The Tequila Worm

And Also: Since some focus on her conservative/moderate side, including in some ways Obama, I discuss Sotomayor's liberal side here. Here's a good analysis of her Latina speech, making sure to give some context to, but not to run away from, the infamous phrase. Of course, for some, think the speech only underlines why she is a good choice. Ignorance is not bliss for all.

A few days ago, right before Sonia Sotomayor was nominated, I discussed Viola Canales. She has a diverse background and came to my attention because she is the partner of dark horse candidate Pamela Karlan. Among other things, she is an author, so I decided to check out her two books. The Tequila Worm, a sort of fictionalized autobiography, was first up. I will let one reviewer at Amazon speak:

I gave this book a four out of five because even though i would rather a book with action this book kept me entertained the whole time i was reading it. It had some good background information to set the mood of the story. It also was broken up into good chapters and it told the story of Sofia well. It showed that even a girl from a middle class, almost lower class can make it and get into a good school, and then later get a good education and job. I would recommend this book to a person if they would want to learn about the Mexican culture or if they just want a good book they can read that relates to there everyday life. Also i wouldn't recommend this book to a younger child. They may pick this book out because the cover looks like a little kids book, but it is actually a little hard to understand all of the information given about the Hispanic culture, and the catholic religion. If i had the choice I would definitely read this book again, and i may even use it as a resource for a school report on the Hispanic culture.

It is a "Young Adult" book, but it is charming and enjoyable for all ages, the story of a girl growing up in the barrio and later going away to boarding school, learning about family and home throughout. One review of Up wondered why Pixar (of Wall-E fame) could not bring a girl as a major player this time. The female robot not quite doing it. Well, this book will be a great resource for those girls looking for that, though yes, it is more geared for junior high and high school readers.

I will let you know how I like her other book, a collection of stories. It is coming to a local library by the charm of the NYPL book reserve process.

Drag Me To Hell (spoiler)

This movie has received rave reviews, so I was disappointed when it turned out to be somewhat lame -- though it had its moments -- particularly a gyp of an ending. Starts off well, but becomes a bit dull. A recent (and cheap!) off Broadway play about two Supreme Court law clerks who fall in love was much better, though the plot left something to be desired at some points.

Bottom Line

And Also: The newbies and irregulars seized the day again. Mr. 500 again was right in the middle of things and new permanent catcher (his main competition traded for Lance Broadway, a destined for the minors pitcher with a nice baseball name) Omir Santos hitting in both runs. Oh, and Mike Pelfrey, getting the ace treatment in the lack of run department of late, threw another great game. He actually became the second pitcher to go into the eighth.

This works for me:

Sotomayor follows a fairly consistent Constitutional philosophy, and errs on the side of maintaining rather than limiting rights.

Sotomayor would not have been my first choice, primarily because my political leanings are far to the left of her legal theory. But I'll be supporting her whole-heartedly. Her trail of opinions paints a picture of a fair-minded, incisive legal scholar who is unafraid to stake out unpopular but legally meritorious positions. Right-wingers are going to oppose her nomination with full force - we would be foolish to do it for them.

I also take Tom Goldstein of Scotusblog at his word that she is a intelligent, studious judicial moderate. Bottom line, that is what we should expect from Obama.

It's fine to push back some, so that the right talking points do not push the center too far (their strategy is not really irrational, even beyond satisfying their base and fund raisers) and make us forget the ideal judge would not make various rulings that she did. [Let us not exaggerate what she did though.] Promoting our side of things, including things like empathy and diversity, is ideal with such a safe nominee as well.

Still, let's keep some perspective along the way.

And More

And Also: Frank Pommerstein's Braid of Feathers: American Indian Law and Contemporary Tribal Life (1995) was at times a bit of a trudge to read, but it provided an interesting viewpoint from an appellate judge on two Sioux courts. For instance, the importance of the reservation as a place for Indian culture to exist along with the need for true sovereignty were important themes. The different perspectives tribal courts might bring also were covered.

Scotusblog should be correct when noting that Judge Sotomayor's confirmation is a no brainer. This does not mean she will not have some criticism though much of it will be stupid. The Manhattan DA supplied yet another answer to such things. A money quote:

The judge's work since she left this office confirms that she is a strong champion of the law. In particular, she has served with distinction on what I consider to be the second most important appellate court in the world, the U.S. Court of Appeals for the Second Circuit. To be sure, she is in favor of civil rights, in the sense that she believes there should be fair treatment for all. But that is, of course, the law. And she understands poverty, and does seem willing to accept government action that provides a safety net to the poor. But that is not exactly "radical."

There are some unanswered questions, including her view on privacy and executive power, though Glenn Greenwald links a segment from her questioning at the Arar orals (which I saw, months before she was nominated) that not only underlines her tough intelligent questioning, but suggests she is sane on the subject. Still, we have some arguing that if anything she might not be empathetic enough, too concerned with technical details. See also here (my reply to Emily Bazelon's recent article regarding her ability to persuade people to a conservative ruling, perhaps reflective of her ADA background).*

Really, Republicans should be singing her praises, but they have to play their games, particularly the idiots. Given recent elections culled many of the sane ones out, this group stands out more these days. Meanwhile, the opponents on Bush v. Gore are joining together to raise a federal claim against Prop 8. Many advocacy groups are rather wary; as well they should be. I know the Ninth Circuit is favorable venue, at times, but why not raise a claim in a state (there are many in that circuit) that does not provide full benefits, except for the name?

This "pick your battles" philosophy was cited in the discussion of the Prop 8 ruling on Grit TV, which can be viewed on Free Speech TV. Richard Kim of The Nation reaffirmed my point from yesterday, suggesting California's domestic partnership law provided all the benefits of marriage. No, it didn't -- it might now, but before the last ruling (on this point, upheld in this one), the law supplied nine less benefits. A small number overall, surely, though some were of some importance, such as the need for common residency. Keep your facts straight.

So to speak!

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* The Bazelon article reflects Judge Sotomayor's work ethic and intelligence as well. This sort of thing allows one to accept a certain gruff side, her temperament an issue for some, something that can be a plus if handled the right way. See this relatively positive article.

A Bit More

And Also: The Mets continue to look like injury central, putting two starters in the field along with back-ups and call-ups last night, but manage to win all the same. Livian again showed why he is a good fit, even if some bad starts will be mixed in, particularly later on. And, Gary S. almost already supplied what his bare minimum salary (thanks Detroit!) warrants.

Two basic things come immediately to mind in respect to the Sotomayor nomination. First, a nomination is a product of many things, so concern by a few (exaggerated*) she is somehow not a super genius is stupid. Second, some are upset she is too moderate, apparently forgetting who appointed her. The nomination -- including the life story and attempt to provide a bridge between different groups (the hysteria from some that she is "divisive" aside) -- is vintage Obama.

As to the Prop 8 case, anti-Prop 8 side was sure to denounce the result, which is not surprising. But, I fear (as this local article suggests) they might give the other side more credit than they deserve. A good case can be made that they won the battle, but lost the war. Even conservative blogs can point out that use of this case as a warning sign of "judicial activism" or whatever is of limited merit. As the ruling noted, same sex couples still might:

choose one's life partner and enter with that person into a committed, officially recognized and protected family relationship that enjoys all of the constitutionally based incidents of marriage

The narrowness of the effect of Prop 8 helped the majority underline how the measure was an "amendment" not a "revision," that latter needing involvement of the legislature. The label "marriage" matters, including in prestige, social cachet, and to promote true equality. The promotion of inequality, even in small ways, is a bad thing. But, civil unions (or whatever they call it) and strict scrutiny is more than New York offers. Those in the long battle for equality in this area know the importance of having perspective, realizing important victories can be incomplete.

As this ruling is protested, hopefully its effects will be put in perspective. The cheer on other side should be come with something of a bitter aftertaste.

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* The link provides a typical defense from the legal community of her brains and qualifications as a whole, including a reference to a case she joined entitled U.S. v. Santa. She is obviously anti-Christmas. Other perspectives are supplied, including a preview of the tired criticisms we will have to suffer through, likely given half-heartedly for the most part.

BTW, Obama really did not have to work hard in introducing her. Just slightly edit Bush I's remarks:

I have followed this man's career for some time, and he has excelled in everything that he has attempted. He is a delightful and warm, intelligent person who has great empathy and a wonderful sense of humor. He's also a fiercely independent thinker with an excellent legal mind, who believes passionately in equal opportunity for all Americans. He will approach the cases that come before the Court with a commitment to deciding them fairly, as the facts and the law require.

After all, he nominated the woman too. Then, many attacks can be turned around fairly easily. Some find her rulings dull, others pointing to the them to commend her attention to detail. Quotable, see Scalia, is not always worthy of quotation.

Justice Sotomayor

And Also: With one dissent, who felt the discrimination was central enough to be an illegitimate "revision," Prop 8 was (as expected) upheld. But, existing marriages remain legitimate, out of state marriages not addressed, and just the label is at stake. Strict scrutiny in all other cases apply to homosexuals. Bigots are "very gratified" that they in effect have civil unions in their state.

Judge Sotomayor was an assumed frontrunner before Jeffrey Rosen's piece, so this isn't a big surprise except that Diane Wood appeared to be in the lead (a case of misdirection?) recently.

She sounds like a good choice. Some of us would love someone more like Pamela Karlan [btw, a ruling today suggests that Elena Kagan might not be as liberal as even those in the current liberal bloc], but we need to know who we are dealing with here. Still, if Obama has to replace Stevens some time down the road, I will still be looking for such a pick. And, a look at her opinions [by all means, look at them, as Scotusblog and others have] suggests a Souter-like centrist with liberal tendencies. He too can be sharp at orals.

She has a great background,* her comments on what judges really do sounds realistic and honest (both as to "policy" and how background influences judging), and some people whose opinion I find worth listening to suggest she has a good legal mind. [Follow the links.] She also appears to have a sense of humor and an ability to hold her own, a sense of confidence that some deem arrogance. Maybe, others can be found who are better at the legal craft, but "qualified" has loads of components, and she fits them rather well overall.

Some allege she simply does not have the skill of a Judge Diane Wood, thus the nomination will be "hopelessly divisive." How can we take such a frame seriously? Slate cited a Wood opinion supporting the rights of a convicted child molester to go to public parks even though he was caught near one with bad things on his mind. No link necessary -- it underlines any Obama pick will have some controversy. Jonathan Turley provides doubts here, but count me unconvinced [comment by joanneleon hits home too], especially when he decides he has to target Thurgood Marshall and points to opinions she "joined."

Some might be concerned with her pre-judicial experience focused in the Manhattan DA's office and commercial litigation (though the litigation experience provides a useful perspective to this Court all the same), but she also received praise for her pro bono work:

For 12 years she was a top policy maker on the board of the Puerto Rican Legal Defense and Education Fund. She was also on the board of the State of New York Mortgage Agency, where she helped provide mortgage insurance coverage to low-income housing and AIDS hospices. In her leisure time she became a founding member of the New York City Campaign Finance Board, which distributes public money for city campaigns.

It helps that Bush nominated her to the district court and Clinton to the appellate court, furthering a uniting message. She is a good age and has a long experience in professional life behind her, both public and private. I'm sure she will disappoint me in various ways, they all do, but such is life. If the other choice was Judge Wood, overall, I truly doubt she would have been as a whole -- taking everything into consideration -- such a better choice. Might be wrong, but doubt it.

Anyway, she works for me.

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* It does not hurt -- for me at least -- that she is from the Bronx. By chance, a columinist in a local paper referenced confusion over her neighborhood today, before her nomination was announced.

She also is a Catholic, which would make it a 6-3 Catholic Court, but the votes of Brennan and Kennedy suggests as much as the views of millions of Catholics who voted for Obama, that we should not look at this too stereotypically. Anyway, as President Obama's recent speech at Notre Dame suggests, he has some clear sympathies to at least a strand of Catholicism.

Viola Canales

Obama's choice for Supreme Court is forthcoming. This sounds like someone who might make a good judge or public servant generally ...

Viola Canales ’79, J.D. ’89, grew up in a close-knit, highly religious community in the south Texas border town of McAllen, when it was at least 80 percent Mexican American. ...

At 48, Canales has held many jobs: U.S. Army captain, litigator, federal business administrator, and recruiter for women and minority CEOs. But it is in writing fiction, which she now does full time, that she feels most empowered to improve young lives. ...

The intense faith and mysticism that surrounded Canales as a child turns up in [her writing] ...

Canales says her father was thrilled when she went to Harvard because John F. Kennedy had gone there; it was the only thing he knew about the university. Yet she was restless as an undergraduate and left twice in search of “adventures.” (During one summer she worked as an organizer with the United Farm Workers union.) The second time she left Harvard was to complete officers’ training at Fort Benning; she was later stationed on the border of what was then West Germany and also worked on the Hawk and Patriot missile systems. Returning to Harvard, she concentrated in government and graduated in 1986. Her next step, the law degree, would help her improve “equality and opportunity for everybody, whatever their culture or race or gender,” she explains. “I feel peoples’ lives are about evolving and finding their don—a supernatural gift that everybody has that’s used for the good of a whole community—and being given a chance to give their gift.”

After graduation, she joined O’Melveny & Myers in Los Angeles, where she worked for the commission that investigated the Los Angeles police department after the beating of Rodney King. In 1994 the Clinton administration appointed her a regional administrator for the U.S. Small Business Administration (SBA); she helped guarantee $3 billion in loans annually in California, Nevada, Arizona, Hawaii, and Guam. ...

[Talking about her book] To change an outlook, you have to be shown something that is positive, that is beautiful,” she says. “We all need a better world right now. America is stuck; it has lost its magic in life and people live life as work. I think we only start dreaming again with myth and spirituality in our lives. Only then can we conjure up a better society.”

She actually has an important connection to another candidate, who perhaps might be a good replacement to Justice Stevens. After all, Alito is more conservative than O'Connor. Either way, said connection would probably make an excellent justice and could bond with John Roberts given she also was a repeat advocate in front of the Court.

Oh, and there is a pretty good chance neither will be nominated this week. Judge Wood is the favorite. Given the reality of the situation, that will do.

In Memoriam

It is impossible to know war if you do not stand with the mass of the powerless caught in its maw. All narratives of war told through the lens of the com­batants carry with them the seduction of violence. But once you cross to the other side, to stand in fear with the helpless and the weak, you confront the moral depravity of industrial slaughter and the scourge that is war itself. Few books achieve this clarity. “The Photographer” is one.

- Chris Hedges

Rachel Maddow recently interviewed [Friday] two people involved in this visual history of a Doctors Without Borders mission in Afghanistan in the 1980s. As Hedges, who has written about war from first hand experience noted, we are shown "the damage done to bodies and souls by shells, bullets and iron fragments, and the frantic struggle to mend the broken." And, some by choice or not so voluntarily have gone into to the breach. No wonder so many join this sentiment:

But this day we mourn more than our own military dead. Yes, we are veterans, but we are also VETERANS FOR PEACE.

Abolish war and all the mourning it causes.

For this is the true way to honor our military dead. We do not do them a disservice to recall that all too often their service was at the hands of mismanagement and that the battles fought all too often could have been avoided. The horrors of war lead to the sane to be horrified, even in the midst of the "better" conflicts. From our vantage point, Northern "Cooperheads" who wanted to end the Civil War midstream might seem misguided at best. Then, we see the hundreds of thousands dead, many after the end was crystal clear. The madness of war continued.

Last year this time, I cited a reading of Cindy Sheehan given by Marisa Tomei, which ends by noting that she [Cindy] might be talking to the choir, but the choir simply is not singing loud enough. And, the choir needs to continue to speak loud and clear, particularly true progressives in Congress. As Rep. Donna Edwards says, Obama needs "tough love" as much as anyone else. This includes when he continues to promote war and bloodshed. Or, when he and his administration (judicial picks?!) promote excessive executive power overall.

So, honor where honor is due, and respect and service where due ... including by continual resistance of a philosophy and practice that all too recklessly provides more people to remember and honor in this fashion.

Saturday Quickies

New books on side panel. Elaine should be happy with this birth control news. And, it is not necessarily a matter of it not being "just" ... the question is if the recent pregnancy discrimination ruling applied the law right. But, the two can go hand and hand.

Meghan McCain Helps The Conversation

And Also: After Keith covered Obama's speech positively and attacked Cheney (low hanging fruit, but we can't ignore it), Rachel opened her show attacking the preventive detention proposal. Meanwhile, the latest plot caught in the planning stages is labeled "aspirational." Tricky, but conspiracies can be targeted if the planning stages are real enough. Unclear.

The Obama v. McCain moment was good political theater, but meanwhile another side of sorts gets play in the news. No, not the desperation of the likes of Keith to hang on to Sarah Palin, including bringing in public appearances of Bristol and her former boyfriend. No, I'm talking about Meghan McCain. Someone over at the NYT blog finds her embarrassing, something I bet her dad thinks sometimes. See also, Wonkette.

But, I think overall, she comes off pretty good with the proviso that without her father, she would not be saying anything particularly newsworthy. Or, rather, Meghan McCain would just be representative of many of her generation, educated well-off independent minded sorts that the current Republican Party is not doing much to attract. Such is her message, after all, and she should know -- she voted for both Kerry and McCain. MM became a Republican on Father's Day when her dad was running. If he was not, one wonders if she ever would have.

Here’s what I’ve never understood about the party: its resistance to discussing better access to birth control. As a Republican, I am pro-life. But using birth control and having an abortion are not the same at all. Actually, the best way to prevent abortions is to educate people about birth control and make it widely and easily accessible. True, abstinence is the only way to fully prevent pregnancy and sexually transmitted diseases. Still, the problem with abstinence-only education is that it does not make teenagers and young adults more knowledgeable about all the issues they face if or when they have sex—physically and emotionally.

This is an example of her blog entries at The Daily Beast, which along with her going on Colbert to say she is "pro-sex" is the sort of thing that got attention long before now. She almost seems ready to join Feministing or something. She seems a stark contrast to many Republicans, but she is not really too much different than her dad -- who is a media hog and has not shied too far away from his "bad boy" rep in the past. The problem, of course, is that the current Republican Party simply does not fit here, even if it could potentially do so. Let's be honest here. It's why she voted for Kerry, I bet. More:

Putting it bluntly, we’ve done a disservice to our violence problems by making the political argument about guns instead of whatever causes people to be violent in the first place. Anger, alcohol, drugs, economic hopelessness, reckless driving—they can all precipitate tragedy. Simply removing guns from the equation does not solve the larger problem. Worse, it gives the wrong impression about what can and should be done to help those who are troubled. The real solution to preventing gun violence is not taking away the tools, but tackling its causes: poverty, inadequate health care, mental illness, joblessness, inadequate housing, and poor education. Desperate people will make anything a weapon. We need to eliminate desperation, not guns.

Sound enough ... up to a point. I think MM helps the conversation, so overall, I think she is a positive influence. Let's remember she is not Bristol Palin; she is in her twenties, and a graduate of Colombia. (Well, that explains it!) MM comes off as a bit of an airhead at times, but the same can be said for many much more well paid talking heads. Still, my concern would be to force her to make some hard calls. Pro-life? Fine. Do you think this complex choice should be compelled by law? Pro-gun? Fine. How about things like this?

Sometimes, it is necessary to walk before you run, and her sanity on birth control, gay rights,* and so forth is an important message. But, if she wants to speak out, particularly on some liberal friendly outlets, she has to go the next step. After all, if she wants to save the party from itself, talk about realistic policies, we also have to know the answers to those questions too. I'm okay with her not talking about Palin. Her saying she simply does not know much about the economy is fine, since she was not trying to run for President. [Does make it easier for her to defend the Republican line!]

She has to explain a bit more about the breadth of her positions all the same. For same sex marriage? Cheers! If you think abortion should be illegal, the bloom might be suddenly off the rose. Colbert is right though ... she does not quite sound Republican. This only helps her, of course.

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* Yet again, the "guest columnist" for the NY Daily News is ten times better (in nausea level alone) than the regulars, including the likes of Charles "Obama is a big phony" Krauthammer, doing his regular channeling of Cheney.

Empathy and Animals

And Also: Others also thought of Justice Jackson's dissent in Korematsu when considering Obama's proposal to formalize preventive detention into law.

Judges are human, they will use empathy sometimes, need to understand -- at times with some emotional connection -- others to judge various things, they will use empathy. It is in effect a component of judging generally. The attempt by some to limit this to special situations is mythical, even if they might not like the fact judges they frequent leaned one way or the other in their empathy. A totally objective standard might be the ideal, but it's at best a legal fiction. A citation in a recent dissent by Justice Ginsburg is fitting:

[I]t might appear to the lay mind that we are treading on the brink of a precipice of absurdity. Perhaps the admonition of Professor Thomas Reed Powell to his law students is apt; "If you can think of something which is inextricably related to some other thing and not think of the other thing, you have a legal mind."

I also saw reference to the need for empathy in judging mentioned in an article discussing how recognizing the interests of animals is important in formulating an ideal system of justice. Understanding the law requires "empathizing with" the judged, and a failure to do this for some is factored in:

[P]art of the reason John Hart Ely argued for special protections for discrete and insular minorities was not just that they have lesser access to the political process, but also that society tends to lack empathy toward them due to prejudice, or simply due to the lack of accurate knowledge that arises from discreteness and insularity.

It is an interesting article overall by someone who periodically provides essays for Findlaw. But, she is not the one who sometimes references interests of animals, so I was a bit surprised when coming across it. The article has an interesting proposal per taxation:

For example, in the tax code, exemptions for dependents should logically cover everyone in a household who is legitimately dependent on others for his or her sustenance—including non-human companion animals. Such exemptions attempt to recognize the reality that a household with dependents must use some of its income to care for them—and that reality is no less genuine when it comes to non-human companion animals than when it comes to children. Though the two groups have very different needs, both have needs that require money to satisfy. Of course, the current tax code is not a model of analytical consistency and has been profoundly affected by political bargaining. But, again, society should strive for an ideal—and an ideally just tax code would include non-human animals as dependents.

IOW, it would make sense to allow people to use animals as dependents on their taxes. This makes sense for various reasons. We get deductions of varying amounts for various things, so why not something for companion animals, particularly if they are strays and/or taken from shelters or the like? It might be logical to give special preferences to these, even if it is a relatively small amount. Of course, the positive value of animals generally can be a reason to consider too. Finally, possibly, this can be limited to some animals (cats/dogs over goldfish).

The author also favors use of federalism to provide experimentation on the subject. The whole article, though it is somewhat legalistic in tone, is worth reading.

Few Things

And Also: I recently gave blood in one of those bloodmobiles, this time parked in a hospital parking lot. Looking out a little window as my blood flowed (seems like the needles are better these days -- faster), I can see the cars and all. I gave blood in one of those things before, but not near a window. Again, it's simple, why not try it out? Free juice and cookies!

Speeches: Glenn Greenwald [my reply] and TPM are two places to go for links and analysis of the Obama and Cheney speeches. Cheney has been promoting executive power since the 1970s; unlike the Bush years, he now finds being out in the open the way to go. And, FU to Republicans who hope for some restraint to salvage their chances for the future.

As to Obama, GG's tone today is suggestive -- some nice words, some bad words, but actions will speak the loudest. Did we really expect more? Is there not enough there to move forward with? Of course, we need to at worse make it the "centrist" position with proper pressure against him when necessary. And, as GG's updates note in particular, there are some dangerous "flexible nice sounding policy over rule of law" tenor to Obama's sentiments that still rests on perilous principles.

Sexist Ad on Playboy Channel: I admit that at times I am not uh appropriately horrified by some of the stuff posted over at Feministing. Take this ad. It has a Playboy logo at the end of it. If it was played on regular television, sure, it would be tasteless. But, if you are going to play it on Playboy (or perhaps Spike TV), it would appeal to the demographic of the channel. Reminds me of a Seinfeld episode where George mixed eating a big messy sandwich with sex.

Baseball/Television: The Bad NY Mets are back. I didn't realize watching baseball was supposed to be depressing. I guess it's sort of like the value of pain for your soul.

Meanwhile, now and again, I catch parts of Reba and The Wizards of Waverly Place (allegedly taking place in lower Manhattan). Both have charm, the former rather funny and poignant at times though it is somewhat hit and miss. Good ensemble cast. They have a certain skillfully playfulness (Reba having shades of Roseanne too with somewhat less of an edge at times) that seems to be lacking from many shows these days.

Though WWP is clearly geared for teens, it is that playfulness that appeals. As with True Jackson, the show still retains its mojo contra (all too often these days) iCarly.

If You Meant That Reid, Say That!

And Also: I did not find, except for the music, the preview episode of Glee that good, contra to various reviews. The Forgotten Network: Dumont and The Birth of American Television by David Weinstein provides an interesting condensed history of this forgotten pioneer of television.

[The footnote is basically a long aside on a different topic.]

"I can't make it any more clear," Reid said. "We will never allow terrorists to be released in the United States."

The Obama administration has been weighing a plan to free in Virginia a half-dozen ethnic Turk Muslims from China called Uyghurs, who have been cleared of being a threat.

Reid also suggested hard-core terrorists shouldn't be locked up here, either.

The Senate's No. 2 Democrat, Richard Durbin of Illinois, said Congress will provide funding after Obama announces his plans for closing the prison, which is expected tomorrow. [plus a chance of snow, perhaps? - ed]

-- NY Daily News

Rachel Maddow discussed Sen. Reid's remarks about not "releasing" Gitmo prisoners [sorry, "terrorists," a glorified bill of attainder that assumes guilt] into prisoners on U.S. joil, which is unsurprising since (IIRC) some Air America host (I'm thinking Franken) once noted the number of convicted terrorists we already have in our prisons. She from time to time notes how Obama is continuing Bush policies and rhetoric. RM has already noted that we already have terrorists in our prisons, including in a past show showing Hilzoy's* spoof of a Republican scare video. Glenn Greenwald today covers this issue, posting another spoof calling for us to "protect our prisons," the likes of Charlie Manson clearly no match to some alleged terrorist.

A past guest was brought on to discuss the matter, a Democratic congressman with a name matching that of the old DA on Law & Order. He suggested what the Senate Dems are trying to do here. As Sen. Durbin noted as well, the idea is that the Democrats want a clear plan plus true involvement of Congress. Now, such "involvement" should include Congress actually setting forth some legislation -- via its expressed powers over captures and federal prosecutions etc. -- but Senate Dems probably would be satisfied with something less complicated for them personally. Power over funds provide a stick [a "blunt" one] -- apparently meaning something now that Obama is in power. Before, such refusal to provide funds was apparently no match to minority filibusters. Whatever.

The lower expectations is suggested by the guy appearing to be partially satisfied with Obama coming out with military commissions that did not seem to match what the congressman's own plan suggests is ideal. Hey, it's something, so great! All the same, the desire for a real plan etc. does not require Reid's stupidity, and the guy would have been more respected by me (Reid is not after all his leader ... Pelosi is), if he showed some ability to chew gum and walk at the same time. Rachel only partially called him on it, suggesting Reid was feeding Republican scare tactics, not reminding him that we have convicted terrorists and other scary guys in our prisons already. Including a sniper who acted in nearby Virginia.

No wonder any support for civil liberties and so forth is said to come from "the left." Is nuance and intelligence also so limited?

And now: I wrote a draft of this before seeing the news cited by the link in the opening quote. Meanwhile, Durbin and Feinstein (raising concern for lack of a plan) speak some sense here.

At the end of the day, the six senators who voted "nay" turn out to be among the most respected in the chamber: Durbin (D-IL), Harkin (D-IA), Leahy (D-VT), Levin (D-MI), Reed (D-RI) and Whitehouse (D-RI). The amendment at issue was added: "To prohibit funding to transfer, release, or incarcerate detainees detained at Guantanamo Bay, Cuba, to or within the United States." There was no immediate chance of that happening and the framing clearly benefits Republican scare tactics, even if nudging the Obama Administration was defensible.

Update: Durbin's statement quoted at the start is curious given the final result. Digby and others suggest this amendment is really a CYA move for Obama, even though it is uh technically supposed to be a criticism of the guy. How sneaky. I don't know ... either way, it's stupid.

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* Hilzoy is a professor of philosophy off her blog, but often discusses legal related issues, at times putting in a proviso that she is a legal novice here. Her analysis all the same tends to be spot on and those with more legal training who comment on Obsidian Wings tend to reassure her that the commentary is on the money. The basics are just not that complicated, though the nuances require some study of the issues, though (as many law blogs show) many lawyers who claim special knowledge are off base a lot too. See also various opinions on the Supreme Court.

This helps me some since I write about legal topics though the proviso on my profile underlines I do not claim special expertise. I have studied and kept abreast of various legal issues for quite some time now, so do think I have some more knowledge than some people. But, given the broad terms of some of these legal debates, you can provide much to the table with much less reading than I have. This is particularly so since the law involves so many areas, let's say in the area of negligence, where a non-legal level of expertise can be helpful.

The value of a "popular constitutionalism" also pops up here, apropos of a collection of Supreme Court dissents edited by Mark Tushnet (I Dissent). Tushnet supports a strong role for the people themselves in carrying out the Constitution in practice, suggesting the limits of constitutional review by the courts. Others note that the courts often follow the popular will in many ways at any rate, while law professors like Jack Balkin suggest the confirmation process influences this as well, judges products of a sort of continuing constitutional convention, necessarily influenced by the norms and understandings of the day.

This sort of thing makes appeals to originalism as a power restraint and attempts to reject empathy in judging (even limiting that rejection to "litigation") appear to be even more myth making than fact than common sense itself does. The links point to debates I had on the issue.

Various Things

The person who helped write (and later was concerned it was too lax) FISA, worked on the Biden response to the Bork nomination, was a pioneer in the use of hyperlinks, etc. has died. Meanwhile, certain anonymous Obama sorts appear to think the 6A is not really traditional. Does this moron realize we have "terrorists" in U.S. prisons today? We look like idiotic cowards.

"The Stakes at Notre Dame"

And Also: Some words on CJ Roberts and the two rulings handed down today by the SC. Hopefully, this is the turning of a corner, a reminder of a little known "conflict [that] claimed 70,000 lives, destroyed communities and turned many parts of the idyllic tropical island into a fortress." And, should Goya nectars be taxed when potato chips are not? Really!

Prof. Douglas Kmiec is a Catholic and Republican, who supported Obama for President. Kmiec is also strongly against abortion. Contradiction? He thinks not:

Unlike Obama, I regret to say the current Republican Party thrives on demonizing its opposition to win elections. Without ideas, there is only name-calling. That’s too bad because additional avenues for strengthening a culture of life open up when we avoid demonizing those who disagree with our Catholic view that life begins at conception. Talking strongly pro-life, Republicans often do little, promising that some judge not yet appointed is the answer or advocating leaving it all up to the states to decide, seldom acknowledging that many, perhaps most, states would end embedding the “legal status” of abortion—exactly contrary to the cardinal’s thoughtful instruction.

Some here can rail at Democrats killing babies all you want, but even President Bush said that the time is not right to criminalize abortion. And, criminalizing it won't stop it either, surely overturning Roe won't, since lots of populous states will legalize it just as much any way. [It will selectively reduce it somewhat, perhaps, while encouraging tragic results including dangerous illegal abortions.] Those who truly care about life see the answer is much more complex.

This includes many American Catholics, a majority of whom reject their Church's stance on various major issues. As noted here ["The Stakes at Notre Dame: Words From Rome Change The Debate on Inviting Obama" By E.J. Dionne], the liberal component of Catholics is a powerful force in this country, even showing some signs of being on the Supreme Court.* The chance for some common ground is shown even from up high, as the below op-ed suggests.

Reading the President's remarks, I think he did a good job adding to the conversation. As to mixing church and state, he cannot ignore this issue even if he wanted to do so. And, his message of unity and respect fits the rules of the game too. This is what freedom of conscience means in this country.

[And more here]

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* Justice William Brennan was Catholic. Kennedy is Catholic and voted in support of the rights of homosexuals and the deep care we need to take when considering whether to execute someone.

[personal whine deleted]

Why It Matters

And Also: According to conservative law professor Michael Stokes Paulsen, it is the OPR investigating the Bush OLC lawyers like Yoo who are the bad guys. I join the criticism of this lame ass selective concern for ethics here.

Update: H/t GG, cheers to someone who admitted error for her remarks about how the "American people are [just] interested in looking forward." Sometimes, especially in the heat of the moment on talking head shows, you will say something you later will see was wrong. We all do it. When you actually admit it, you will in the long run, only be more respected by those that matter.

Per today's Glenn Greenwald post, why should we care now that Obama is in power? First, I like this adjective cited by one of the comments, "hopey-changey." Second, the below is my own comment:

Torture is illegal. It is immoral ... immoral according to what liberals say we stand for. We were lied to. It was done badly. It was controlled by a cabal who kept even top military and civilian people out of the loop. It was done not only for our "safety," but to justify lies and b.s. To further conservative policy.

This is why this all matters. Some argue that new people are in office, so hey, we won't do this any more. But, putting aside the disdain for this Obama love, they do know they won't be in office forever, right? If lies and illegality is deemed unimportant, it will again occur in spades. Particularly since some parts of government simply will not be always controlled by people you trust.

This is not rocket science. I actually am impressed there was so much push back even from strong conservatives, people on the whole "loyal Bushies" ... who were (call them naive or fools or not) horrified at what occurred. Even John Ashcroft drew the line at some point. Why? Because they had some basic respect for the law and institutions and morality.

Doesn't matter? Fine. When truth and the law are ignored in the future, don't come whining. They don't matter. I thought these people were part of the "reality community" or something.

Some think in terms of policy.* It is not done any more, so why worry? We have more important things to do. But, torture should not be a matter of policy. It should be a matter of law. This requires enforcement, including retrospectively, just as we punish people for crimes they did. Most importantly, telling us what "the people want" when they do not want that, in effect telling them not to be so idealistic, to in effect spit on those with the audacity to care for more is garbage.

Guard against the "hopey-changey" without real teeth.

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*As Digby noted:

The argument against torture is slipping away from us. In fact, I'm getting the sinking feeling that it's over. What was once taboo is now publicly acknowledged as completely acceptable by many people. Indeed, disapproval of torture is now being characterized as a strictly partisan issue, like welfare reform or taxes.

So, we focus on Pelosi, not the torture itself. Form/politics over substance.

Water Will Find An Outlet, So Why Not Be Honest?

And Also: Miracles of miracles, the Mets actually gave run support to their ace, even when he looked a bit human. But, they still made two errors, and another costly play that could have been made. His apparent tendency to give up a run after errors -- saw it again here -- suggests the guy is human. Anyway, good outing, and good to see Putz is okay.

The below is a reply to this article on the news that a priest got caught playing around with a woman on a beach.

I find some of the things noted in the article questionable. For instance, it was noted that Father Cutié does not oppose the celibacy rule. I recall watching a clip that implied just the opposite. And, it sounds to me that he does not want to be some sort of spokesman, but does he really support the current policy? Some accounts say "no" he does not:

The Rev. Alberto Cutie, who lost his church and radio show last week after the release of the photos, also said while he still believes in celibacy for priests, he thinks it should be optional.

"I do believe that people should be given the option to marry or not to marry in order to serve God," he said. "But the Church, see, has tradition and practices that are part of wanting to do what is right. I think we've all have ideals, and we have ways of living, and we want to do things right. But the truth is, sometimes we fall short. And I fell short."

[The article also quotes the "I don't want to be the anti-celibacy priest," which now is put in context.] But, "optional" is not the idea, is it? You cannot say "well, I think birth control or divorce is on the whole bad, but sometimes, well, I think we can choose it." Note that the woman he was caught with is divorced. Divorce is not allowed in the Catholic Church though (as Sen. Kennedy's ex-wife will tell you) there is an arbitrary annulment process available in various cases. Water tends to find an outlet, no matter what the "rules" say. As the article notes:

In the Catholic tradition, sexual fecundity is a good thing. Such Catholic countries as Brazil, France, Italy, and Spain are hardly known for their puritanical sexual mores. Even in northern climes, the large Catholic family is proverbial.

Some of these countries are also well know for sex before marriage, adultery and so forth. That is, they violate widely held Catholic morals. So, let's not be coy here, hmm? We are then told:

But the priests who stand in the person of Christ at Mass, who dispense God's mercy in the confessional, who baptize our children and bury our dead—we Catholics expect them to be sexually abstemious. They are supposed to be holy, and holiness has always and everywhere been associated with purity. For a variety of complicated historical reasons, the purity that matters most when discussing the Catholic clergy is sexual purity. And sexual deviation, more so than any other of the many forms of human sinfulness, brings out the tabloid editor in all of us.

Now, someone else noted that one of those "complicated historical reasons" was that in feudal times, celibacy had property implications. I don't mind that over time old mores change their basis some, just as marriage has over time become more of an equal partnership between men and women than it once was (just as the "male as breadwinner" ideal replaced one where the wife often had a more equal role in home economics, including producing clothes and raising food).

But, let's not b.s. -- to be blunt -- here too much, okay? First, "purity" is a complex quality, underlining by the fact that so many non-Catholic clergy are sexually active, in fact, often they are expected to get married (fornication might be deemed impure but not all types of sex). Again, some have written -- including with cites to biblical texts -- to show how this is understood to be scripturally compelled. Some even suggest this supports the idea of same sex marriage.

Next, if you want to talk about sexual deviation, and the "tabloid editor," not having sex is considered "deviant" in this culture. Or, generally speaking, probably. This helps explain why certain people look upon priests with a certain cynical eye, some assuming that Catholic priests are probably statistically more likely to be homosexuals.

We also have mixed up ideas about sex in this country -- considering it "impure" to be baptized by someone who has sex personally seems a bit strange to me (fwiw) -- and artificial rules that the most Catholic friendly countries simply do not follow are not helpful. The article suggests the celibacy provides a sign that sex is not everything. It very well might do the opposite -- it highlights it, makes it taboo, in effect, can pervert it. It is like being against birth control and abortion. Is this really the way to truly, in honest practice, promote the "sanctity of life"?

Father Cutié suggests it should be a choice for a priest not to marry. If a member of the clergy believes that his or her path is to serve the church and congregation, foregoing a family of their own (or rather, certain type of family), it might be the right choice for them. But, let's fetishize sexual purity so much in the process. Just as a vow of "poverty" might not be too harsh if you live and work in a middle class parish that very well might be a step up from your origins, there are various ways to be "pure," and a blanket rule for such a worldwide institution of sexual abstinence is not a realistic path to purity.

The inability of the article to be fully honest seems to only underline this. My concern here is not a blanket rejection of doctrine, but a plea for it to be handled in a more honest way. Many active Catholics would agree.

Media/Right Spin -- Pelosi: Heads We Win, Tails She Loses?

And Also: The Mets had another come from behind win, Livian doing what a fifth starter must do, gut it out, and limit the damage. The SF closer had an "Armando" moment. And, the team showed some sign of dusting off their subpar Braves series. Will they now actually give their ace a win?

A bit of media criticism, with the priviso that I am not singling out "Today's Papers" over at Slate per se, but suggesting this sort of thing is representative:

The Washington Post leads with the latest in the case of What Nancy Knew—in this episode, CIA Director Leon Panetta rejected Speaker Pelosi's claim that his agency had not properly briefed congressional leaders in late 2002 about interrogation techniques at Guantanamo Bay. ...

Accusations and conflicting accounts continue to fly in the CIA interrogation-techniques kerfuffle. Former Sen. Bob Graham* backs Pelosi, saying that the CIA did not adequately inform members of the Intelligence Committees of what techniques were being used on detainees at Guantanamo, while former CIA director and former Rep. Porter Goss said they were. Either way, it's like Kryptonite for the otherwise-durable Pelosi, although the NYT calls it "undisputed fact" that even if she had been fully knowledgeable about what was going on in September 2002, she would have been relatively powerless to stop it.

First, when you say "either way," are we supposed to forget that Sen. Bob Graham -- who some might think more trustworthy than Goss (at least canceling him out) -- BACKED Pelosi? He's mentioned in the very same sentence as two former CIA guys. Is this some sort of 2-1 decision deal?

Second, let's see how much CIA Director Panetta (no bias there) "rejected" Pelosi:

Let me be clear: It is not our policy or practice to mislead Congress. That is against our laws and our values. As the Agency indicated previously in response to Congressional inquiries, our contemporaneous records from September 2002 indicate that CIA officers briefed truthfully on the interrogation of Abu Zubaydah, describing “the enhanced techniques** that had been employed.” Ultimately, it is up to Congress to evaluate all the evidence and reach its own conclusions about what happened.

It was also not "our policy or practice" to torture. But, we are supposed to accept the word without a large grain of salt (it is like Kyptonite!) of what they said, even if Sen. Graham and Pelosi both say they misled or (in Graham's case) got details (like when they met him) wrong.

Anyway, saying something is "policy or practice" is really saying it is not "official" policy or practice. Only the fatuous (admittedly many) would take that to mean it wasn't done um unofficially. Finally, the guy said it was UP TO CONGRESS to evaluate. Pelosi supports a 'truth commission' authorized by Congress. Game, set, match! Wait ...

In another disappointment for left-leaning Washington watchers, Obama's expected announcement that he would continue to try terrorism suspects through the military commissions—which exclude certain types of evidence from consideration by the defense—drew cries of outrage from civil rights groups.

Slate should stop dissing center, right and libertarian Washington watchers that also support civil liberties and necessary government restraints. No really, they exist. They also don't like torture. Actually, some make it their business to remind us that "civil rights" really is just the concern of the right. The left are lying hypocrites. Thus, I think Slate should honor their service. (just a tad bit of snark there).

Anyway, as usual, Glenn Greenwald (that strong leftie! the left always opposes hate crime legislation, for instance) has a lot more on this sort of thing as well as Obama's latest "take out the trash day" release that suggests a bit of a disconnect with what he once seemed to say. A press query on the point made press secretary Gibbs look a bit too much like one of his predecessors, who also has that teddy bear look about him, actually.

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* Rachel Maddow had an amusing piece last night on Sen. Graham's excessive note taking that leads one to trust him more than Goss, more than Pelosi for that matter. At least, all other things being equal.

** "Enhanced techniques" sounds like a good thing, doesn't it? Enhanced can mean "to raise the value of" or "to raise to a higher degree." This either (especially using "techniques") sounds like a good thing or neutral.

"Empathy" and other obvious (?) things

And Also: Good article on safety of processed food, one a bit buried in the business pages. Jerry Coyne's Why Evolution is True is a good introduction to the subject

Some things are a result of mixed up reasoning that appear blatantly obvious, but this does not mean they are not problems of large significance.

The current meme is that somehow the fact that breaking the law might (though this has not been shown that well for the issue at hand) work or that you might be tempted to use it somehow means the law was not broken. Or, Pelosi was a hypocrite for covering up when she heard about it (though unsure what exactly was covered up), so well, that answers her claim that torture is wrong or that we need a truth commission. Likewise, many somehow think evolution makes God or morality impossible; we should not ignore btw that forty percent of our population very well might be somewhat in this camp. Simply being wrong is quite popular.

Or, that "empathy" means "favoritism," and is simply an illegitimate (or as one person I respond to on this thread argues, "extralegal"*) thing to seek in a justice. Oh, and, obviously that is somehow all Obama is concerned about. Professor Kmiec, a conservative, eloquently defends the term in judging against such b.s. reasoning here. This includes the apparently hard for some people to understand idea that someone can have "empathy" for both sides. I'd add that denying any give judge uses empathy now, even if they do not directly say so, is not believable either.**

Use of buzzwords promotes ignorance, the obvious deemed uncomfortable. This is helped by the fatuous. For instance, on the thread I linked above, someone asked for some primary legal source that used the word "empathy," as if some legal code (!) had some law in it that said "5(a)(1) to interpret the aforementioned, use empathy." One person explained that "empathy" was in effect playing devil's advocate, having some ability to understand or feel the interests of the other side.

The literalist who wanted to see "empathy" in an opinion called such an argument "intellectual and imaginative gymnastics." Thus, when Justice Brennan is repeatedly mentioned as someone who used empathy in his judging, it is either wrong or we need to find some ruling where he used that very word. Uh huh. That work with intellectual vigor and honesty too? Unless expressly mentioned in a good many legal opinions etc. are they also "extralegal" in nature? Not that words like "sympathy," "compassion," "insensitivity to the human dimension," and so forth (see my responses to pardonme) are not present in multiple judicial opinions.

Contra, when you have to determine what "shocks the conscience," when a "reasonable observer" will deem an act that makes his/her religion matter, the meaning of "evolving standards of decency must embrace and express respect for the dignity of the person," etc., most people will tell you empathy plays a role. Well, the honest ones. Likewise, the Preamble of the Constitution speaks of "justice," which in our system is not independent of the law -- it is clearly a component of it. This too requires some degree of empathy. Again, since judges are human, not machines, it will be shown in some form anyway.

Complaints turn out to be selective or of the "ignorance is bliss" variety, more the former. Some might not like the power and discretion this gives judges, but their way is not really better, even under their (biased) reasoning process. See my debate here, where I let the other person get the last word. There is nothing much more tedious after awhile than debating someone who adamantly insists it is the other side that is deranged (fill in your own negative term).

Anyway, the season finale of Being Erica was pretty good. The show basically had the best plots when family related. OTOH, perhaps we will learn next season why Dr. Tom in effect put Erica in such a tempting situation. If a family member's life was on the line, how did he expect her to act?

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* This entry works off my replies there; I also recommend Criticalthinkerr's comments.

** This article notes: "The best judges combine empathy with adherence to the rule of law." These things aren't mutually exclusive things, even if selective empathy might be.

Congress' Torture Bubble

And Also: This op-ed adds good perspective to the criticism of Wanda Sykes' remarks at the dinner a few days ago. I'd add part of the joke was a "well, if you want to act like this, this is what I think" -- a goose/gander sort of thing. But, sure enough, she showed a certain lack of creativity, like all those "Bush is stupid" jokes. For that, though he went on too long, you have to look up Colbert's gem.

Update: All the same, the value of Pelosi's actions now should not be denied -- she makes further action, at least some sort of truth commission, that much more likely. It keeps things active, so we learn more and more, including how torture was suggested (used?) to confirm Iraq untruths. Meanwhile, John Dean has a good discussion of some of the reasons behind Obama's one step forward, one step back approach that bothers many, including me.

Rather, his insistence is that the Speech or Debate Clause, at the very least, protects him from criminal or civil liability and from questioning elsewhere than in the Senate, with respect to the events occurring at the subcommittee hearing at which the Pentagon Papers were introduced into the public record. To us this claim is incontrovertible. The Speech or Debate Clause was designed to assure a co-equal branch of the government wide freedom of speech, debate, and deliberation without intimidation or threats from the Executive Branch. It thus protects Members against prosecutions that directly impinge upon or threaten the legislative process. We have no doubt that Senator Gravel may not be made to answer either in terms of questions or in terms of defending himself from prosecution -- for the events that occurred at the subcommittee meeting. Our decision is made easier by the fact that the United States appears to have abandoned whatever position it took to the contrary in the lower court.

-- Gravel v. U.S.

While we get a kabuki dance involving what Pelosi was told and how was she told it involving various techniques that reasonable minds describe as torture, "Vicki Divoll, a former deputy counsel to the C.I.A. Counterterrorist Center, [and] the general counsel of the Senate Intelligence Committee from 2001 to 2003" has an op-ed today that gets to the nub of the matter. Notifying a certain "Gang of 4" or "Gang of 8" of Congress alone was simply a perversion not only of true legislative oversight, but statutory law.

Yet another example where executive power and secrecy was stretched, surely partially with the aid and comfort of Congress, partially to avoid embarrassment or a true airing of controversial policy choices. See also, The Dark Side. The op-ed also hits upon a point that I simply never, I mean never, see mentioned, even on sympathetic moderate/liberal blogs or news programs such as Rachel Maddow:

The speech and debate clause of the Constitution shields senators and representatives from civil and criminal liability in the performance of their legislative duties. It would have protected those members if they had decided to march down to the House or Senate floor and denounce the Bush administration for engaging in torture, though that approach not only could have harmed C.I.A. operations, but also surely would have been political suicide.

I repeatedly have heard Pelosi imply that she simply could not talk about what was discussed as if it was some clear legal barrier. She and others have complained that this led them to be in effect blind, since they could not get advice from legal and policy minds. But, this is bullshit. BULLSHIT. Sen. Gravel put the Pentagon Papers, classified, into the Congressional Record. Is it "political suicide" now to provide a full account? If C.I.A. operations are illegal, the fact they could be "harmed" (obviously debatable) is not enough. We are talking torture here.

Why is a provision of the Constitution repeatedly ignored? Now, maybe, the Pentagon Papers aside, the provision is not deemed as "absolute" as it seems. But, it still should be referenced by members of Congress and the media more than it is. Then again, more on the targeted out homosexual translator [eloquent open letter] or blocking Dawn Johnsen / torture pictures because they might be embarrassing [As usual, Glen Greenwald is a good place as any to read about this] suggests the truth is sometimes just to hard for many to handle.

Anyway, Ms Divoll hits it home as to the need for proper congressional oversight, especially since this can very well include the system we have now -- if properly handled. OTOH, if you expect legislation to overturn ever extending executive overreaching, especially with a Democrat in the White House, good luck on that.

Speaking Against Speaking Up

And Also: The selective concern for Obama listing "empathy" as one of many criteria to replace Souter is well responded here by a professor at a conservative university. DL has more. Overall, lame. Judges are people. They will have some empathy. Kmiec's reminding that this can include empathy for people is an example of what happens when you move pass simple buzzword tendencies.

Speaking Up: The Unintended Costs of Free Speech in Public Schools by Anne Proffitt Dupre is an important book because it questions what many see as good things, providing a perspective from the other side in that the author not only teaches law but also was once a school teacher herself. OTOH, I put it down, since it was too biased. Let me quote from something I wrote elsewhere:

This book is written by a law professor and a former schoolteacher, so provides an important perspective, though one that at times was done in a somewhat slanted fashion.

For instance, and this is okay up to a point (it balances some works that do not provide enough a brief for the 'other side'), she is clearly supportive of judges giving more benefit of the doubt to school administrators. But, an important role of the courts is to do just the opposite: question the government when it claims a need to limit freedoms. This includes when children are involved.

This leads me to write this to suggest readers to bring some degree of caution. Let me touch upon a couple cases discussed to suggest where I am coming from.

The author starts with the Tinker armband ruling. Two problems at least stand out for me. First, she fails to lay some ground work to underline that this was not the first time the SC stepped into the schoolhouse & questioned the choices made by the state. They did so repeatedly by that point, particularly, but in no ways limited, to the flag salute case, that was framed by Justice Jackson (she discusses the case in a chapter on religion) as much of a free expression case as one about religious conduct. Second, the school allowed campaign buttons. An armband ... divisive ... a button by a peace candidate or a pro-segregation candidate ... or one that opposed the Civil Rights Act ... not divisive? The Court was rightly dubious.

[I would add that several cases supplied rights to children, even though they are less mature than adults, but -- like here -- often not as completely as secured by adults. For instance, In re Gault supplied due process rights to children, even though some argued the juvenile justice system was different. Why? Because the system's discretion led to abuses. But, the author here implies even a ruling that secures some hearing -- not a full blown trial or anything -- when a school suspends or expels someone is a dubious practice. As with concern for armbands, this is a bit absurd.]

Also, consider the Hazelwood school newspaper case. The author notes once that an appeals court "was persuaded by an article written by a law student." I went to the opinion and the article is cited, but before that, a line of court cases were as well. They did not "rely" on a student note alone. Ditto on another matter where the note was cited; not that such articles lack usefulness, particularly in a fairly new area of law as this was at the time. [Appeals court noted paucity of cases.]

Likewise, seriously, talking about sex and birth control is too controversial for high school students? The concern that the school would be assumed to be supportive of the view of the articles could have been dealt with by a warning. Again, not addressed by book.

I also don't know why it's an invasion of "privacy" to print personal stories with the consent of the person in question. When I talk about a personal experience, must I also get the consent of each and every person involved? Or, submit their opinions on the matter, particularly when no names are used? Is this really typical "journalistic" practice? Teens talk about personal experiences in class all the time. The quotes cited in the article were rather uncontroversial.

And, as Justice Brennan noted in his dissent, it is unclear if some "right to respond" was really central to the censorship here. But, the author dealt with Justice Brennan's dissent in three sentences. Likewise, the book failed to note that students weren't notified beforehand about the decision to omit the articles in question or why. Nor, that the articles were still distributed (without the students being punished), so the value of the school's censorship was debatable. Or, that such "prior restraint" hits to the core of the 1A, which the school said was to be the guide to the students here.

A balanced account would have did a better job covering such topics, even if it still supported the Supreme Court ruling in this case. So, in no way am I saying the bottom line of this book -- that there are "unintended costs of free speech in public schools" is wrong. I am saying that it would have been better if she made her case in a less ... yes I think it fair ... biased fashion.

This from a teacher is depressing ... it promotes ignorance and is counterproductive, since her bottom line is not wrong. And, you can very well find other books -- thus the value of this one -- that do not look at the issues with a fair and balanced eye. A recent book [God on Trial] by Peter Irons -- a strong supporter of liberal outcomes -- was valuable in that it gave each side a chance to have their say.

To be fair, some of them were not put down by yours truly, but so it goes. I stand by my criticism here all the same and do find similar ones come to mind when I read things through a different ideological perspective. Sandy Levinson, for instance, was the subject of some of my ire on his blog. It is hard to provide a truly balanced approach, and I commend all those who do a good job. Still, it is the best path, and fairly examining both sides also is often rather interesting and rewarding.

More on Rachel Carson

And Also: It is not worth watching a Santana start. He lost two games, including today's, on unearned runs. The others were nail-biters as well. Watching pitching duels where one mistake can screw things up is not my thing, especially if the other team (thus far not my favs either) benefits. Especially if that is what happens EVERY TIME. Bet the SNY team lovesss it though.

I recently referenced The Gentle Subversive: Rachel Carson, Silent Spring, and the Rise of the Environmental Movement by Mark Hamilton Lytle. I also got out Silent Spring, the copy having two short essays providing biographical details and comments from another scientist.

A few themes stood out. First, Carson is big on "ecology," in particular, the importance of looking at nature as a united whole, pesticides dangerous in large part because they harm more than the pests targeted. Second, Carson's religious background affected her work, viewing things in clear moral terms and believing in the sanctity of nature. Environmentalism is at times denounced as a type of religion, which might not be off base, except that it should not be seen in such a negative light. Lytle notes:

But where critics dismissed this faith as antiscience or paganism, historians such as William Cronon suggested that in the manner of what we call "religion;' environmentalism "offers a complex series of moral imperatives for ethical action, and.judges human conduct accordingly." If religion helps us to make sense of our lives in a world of infinite mystery and complexity, then Carson's approach to the natural world qualified as religious. Philosopher William James described religion as the "belief that there is an unseen order, and that our supreme good lies in harmoniously adjusting ourselves thereto." In that spirit, Carson challenged parents to direct children away from the "sterile preoccupation with things that are artificial, the alienation from the sources of our strength" and toward the wonders of nature."

Third, Carson had a strong populist spirit, not only supporting a progressive role for government, but believing that the people had a "right to know" about the dangers of modern science, particularly when it directly affected them. A civil lawsuit concerning pesticide use that affected private property was an immediate influence on Carson deciding to write Silent Spring (though the idea was on her mind for some time). This influenced environmental movement as a whole, her poetic books about sea life encouraging a personal attachment and concern as well.

Finally, Carson is a model for feminists. She had a "man's" job as a scientist in an era where such distinctions were clearly made, repeatedly getting assistance (including one of her editors) from a sort of "girl's network" (cf. old boys network). She also quietly took care of her mother and both her niece and grandnephew, Carson's father and sister both dying fairly young, her brother not around much or close to his sister either. And, she had to fight through major illness to finish Silent Spring, sadly not truly being able to enjoy her publishing success for too long, dying in her 50s.

An extraordinary woman, for sure.

Lemon Tree

From the director and some of the people that took part in the also good The Syrian Bride, Lemon Tree examines the issues -- in a somewhat less absurdist fashion -- of the Israel/Palestinian border via a struggle over a lemon tree across from the house of the new Israeli Defense minister (the metaphorical nature of it all underlined by the guy's name -- Israel Navon). The female leads are particularly good.

Dahlia Quickie

Dahlia Lithwick's latest has lots of YouTube videos of potential Souter replacements, including some good stuff from Gov. Jennifer Granholm. I add more here, including (see PS) coverage of a new (and downloadable) book on a "living Constitution" approach.

On the Radio ...

And Also: The Mets are showing some life. How long will it last? Will try to enjoy it.

I found a very good interview of Ayelet Waldman, who I'm not familiar with in general. She talks about various topics, including her two abortions, one which later term. It was that one for which she is emotional, using the masculine pronoun (there being some "person" at that point in her eyes). Her upfront honesty about the issues, including how she is more emotionally attached to her husband than her kids (but she had abortions ... how can she have kids?!), was attractive. It's understandable to hedge and talk PC when talking about yourself, but when talking about issues in general, it is a bit dumb. Some also might be turned off by it, thinking you fake.

For those who don't want to see The Soloist, perhaps a radio program on "How do we connect with the mentally ill?" might be more up your alley, including various people who have to deal with the condition portrayed in that movie. The real people come off better than the movie does from its previews, though they liked it. I have not listened to Your Call for awhile, partially because of problems with downloads, but this CA based program (which Laura Flanders once took part in) often has interesting stuff. And, this often leads to further reading.

For instance, a recent program on Rachel Carson led me to read a nifty bio entitled The Gentle Subversive: Rachel Carson, Silent Spring, and the Rise of the Environmental Movement by Mark Hamilton Lytle. An "intimate biography" of sorts. It was available in one place: the temporary site opened to handle stuff from a recently (temporarily?) closed library branch. The branch was cozy with an upstairs that at the time was mostly empty of people -- it was like stacks at a college library or something.

So, it was good on more than one level.

Truly Honoring Prayer and our Armed Forces

On this day of unity and prayer, let us also honor the service and sacrifice of the men and women of the United States Armed Forces. We celebrate their commitment to uphold our highest ideals, and we recognize that it is because of them that we continue to live in a Nation where people of all faiths can worship or not worship according to the dictates of their conscience.

Let us also use this day to come together in a moment of peace and goodwill. Our world grows smaller by the day, and our varied beliefs can bring us together to feed the hungry and comfort the afflicted; to make peace where there is strife; and to lift up those who have fallen on hard times. As we observe this day of prayer, we remember the one law that binds all great religions together: the Golden Rule, and its call to love one another; to understand one another; and to treat with dignity and respect those with whom we share a brief moment on this Earth. ...

I [Barack Obama] call upon Americans to pray in thanksgiving for our freedoms and blessings and to ask for God's continued guidance, grace, and protection for this land that we love.

Hilzoy has some interesting things to say about the criticism of some that Obama did not make the National Day of Prayer as public or sectarian (see also, Rachel Maddow last night, one voice noting that we are a "Judeo-Christian" nation since we honor God ... unlike Muslims?) as some would have liked. Obama is no absolutist on this, so the low key approach used here, the proclamation dictated by an act of Congress, is probably the best one can hope for.

This is so even though the selective call of religious unity runs counter to the fact that "a religion, even if it calls itself the religion of love, must be hard and unloving to those who do not belong to it." Well, that might be a bit harsh, but it is still true many religions are somewhat harsh to "unbelievers." This meaning a lot more than belief in a God to many people. President Jefferson also avoided this sort of thing:

[I]t is only proposed that I should recommend, not prescribe a day of fasting & prayer. That is, that I should indirectly assume to the U. S. an authority over religious exercises which the Constitution has directly precluded from them. It must be meant too that this recommendation is to carry some authority, and to be sanctioned by some penalty on those who disregard it; not indeed of fine and imprisonment, but of some degree of proscription perhaps in public opinion.

This sort of thing should not be exaggerated, obviously, but it still suggests a basic rule: true separation of church and state cannot be absolute. Not in some overly artificial way of police not protecting churches or churches not having exemptions for their charity work, but that the POTUS must recommend people to pray as an official act. While doing so, it is likely s/he will do so in a way disputed by the religious beliefs of millions of people. And, in some small way, religion will be made relevant to public acts of the government in ways it simply should not.

It won't stop with the tiny breaches of the wall. Nor does any kind of discrimination. The reference to United States Armed Forces supplies a suitable bridge to another guest on Rachel's show:

[Lt] Dan Choi, a West Point graduate and officer in the Army National Guard who is fluent in Arabic and who returned recently from Iraq, received notice today that the military is about to fire him. Why? Because he came out of the closet as a gay man on national television.

The linked article puts this in Obama's hands because it appears to legal minds who studied the matter, even if Rep. Sestak (the law is the law, no matter how bad) on her show was hesitant about the path, that Obama could right not put forth an executive order to stop the investigations. Congress set the policy, but Obama can decide not to enforce it, I'd say perhaps as a moratorium while the Defense Department studies the matter. This is credible in part because the matter is now under judicial review. If Gitmo prisoners can be in limbo as the situation is examined, why not this policy?

[Thus, no, this isn't just some dubious "prosecutorial discretion" that can justify ignoring any law that might result in uncomfortable political consequences.]

2nd Lt. Sandy Tsao sent Obama a letter in January:

I am a Second Lieutenant currently serving in the United States Army. In addition to being an officer, I am a Christian, a woman and a Chinese-American. I am proud of all these identities. Lastly, I am also a homosexual. On December 21, 2007, I was appointed as an army officer. In the oath of office I swore that I will support and defend the Constitution of the United States against all enemies, foreign and domestic. Unfortunately, I will not be able to fulfill this oath because the current policy regarding sexual orientation contradicts my values as a moral human being.

A Christian? But, she's gay!! She received a letter back signed by the President:

Thanks for your wonderful and thoughtful letter. It is because of outstanding Americans like you that I committed to changing our current policy. Although it will take some time to complete (partly because it needs Congressional action ) I intend to fulfill my commitment!

Tsao also for her "actions" was kicked out of the military. It is unclear if Obama could not have done something to stop this. Some suggest these individuals chose their paths, that they decided to speak out ("action"). But, as she noted:

Originally I planned to leave quietly and reenlist in the Marines if the policy changed, but I was getting so lonely and tired of people cracking gay jokes and not being able to talk to my friend because of the policy.

She then quoted from the U.S. Army's Equal Opportunity Branch (EO) Mission Statement about how the military "provides an environment free of unlawful discrimination and offensive behavior." This includes constitutional demands. And, these two individuals in effect are spokespersons for all those who must live a lie, which is damned hard, so in some fashion they "act" and violate the policy. Of course, being less public, the military can arbitrarily pick and choose who to dismiss. [Update: And, it encourages harassment of those who "act" "homosexual."]

That doesn't seem to honor the Golden Rule, does it? I recall the person who spoke about that rule also was not too enthused about public prayer; his guide to the rightful path was a bit harder than that. [Update: Steven Colbert made the same point yesterday. So easy sometimes.]