh at loud at times) and touching.

One thing that bothers me a lot is when a matter is argued badly ... I can respect disagreements. For instance, I find it very understandable -- not to sound condescending in the least -- if someone thinks abortion should be illegal or same sex couples should not marry. But, if you are going to talk about how only those who do not choose abortion base their choices on religious and/or moral choices ... when numerous religions including those of people I know personally say just the opposite ... sorry no. And, "badly" includes certain extremes, like constitutional amendments to the federal constitution. If you have any respect for homosexuals, how can you support a guy who pushed for that?

[The shoe is also sometimes on the other foot -- the former deemed always to be hypocrites, the latter people who just hate gay people. Likewise, people I agree with can be snotty or use shoddy reasoning. We all do that sometimes, but some do it a bit too much.]

Brian Lieter has reached that point while responding to posts over at Balkanization on the issue of whether or not John Yoo should have his tenure stripped. And, damn it, the people in charge there should bluntly tell him. It is left to comments, not just mine (I had to restrain myself the last time when he implied that the fact Yoo acted in a partisan way is in some [****] way is why people want to strip him of tenure), to make the point. Mark Field (and company) did good work in this regard. MF repeatedly had to underline how BL was missing the point and playing games, though did so more politely than some might.

[Those interested can search for "Joe" here and here. And, without reference to BL, here, which is the first comment of mine on the matter. BTW, looking again, I find the attempts by the co-bloggers there to bend over backward to support the other side -- ML clearly leans that way anyway -- are at times taken to extremes. JB's helping by in effect saying "well didn't St. FDR do it too" is well answered by Dilan.]

After all, after Scott Horton spelled out a credible case that Yoo was complicit in war crimes, thus via a fair process very well might deserve investigation/removal, BL said such things were "obviously" irrelevant, since the only thing that "might" matter is an actual criminal investigation. MF finally snapped at one point* and more power to him. Now, the path of trying to have his law license stripped raised by some has validity, but as Glenn Greenwald noted yesterday, someone should investigate the guy. Given his cronies -- and Balkin knows this -- in government are doing all they can to keep him immune from prosecution, raising some "criminal prosecution" exception to tenure is a Catch22 fantasy.

But, those who try to suggest this is just about opinion and partisanship [verse, in MF's words, "speech acts" involving complicity in war crimes, something that apparently fails to horrify some any more] appear to know how to lie to themselves pretty well. As to the law license bit, this seems a bit questionable actually, if you are truly concerned with academic freedom. For instance, various lawyers were targeted in the McCarthy Era, leading to some important civil liberty rulings. They had their law licenses threatened (and criminal action is not the only way one can have had your license stripped or lose tenure, the strawman of alleged intelligent legal minds aside) because of their beliefs.

Crimes of moral turpitude should do the trick too, I reckon. You know, maybe being caught in certain homosexual acts or perhaps use of some sorts of drugs, even for medicinal or religious uses if not legal at the time. You get the drift -- the fact someone loses his/her law license very well in certain cases and era be not a very good reason why they could not teach law. An absolutist test that those who lose their license should not teach law (or, as one person noted, even be a law librarian) seems extreme and in some situations a threat to academic freedom. I think some supporting tenure for Yoo would probably agree. Nod to Sandy Levinson too on that point.


Oh well. Appears that Obama said something importune. His campaign is clearly toast since he obviously does not respect gun owners and religious believers. This is as depressing as half of the Mets games so far, including Santana being 1-2. Heck, it just might be a bit more important. Not the arguments -- no, a college handball tournament is more worthy of our concern than that -- the fact people still take them soooo seriously. As I said in a thread here, grow the heck up!

Anyway, yes, I think there is a good argument to strip Yoo of tenure, but if I am wrong, shoddy reasoning (and worse) and letting it go without much reply is not going to convince me otherwise. That is the road to people talking past each other, each cocksure they are right, and the other side is ignorant fools. Being on one side of that more than once, I find it a sad situation. Is this another victim of the current regime? It helps, surely.

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* "Some of the arguments here just astound me. The same people who've been demanding a halt to the torture regime all of a sudden turn into Hamlet when the prospect appears of taking one small step for mankind." I concur Mark. I concur wholeheartedly. Dilan is a late edition to the party, but his comments on the First Amendment on that thread again uses his legal talents to good use.

Privileges as much as rights warrant deep responsibility. Think of marriage, the priesthood, lawyer/client, and so forth. Some here appear to want one but not the other, or do not want to defend one with anything that approaches argument worthy of their professions. By now this does not "astound" me but it does depress and anger me deeply, somewhat equally.

Air America Continues To Collapse etc.

And Also: A rating summary: "The Take is rated R (Under 17 requires accompanying parent or adult guardian). There is violence, sex and brain surgery, and the good guys smoke." Yup. More cigarette porn!

In a story about the latest polygamy prosecution, a headline (on Findlaw) referenced that someone pressured teens to have sex -- clearly, they need encouragement. Seriously, it was about teenage girls under seventeen being pressured to have sex as part of some ritual/marriage ceremony deal, so more in line with the recent guilty verdict of a civil rights leader from the '60s on incest charges. A matter Timothy Noah over at Slate argues is undercovered.

The brainy South Bronx activist who stirred an Olympic torch-bearing ruckus in San Francisco said Thursday her conscience fueled her surprise anti-China protest.

There was a good article in the NY Daily News today about the South Bronx native -- an attractive woman in many regards -- who staged a small protest while bearing the the Beijing Olympic torch. The retired fireman fellow torch bearer felt this was "disgusting and appalling" while the police officer torch bearer thought it was a poorly time protest that did not show "the best of American citizens." Yes, our support of people who enable torture underlines the point. Desires to use Yoo etc. as scapegoats notwithstanding,

[See Glenn Greenwald today; I commented over at Marty Lederman's post on Yoo/academic freedom too, which GG links.]

The Olympics are intended to provide a forum where nations peacefully come together and compete on the playing field, not the battlefield. But, we already had an Olympics boycott that suggests the ideal is not always so lovely in practice. Those who carry the torch represent the nation as a whole, so perhaps all the same it is wrong for them to use the event as a means of protest. It is not really about them. But, it simply is not disgusting or anything if one tastefully does just that. Wrong, arguably, sure. There is wrong and there is wrong, however. Lets have some damn perspective.

On that subject, what the fuck is wrong with Air America? It was at best questionable when they suspended Randy Rhodes (the popular/successful on her own afternoon host that I more than once said here turns me off) for calling (during a not station sponsored comedy event) Ferraro and Clinton f-ing whores for some of their attacks. RR makes it personal on her show sometimes, and also at times goes for the low brow. I'm not a big fan of her particular style in that regard.* This was tempered somewhat by her skill and the homework (if somewhat slanted) she clearly did on the issues. But, come on. I truly hate that petty shit. She says a magic word or two, and suddenly it's soooo horrible?

She refused to apologize, (right) wanted an apology, and now it led to her leaving the station. Pathetic. Again, I don't even really like the woman, but you put yourself up for ridicule when an allegedly progressive station fires a popular host for such a shoddy reason. But, they really do not care much about listeners. Sam Seder was popular and provided a strong voice, but he is shunted to Sundays, tossed as a guest host now and again during the week. Thom Hartmann isn't even around any more -- the guy who replaced him riffed on something about how parenting is bad these days or something, and I had to turn him off. That leaves Rachel Maddow, but the signal in NYC is so bad, I basically stopped trying to listen. Air America is basically a joke now.

[See here and here. As to the latter link, I am mainly listening to music during the day now. It might be that the incident was just an excuse for the station to get rid of Rhodes and/or she was just sick of the company as well, which would only underline how low it has gone. All the same, the company made an issue of her off the air comments about public figures -- comparisons to Imus very weak -- and its assistance in the PC movement is still quite relevant.]

Pretty sad. It started off with promise, a good signal in NYC and pretty good hosts from morning to midnight. Shoddy business and treatment of staff/listeners left it a shell of itself, awaiting only for Maddow to escape to totally fall apart. Get out when you still can girl. Find a better locale, get Kent Jones back and put this sham station out of its misery.

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* And, though his angry denunciations of the Bush Administration et. al. was refreshing, Mike Malloy bothered me as well, though without the annoying voice. He also has a pure Bush hatred (if the guy said the sky is blue, it would mean it is not) that was too over the top for me. [To give him some props, Malloy also is clearly a professional, with a news background, and continued promoting the progressive message on an alternate network from deep belief in the value of the effort.] Still, Malloy was treated badly by the station too, and the time slot never became worth turning on to again.

Congestion Pricing, Book Quickies etc.

To follow-up something I touched upon last time, Juan Gonzalez, sometimes co-host on Democracy Now!, thinks Sheldon Silver -- leader of the state assembly -- is a hero for blocking Mayor Bloomberg's congestion pricing plan. This makes him a minority voice in the NY Daily News, which is not too surprising since the paper's editorial policy leans center/right, and targeting Silver provides good copy and political cartoons. But, the whole matter actually is pretty tricky, even if some policy on the matter would be valuable. Another viewpoint is useful.

Fair enough, but why no open vote on the matter? Why didn't JG address the matter? Does Sheldon save NYC City Council whenever it votes in support of something that is bad? Or, just something his (Sheldon and my own member unofficially stated their support) caucus (and/or their constituents) strongly opposes? And, does a tax on the rich really address a problem that in part must be faced by users, including those who drive when they could use mass transportation? The column references the apparent need for cameras and such in the failed plan, to catch drivers who don't pay or whatever, but there is a clear free rider problem here.

Such things simply were not addressed in the column, and I emailed him to say so. In the process, I served what might be called (and was in Scott Gant's book, We're All Journalists Now) a "citizen journalist" function. Nebraska's shield law (h/t Gant) covers anyone "engaged in procuring, gathering, writing, editing or disseminating news or other information to the public." In other words, it protects a function, not an institution per se. Gant argues that to only do the latter is in effect setting up a quasi-licensing system (also inequitable), which is exactly what the First Amendment's history says we must not do.

On the book front, btw, I have read and enjoyed some Carson McCullers before and liked this collection overall, but found the ending of the lead story -- The Ballad of the Sad Cafe -- rather shall we say lame? But, overall, even in that novella, McCullers' strong and often bittersweet writing comes through. Still, the story does end up in a pretty lackluster way, surely not very crowd pleasing ... and not just because of the darkness of the ending. You expect that with this author. It just is all very anti-climatic. I'll say a bit more below.*

Anyways, I saw a bus ad arguing that movies with cigarette smoking should not even be PG. I referenced Eric Alterman, usually a sane sort, calling Definitely, Maybe "cigarette porn" because of a few scenes (including a meet cute) involving smoking. I told this to someone I know who basically hates smoking (surely ashtrays), and she thought it silly. Smoking is an adult activity (surely, legally), surely, but movies have lots of adult stuff in them. PG movies at that. This includes some unhealthy things too.

So, don't want it in movies? Go ahead. 'R' rated? Bit much.

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* The dark ending is foreshadowed at the very beginning of the story, so we suspect our antiheroine of sorts will come to a bad end. Fine enough ... again, par for the course with CM. Still, we get into the flavor of the story, good pre-WWII small town Southern town feel, are glad the 30ish woman at the center of things has soften a bit while still holding some of her edge (and her business acumen etc. supplies a bit of a feminist angle) and so on. Good local flavor, you can taste it.

Then, her reprobate long ago hubby comes back in town, she falls apart, and the "cousin" she helped for years pines for the guy & thus, is driven to rip victory from her (the hunchback jumps on her back at an ill-timed moment) during the final fight between the former (short time) spouses. The two leave town and she is left behind, a broken woman, and the ending is upon us. Blah.

Six Inch Out Is Progress of a Sort

And Also: Linda Greenhouse has gone to academia, but her replacement has some bite as well, as shown in this account of the latest "baby hit me one more time" bit in the executive power wars.

Taylor Branch, the Civil Rights historian, had a powerful opinion piece ending with a favorite parable of MLK. Maybe, it does touch the necessarily bleakness when the last image we have is of a "liberal" in hell, still unable to know what to do, even if his heart is in the right place. Branch also underlines the problem is not one party, the problem "far too big" to so limit. And, if you ignore the depth of the problem, you will find any solution is but quicksand. Sorta like trying to control the Senate with 51 votes or something. Or, ignoring your problems ... sorta like Obama saying that even those we disagree with often has some real concern, misplaced they might be in the end.

But, apologies to Malcolm X, you have to take that knife out in degrees sometimes. Don't dare call it success when it is still rather deep in your back, but "progress" doesn't mean it still doesn't hurt like a ****. It might just mean that the net result is somewhat positive and has provides some ability to bear the situation with a degree of relief. And, where should we look? Are all sides equal in this regard? No. Nor, is the options pretty. I had a debate over the weekend over the "congestion pricing" plan favored by Mayor Bloomberg. The devil is in the details, and they didn't satisfy the state assembly. And, some who I respect find this a good thing, all things considered.

But, the person who felt $8 and so forth was too much money to pay to drive into parts of the city must also face up to the alternative as well:

After Mr. Silver announced the plan’s demise, a statement was released by Mary E. Peters, the federal transportation secretary, indicating that her department would now seek to distribute those funds to traffic-fighting proposals in other cities.

New York also hoped to use revenues from congestion pricing to finance billions of dollars in subway expansion and other improvements by the Metropolitan Transportation Authority, money that must now come from somewhere else.

Consider as well, going on seven years, there is still a big hole downtown. I reckon there was still plenty of ruins in '53, after WWII, but there was a lot more scale there. And, congestion pricing addresses a real issue -- for instance, many want a new subway stop on the West Side. Who will pay? There was also an article in the NYT yesterday about how some students are drawn to philosophy, much to their surprise. It is more useful than some (I admit, I am not a big booster) think since it has deep applications, including analyzing any number of decisions we make. This sounds like another college deal.

Something about a free rider problem ... with the people whining when asked to pay. A nod of respect btw to our subway system ... millions a day. And, even with problems, some dirt and grime, annoying "performers" and a bit of crime (remarkably little given the breadth of the system, even late at night), it runs remarkably well. Such is why some rather well off people in suits worth more than half my closet still take it on a daily basis. But, this costs money, people. This plan might be flawed. I'm not sure.

Find a better one then.

Priceless

I agree with someone who noted that there are so few comedies out these days; technically, there are, but College Road Trip etc. stretches the term a bit. A French farce, Priceless, about a bartender who follows in the footsteps of the gold-digger he falls for is just what the doctor ordered. Audrey Tautou, best known here for The Da Vinci Code and Amélie, shows a flair for comedy here -- great spit-takes. Nice slightly amoral romance too. Took a few years to get to the U.S., but lot's of fun now that it did. Nice on the eyes too.

Dignity for Animals and Humans

And Also: My remarks on the new movie My Blueberry Nights, in response to a Slate review, can be found here. Liz Phair, a singer, provides an interesting review of another musician's autobiography. Good choice for a review. The Juno soundtrack fits the mood of the movie, btw, and is a good buy on its own.

Indeed, most people would be disturbed to learn that a family brought home a dog or a cat from a shelter and then proceeded to treat him or her like a violent criminal -- even a criminal sentenced to life imprisonment rather than death. ... Rather than proving that people treat animals better than they do their fellow human beings, then, the humane killing of pets represents the exception that proves the rule. Pets are the honorary family members who are officially exempt from the casually vicious treatment reserved for the remainder of animal-kind.

-- Sherry Colb, "Lethal Injection and Animal Euthanasia: A Fair Comparison?"

Prof. Colb here discusses the claim by some that we supply more care in euthanizing our pets than given sometimes by lethal injection protocols. In effect, she finds this not very surprising, since pets are like family, not strangers, strangers who in many cases are often considered almost (or actually) subhuman threats to society. Thus, even the dangerous pit bull or rabid dog might be given more respect. All the same, our concern for non-human "animals" (humans are animals) is selective. [The essay in fact quotes a Jewish writer that compares the treatment to the Holocaust, a comparison is likely to get many in trouble.]

And, Colb has written some about this subject, concerned about animal welfare issues as well as her focus on gender and such. Just today, I read an article in the local paper -- it has a regular animal feature on Saturdays that focuses on dogs and cats -- on the Farm Sanctuary. It concerned the "somber" event of a death of one of its first members -- a Holstein steer. I wrote an email to the author of the article thanking her for its respectful and informative nature, providing a chance for readers to think about something they might not think much about generally. This is good as a general matter -- the NY Daily News also does the same in its weekly religion column.

Anyway, the article in part noted:

In his new book "Farm Sanctuary: Changing Hearts and Minds about Animals and Food," founder and President Gene Baur explains the dangers and abuses of factory farming (raising animals in high-density, confined conditions) and encourages the public to think about the inhumane treatment of the farm animals that become our food.

Professor Colb would concur, noting in part:

Such animals - including mammals, such as pigs, who greatly resemble the animals we keep as companions (not to mention ourselves) in their social nature and in their capacity for fear, pain, and joy - live in cramped, filthy, dark, and unhealthful surroundings and are separated from their young and suffer unregulated surgeries (like tail croppings and castration) without any anesthesia. These animals ultimately die a terrifying and painful death, however well-hidden from public scrutiny. The Animal Welfare Law notably does not even apply to animals raised for food.

Though many think so, as with the death penalty, it is not necessarily the case that absolute prohibition is necessary to provide an acceptable result in this context. One interesting person who has done much to relieve the mistreatment of animals raised for food is Temple Grandin, who has written how her autism better enabled her to have some sort of connection to animals, understanding something of what they are experiencing when led to slaughter. She herself is an expert on the design of thoughtful and humane animal handling equipment. Grandin argued that animals have some sort of right of humane (natch) treatment, which does not necessarily require a vegan path.

Another legal mind that has addressed the issue of animal rights and welfare is Martha C. Nussbaum, who provides the philosophy side perhaps of the Cass Sunstein/Nussbaum marriage. One of her many projects handled the topic, but it also popped in her latest, Liberty of Conscience: In Defense of America's Religious Equality. Briefly, I found this overall a rewarding work, though at times I felt she covered certain topics in a somewhat simplistic fashion is promotion of her thesis (equal respect the key concern here). But, she is not alone here, including those for which constitutional law is firmly their field. Nussbaum's coverage of Roger Williams, often portrayed a basically dark man, itself is worthwhile -- he comes off almost like a teddy bear at times here.

To touch upon a few examples: Nussbaum has studied India in particular, so her mention of Southasian religions as well as the more rational/deistic type God of some monotheistic religions among the "other" that is often forgotten is not surprising. All the same, sometimes she seems to miss that certain events firmly trouble sects of mainstream religions as well -- Jesus spoke of praying privately, references to "G-d" suggest certain Jews might be bothered with "In God We Trust." She also doesn't really do a great job clearly defining what actually is "religion" per se; while firmly arguing "conscience" warrants deep respect, she implies it is not always co-existent with religion per se.

[Likewise, she suggests targeting of homosexuals is more a question of fear of other than religious in nature per se, though noting that discrimination lacking the former tends to consist promoting the latter. But, to take the most divisive subject, marriage is often seen as a sort of "sacrament," a religious component clearly present.

Selective state sponsorship, even in an age where fornication laws are no longer really enforced, has clear free exercise problems at least, and probably establishment ones too. Pre-textual or not, "God" often pops up in these discussions, the current policy apparently required by that entity. Nussbaum has a broad vision of religious liberty; even policy choices with indirect burdens on religion should concern her as religious issues as such. But, I think this one in part is directly involved with her subject here.]

And, the examination of case law is at times too shallow, if overall worthwhile and even quite thought provoking.* But, again, one rarely finds a book of this sort without some flaws -- the topic is just so hard to summarize in a perfect way. And, even while not wanting to admit some religions lead to some concern in public policy, Nussbaum is honest enough to raise the point. 19th Century Catholic leadership at times caused some rightful concern, even if corporal punishment of boys who wouldn't quote the Protestant version of the Ten Commandments (weirdly, Scalia and Thomas don't remind us of such things in their opinions supporting more sectarian religion in school) is obviously offensive.

Anyway, this whole aside did not lead me to miss the opening -- Nussbaum covered the issue of evolution, including laws that banned the teaching the man evolved from "lower order of animals." She perspectively notes that teaching evolution arguably does not violate such a law; in fact, it might not violate a law that banned teachings that went beyond the terms of Genesis [Catholic schools, for example, find nothing wrong with teaching evolution]. The teaching of evolution does not require putting animals on some "lower" plane, though it might very well require us in some fashion but them on a higher one -- the connection of non-human animals to you and me does suggest they deserve more dignity than they often receive.

And, in fact, the animal welfare movement did surge in around the same time as Darwin developed his theories. A rational and emotional consistency is present here -- respect for the well being of animals crossing into many fields.

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* Nussbaum's concern with bans that arise largely from shame and taint leads to some libertarian results -- her book on the subject, for instance, looked askance at many sorts of public nudity bans. In her knew book on religious equality, Nussbaum puts forth a positive view (at least vis-a-vis other practices of the era) of nineteenth century Mormon polygamy. She also strongly rejected bans on prostitution (partially on other grounds) in response to the Spitzer mess. The opinion piece on the point is worth reading and makes some important points.

Unfortunately, she ignores the fact that he himself enforced the laws in question, and does not address the obligations of following even bad laws (particularly if you are in charge with executing them!). I reckon even Germany and Netherlands have some ill-advised laws or even (Germany in particular) regulate prostitution in such a way that one can still break the law when taking part. His other problems, including the fact he was known to be a prick (to be blunt) in his public roles, also is relevant. Spitzer was a flawed leader, and he has a chunk of the blame for his ruin. Such things must be kept in mind.

Yoo Memo

The release of the Yoo memo raises usual all too depressing themes, except in one case -- open government rules, the ACLU and court review is the only reason something that should never had been classified came to light. Meanwhile, this perversity of law and justice that directly and indirectly led to war crimes and other bad things will lead to what exactly? A sneer to the Orin Kerrs of the world as well.

BTW, I was shown this stupid opinion piece as well. [MLK] How many eat up this stuff?

Game 2 ... Time To Stress Already

And Also: I grew tired of Thom Hartman on Air America, and now read that the local Air America affiliate in NYC took him off. The signal for 1600 is if anything worse for me of late, making it hard to listen to Rachel Maddow, thus I have not really listened to the station much at all of late. As always, I find Randy Rhodes annoying. It's sad really.

The general line was this -- after ending the season in a horrible fashion, the Mets started anew on a good foot (while Tom Glavine got a no decision five innings for the Braves) led by the arm of newbie ace Santana and a big inning (six runs) against the team that ended their season last time around as well. Right. We have been down this road before. The Mets swept the Cardinals to start the '07 season, after they ended the Mets postseason months before. The Cards had an up and down season, ending badly, so that's comparable to the Marlins -- that is, a bad team.

Another bad team, the Pirates, beat the Braves 12-11 in the 12th, after blowing a five run 9th inning lead and almost blowing a 12-10 lead too. An average team, the Nationals, had two ninth inning wins -- against two different teams -- in the first two games. The Mets played a special exhibition "Civil Rights Game" vs. the White Sox, leading the ESPN opener on Sunday to be a one game Braves/Nationals game, with the President dropping in the booth along the way. After blowing a 2-1 lead on a passed ball, the Nats beat the Braves with a walk off homer. They then beat the Phillies. So, you have to win all the same. Still, let's not get toooo excited.

Furthermore, it was far from a joke game. The Mets got to the journeyman opening game starter, a long man at best on good teams, in the fourth inning. This in part took a good baserunning move when the score was but 2-0, the alternative easily a doubling up of the guy off first. A two out inning could easily have gone differently. After Santana left after the seventh, giving up a two run homer after thinking he got a third strike along the way, and it was time for the bullpen. Lesser known bullpen, and steroid boy Mota replacement, Matt Wise only got one out, two on. It eventually came down to a 3-2 pitch by Sosa, a walk loading the bases with two outs, making it a double away from a 6-5 game.

They got the strikeout -- expect similar exhaling throughout the year. And, the Mets have had trouble with average teams in the past, not always taking advantage of them like they did yesterday. Game 2 was Pedro against some nonentity. Both got no decisions, Pedro left limping. Charming. El Duque is hurt, deciding this time around he would start things hurt, the theme the first two years was ending things hurt -- hurting the team (especially in '07) in the process. The manager mentioned that the hope was that we would get ten plus wins from Pedro -- the immediate sentiment was that I surely HOPE so (he is after all your putative #2 starter), but who knows now?

Likewise, who's up for #5 now? Anyway, Matt Wise -- after two quick outs -- gave up a winning home run in the bottom of the 10th off some Marlin nonentity. I listened to the late afternoon opener, caught the late innings of today's game ... always charming when Gary Cohen, sounding like an ESPN neutral site announcer ... excitingly calls the play that ends the game for the Mets. There is a line between a homer -- which makes the Yanks announcers hard to take (the White Sox guys have them beat; the Cubs duo actually are pretty good ... WGN, that is) -- and this. I say this even though on the whole, I find the SNY crew very good. But, sorry, this is hard to take. On that subject, I share the sentiment of one host on the local sports radio show -- the main Sunday Night Baseball guys are just too annoying ... some of the other ones, including the radio guys, are pretty good really.

Thus, after weeks of the line being that Mets players and fans can start anew, putting last season's pathetic collapse behind them, Pedro gets hurt and they lost a game because they can't get a hit (other than questionable infield single) in the second half of a game against the Marlins. Leaving eleven on. But, hey, it's only Game 2. No reason to be concerned. Stressed out? Sure ... what else would a Mets fan do?