Open Ended Teaching Moment

And Also: Reba is one of those shows that pop up repeatedly in syndication on multiple channels. It is skillful on many levels, amusing, touching, and serious. Multiple roles are very well done, including Joanna Garcia as the young mom: both pretty but also having an inner strength/seriousness.

If I am not for myself, then who will be for me? And if I am only for myself, then what am I? And if not now, when?

-- Rabbi Hillel

The whole Gates thing has gotten to be a bit lame -- drinking beer with the President and Vice President? really? But, it is hard not to think about the whole thing. One value of it all is that on some level it is pretty petty -- charges dropped and so forth -- while on another, it remains very important. Deep but wide, you might say. It also has many aspects. Thus, many remind that related police overreaching can be race neutral. Though we have had (including in the news -- the complications dripping out long after assumptions are made) a lot of kneejerk reactions, some on both sides realize this.

Race clearly was a factor. But, race can be a factor by various means. Prof. Gates has examined race in his scholarship, but the underlining concerns and doubts particularly arose after a long trip (from Asia!), when he probably was particularly tired. He did not expect to be interrupted by an officer at his own home. Overall, it would amount to one of those times when you are not at your best. "Fighting words" cases, related to "disturbing the peace" and so forth, tend to be of this sort. If we ignore this, a false and artificial view will arise.

Over appellant's objection, the trial court excluded, as immaterial, testimony relating to appellant's mission "to preach the true facts of the Bible," his treatment at the hands of the crowd, and the alleged neglect of duty on the part of the police. This action was approved by the court below, which held that neither provocation nor the truth of the utterance would constitute a defense to the charge.

-- Chaplinsky v. New Hampshire

This 1942 case unanimously put "fighting words" into the category of speech thought not to include constitutional problems, including "lewd and obscene, the profane, the libelous," all of which later was deemed to have many of them. What was the fighting words here? "You are a God damned racketeer" and "a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists," with the inclusion of "God" being denied by the defendant. What is this context that we were to ignore? An angry crowd not appreciating his preaching, one that allegedly beat him and threatened further violence, the police targeting him personally.

Time made the Supreme Court more wary about arrests based on "fighting words," particularly when directly involving members of the police. As Justice Powell noted:

The words may well have conveyed anger and frustration without provoking a violent reaction from the officer. Moreover, as noted in my previous concurrence, a properly trained officer may reasonably be expected to "exercise a higher degree of restraint" than the average citizen, and thus be less likely to respond belligerently to "fighting words." 408 U.S. 913 . See Model Penal Code 250.1, Comment 4 (Tent. Draft No. 13, 1961). ...

The present type of ordinance tends to be invoked only where there is no other valid basis for arresting an objectionable or suspicious person. The opportunity for abuse, especially where a statute has received a virtually open-ended interpretation, is self-evident.

We have two themes here as well, putting aside the matter of the home (even in a more public place, the law's application here is very dubious): the officer should more reasonably be able to handle stressed out civilians (even those who we put out as role models -- Gates after all was in effect "off duty") and arresting someone in this context leaves open much opportunity of abuse. All the details, from the hazy police report (which spoke of possible "suitcases") down, underline that due care should be performed here. This case involved race, the first one religion, another can be yet something else. We need to think big here.

If there be a "teachable moment," it is about all types of honest misunderstandings and so forth. Obama's original answer had that sort of component though it did have something of a race focus. That is probably too limiting.

Quickies

New trend? Legal sorts attracted to veganism? Review article on Lincoln (mandatory Gates connection). Habeas means something, even if innocence might not. Bit too polite slamdown on cluelessness.

Sessions type appellate judge shows how it is done

And Also: When the Mets are .500 ... let's not even talk about remaining there or above ... then you can start worrying about their playoff chances. That is how it was done in 2001 ... when they failed to get over the hump, anyway. Now, just enjoy the fact they won a few games in a row. Still, I see some life in Daniel Murphy at 1st and Pagan just might be a credible left fielder next year.

We interrupt this "drinkability" [lame ass beer commercial cite] moment to address another matter ...

The Senate Judiciary Committee voted 13-6 in support of Judge Sotomayor, Sen. Graham the only Republican voting for her, now that Sen. Specter has determined that it is electorally better for him to be a Democrat. The senators on the minority side (pun noted) had various common themes, including concern over her votes in Ricci, a property rights case, and a gun rights case (not involving guns). They also feared she would be 'activist,' including when wise Latinas were involved.

Judge Timothy Tymkovich is a B43 nomination. Since Sen. Graham noted with concern that Democrats brought the Senate to the cusp of disaster by holding up a few nominations, perhaps this statement by Sen. Leahy would be appropriate:

Today the Senate is being asked to consider the nomination of Timothy Tymkovich to the United States Court of Appeals for the Tenth Circuit. Mr. Tymkovich is the fourth of President Bush’s nominees to this circuit to be considered by the Senate. Three nominees to the Tenth Circuit were given hearings and confirmed during my time as chairman: Harris Hartz of New Mexico, Terrence O'Brien of Wyoming and Michael McConnell of Utah.

This was in stark contrast to the treatment of President Clinton’s nominees to vacancies on the Tenth Circuit, including the very vacancy that we are considering today. President Clinton nominated outstanding lawyers to that vacancy -- James Lyons and Christine Arguello -- and neither was ever granted a hearing by the Republican majority. Judge Lyons was among the many Clinton nominees voted unanimously Well Qualified by the American Bar Association who were never granted hearings, and Ms. Arguello is a talented Hispanic attorney whose nomination had significant, widespread and bipartisan support from her community and state. Once again, as with so many Circuit Court vacancies on the District of Columbia Circuit, the Sixth Circuit, and around the country, qualified nominees of a Democratic President were denied hearings and votes by the Republican-controlled Senate so that these same vacancies could later be filled as part of a Republican Administration’s campaign to stack the courts.

He ended:

This Administration's continuing efforts to pack the courts with ideologues remains troubling. Once again, I urge the President to begin acting to unite the American people and the Senate rather than to divide us with his controversial judicial nominations.

Judge Tymkovich just took part in a ruling involving a search incident to an arrest arising out of traffic stop that came up with a gun illegally owned by a felon. The search appears to be in violation to a recent Supreme Court ruling but the court here ruling on a "technicality" that the officer acted in good faith, since the Supreme Court had not so decided at the time of the stop. Yes, technicalities help the prosecution too. Judge T. joined this without comment.

The court here also cited Heller, the Supreme Court gun case, that noted in passing that the ruling was not meant to put in doubt laws against felons owning guns. The case was nothing about felons, but the Court went out of its way to list various regulations that were reasonable. This "dicta" allowed lower courts to summarily avoid challenges that fit in one of these categories. For instance, the Ninth Circuit held the Second Amendment applied to the states, but that the law in question fit into one of the various regulations the Supreme Court summarily listed as okay.

Judge Tymkovich was concerned. Sure, given the Supreme Court said so, "our job as a federal appellate court is to follow the Supreme Court's directions, not pick and choose among them as if ordering from a menu” would 'perhaps' make it proper for lower courts to not second guess the Court. But, he was concerned. Sure, pro-individual rights sorts like Don Kates have explained how original understanding was that felons would not have gun rights. Still, there is conflicting evidence, and the dicta seems to be rather ... uh activist ... calling it in fact deus ex machina dicta that didn't even make sense within the context of the right set forth in Heller.

This is what Sotomayor should have done in the Second Amendment case. She should have voted separately, noting ... yes ... the Supreme Court expressly did not overturn previous precedent respecting gun rights as applied to states. But, this doesn't make much sense really, and here is an advocacy brief for the other side. Meanwhile, it would be best for her to be selective in this (dare not call it activism*), only doing so for conservative results. After all, she did protect property rights, but that didn't count for Sessions, since she joined a ruling in one case that did not protect the conservative side. Better safe than sorry.

But, Sotomayor is more cautious and loyal to precedent than that. Thus, Sen. Sessions and others felt unable to vote for her nomination. Or, they might just be blatantly hypocritical.

---

* It is acceptable, btw, for a lower court judge to now and again write what it amounts to personal opinions stating their views on some particular matter. Judges need not be potted plants. Likewise, I think he has something here in calling out the Supreme Court as being so willing to toss in what amounted to an advisory opinion respecting acceptable gun regulations before the lower courts had a chance to deal with the issue. And do so in cursory fashion.

But, this is surely if nothing else an "activist" move, which is fine with me since I like my judges not to be inert, something many Republicans claim is a bad thing. Except when it's not. And, even here, Judge T. admits that the majority was probably doing the right thing. So, maybe it would not be enough!

Quickies

Sotomayor came out of the Judiciary Committee with only one Republican (Specter now a Democrat) vote. The fact the likes of Sen. Grassley find her unsuitable underlines how ridiculous that party has become. Four lower court judges also were let through by voice vote. [More here, including as to better questions.] The transcript of the 911 call only underlines the confusion in the Gates incident; still the arrest was stupid. Racist or not, still teachable!

Gates Again

And Also: Drop Dead Diva and Army Wives were again good episodes, particularly the former where "Jane" continued had to deal with her new role. Her getting emotional during a wrongful death case was a nice touch. Rosie O'Donnell did a good job as a mentor/judge. Army Wives dealt with an unpleasant character, giving him a comeuppance, if a way that didn't let us see how a war games episode would normally go. The home sex products party also was a cute, and realistic touch.

And yet the fact of the matter is, is that this still haunts us. And even when there are honest misunderstandings, the fact that blacks and Hispanics are picked up more frequently and often time for no cause casts suspicion even when there is good cause. And that's why I think the more that we're working with local law enforcement to improve policing techniques so that we're eliminating potential bias, the safer everybody is going to be.

Maybe, the President should have said something like this.* Note how a major problem is that the system is poisoned so that various people don't trust other people, resulting in incidents even when the other side appears to be nothing wrong. Misunderstandings poison racial relations, particularly when they affect how someone acts when they have broad discretion to act. This is so, for instance, in the "driving while black" area. A black might be driving fast & stopped for just that reason. S/he might be very upset, thinking "they are just doing it because I'm black!!!!" They are not irrational for thinking this. The fact that there is a black President does not change this.

[To address it upfront, "honest misunderstandings" also probably were involved in respect to the other people involved. These also have been looked at simplistic, thus the woman who reported it very well might have just saw a possible break-in (not the first in the area, apparently) and had no way of knowing that Gates actually lived there. Likewise, though class, race or authority might have factored into how the officer(s) involved handled things, particularly after the id was shown, asking for id and such were in various respects not as unreasonable as some make it out to be. This does not mean each side are in an equal position, but focus on how confusion arises in every which way is an important thing to keep in mind.]

People, particularly those with guns and the power of arrest, have to take this into consideration when they act. This is so even if the person on the other side is an asshole. It is not "racist" to realize this. In fact, pardon me, it is "stupid" to not do so, particularly if you arrest the person. Some who admit the arrest was probably unnecessary don't like that word. They rather say "unfortunate" or some other pablum. But, when you are talking about hurting race relations, or rather the basic issue of arresting someone at their own home (Obama noted "any one" would likely be upset here -- he didn't make it just about race), it's okay to be blunt sometimes. In fact, "unfortunate" is a bit to namby-pamby.

It is also not "racist" that civil rights laws take special concern for certain types of discrimination, in fact putting in place safeguards that pull in some seemingly neutral behavior. We should treat everyone fairly, but we take special care -- with good reason -- to be fair in certain respects. Thus, a voting law change in certain areas of the country has to get the approval of the federal government because historical practice was that discretion had discriminatory results. Requiring a lawsuit to guard against this is a complicated mechanism that would allow discrimination to go on as it carried out. But, yes, not every change involved has some racist motive or effect. The same might be said about use of force and the authority of the state in general. Taking special care to not arrest people at their home -- even if you technically can -- is generally a good policy.

C-SPAN aired an old appearance of Prof. Gates, promoting some book or something. It made me recall that he is not a caricature, which the picture out there of him in handcuffs suggests. He is a person. He can be someone's older parent who might be stressed out or act a bit irrationally under periods of stress. They might have a big sense of honor. And, as one Slate frayster noted:

Gates had every reason to be angry he had just come off a long flight, probably tired and irritable, finding himself locked out of his house would the last thing he probably needed and this intrusion into his own space would be the last straw, no matter who called the cops.

So, it is perfectly understandable on a human level what he did. This doesn't make the officer into a monster. There seems to be an either/or nature to many people's responses. On this front, it's good to hear from the officer too. There are people behind these debates, who act in flawed ways, given that is how institutions and humans work in the real world. And, the people with the power of the state behind them do have more responsibility. The fact it can be hard work to do so is granted and respected, but that doesn't change their duty to do so.

Still, the human factor is what strikes me the most in the end. The fact so many wish to ignore it underlines how problems will continue. They deal with types, not flesh and blood reality.

---

* Obama did say this.

Health Care

And Also: The Mets GM has a press conference to announce some miscreant is fired makes it a chance to get into a pissing contest with a long term Mets reporter who reported on the story. No wonder a review of the latest reality program ended with: "But if you want sad and uncomfortable on television these days, you're better off just watching the Mets."

While previous reform efforts reffered to providing universal coverage as a moral issue, President Barack Obama is instead focusing on reigning in the burgeoning cost of care.

- Today's Papers

It sounds to me that he is doing both. From the press conference:

This is not just about the 47 million Americans who don't have any health insurance at all. Reform is about every American who has ever feared that they may lose their coverage if they become too sick, or lose their job, or change their job. It's about every small business that has been forced to lay off employees or cut back on their coverage because it became too expensive. And it's about the fact that the biggest driving force behind our federal deficit is the skyrocketing cost of Medicare and Medicaid.

It is hard not to make health care an issue without talking about the moral component. Concern about not having care, being sick, and so forth is not just about money. But, given the times and that it is also about money, it is pragmatic and sound to focus on that aspect too. I do think we can focus on it too much -- for many it is first and foremost a moral issue, even if (at least in the short term) it is expensive.

On the cost issue, this by Peter Orszag, directer of Office of Management and Budget is interesting:

In part because legislation under consideration already includes substantial savings in Medicare over the next decade, CBO found modest additional medium-term savings from this proposal -- $2 billion over 10 years. The point of the proposal, however, was never to generate savings over the next decade. (Indeed, under the Administration’s approach, the IMAC system would not even begin to make recommendations until 2015.) Instead, the goal is to provide a mechanism for improving quality of care for beneficiaries and reducing costs over the long term. In other words, in the terminology of our belt-and-suspenders approach to a fiscally responsible health reform, the IMAC is a game changer not a scoreable offset.

More from TPM. Again note the "improving quality of care" with costs as a "long term" goal. It might even be said that it is a secondary, if still very important one.

Teaching Moment

Apparently, Obama is "walking back" his Gates comments [did anyone actually read them, or just one line?]. So, he thinks the arrest was reasonable now? Or, racism is less of but still a societal problem that leads to honest misunderstandings? Uh no. He talked to each side, and now basically says both are great guys who acted badly. Uh huh. Sane sorts believe he is coming off as a crafty politician/adult.

Friday Quickies

The discussion of the Gates incident is starting to get really stupid. Well, it always was ... let's say tedious. The administration really should have released something. Today's Mets loss is particularly offensive. Santana gave up five runs, two each with two outs, two via a home run by the pitcher. If the Mets are going to lose 5-4 this way, they are really toast. BTW, much too many opposing pitchers get on.

Race Matters

And Also: Note I put in an extended update on the Gates discussion. Relatedly, von makes a case for me to continue to check out OW.

The curious cult of so-called "birthers," those conspiracy theorists who believe President Obama wasn't born an American citizen, making him ineligible to serve in the White House, first struck me as a political joke.

I've stopped laughing. Too many political and media leaders are deliberately fanning the flames of ignorance and fear, and they should be ashamed.

-- Errol Louis

Yes, the fact -- as he notes -- only a tiny amount of people actually take this stuff seriously, the attention it gets alone is problematic. It is but a symptom of the promotion of ignorance. This includes the likes of Lou Dobbs, whose own network distances themselves form him. As is often the case, it takes Comedy Central to underline the stupidity. I'd add a few aren't as much concerned with the locale of his birth, but that his dad was Kenyan. This sort of misses the point of "natural born" citizenship, which is concerned with locale, not blood.

The racist aspect of all of this is highlighted by the fact that if anything, McCain was the one with a problem. He was born in Panama, and credible -- if minority view -- legal scholars have argued that (particularly given the congressional policy at the time of his birth) he was not "natural born." His parents were clearly both U.S. citizens, but the second theory is (pardon the pun) the minority one (since only "natural born," not "dual" or whatever, is the issue pursuant to Art. II, it also is the only one based on any credible theory, facts aside) -- all this talk of birth certificates underlines that. But, clearly, if we were talking about a person with a white father with Kenyan citizenship, things would be different.*

Meanwhile, the incident Professor Henry Louis Gates Jr. (as a newspaper might add, who is black) popped up during Obama's press conference. Let me upfront add that I'm as interested in watching these things now as I did before, to be honest. This is what (other) blogs are for right? OTOH, watching the Mets complete a loss of a series to that powerhouse of the NL, the Washington Nationals (this can be educational -- analyst Keith Hernandez "educated" Gary Cohen about the Reconstruction a couple days ago) is not too enjoyable these days, even if (see the back cover of today's NY Daily News) some of their execs come off as nuts of late. Some believe the team has a pulse.

[Update: If you click the link below, you will go to my Slate posts ... a check on other posts by the user will show various discussing the Gates incident. One addresses someone who thinks Obama was moronic for calling arresting a Harvard professor at his own home "stupid." Telling. We are upset when our leads spout platitudes, but when they are a bit blunt -- in the course of an extended discourse -- we are upset.

Also, not only does Obama know Gates (noting to being a bit "biased") but he has background in racial/policing issues to some degree, including in the legislature. No big "expert," but his answer had some basis in actual knowledge. Rachel Maddow noted that it was the last question -- this does cause problems, since it helps make it, not health care, the story. Still, he is a "fox" after all. So, even if he should have brushed it off, the opening it gave was hard to ignore.

The person also claimed Gates, carted off in handcuffs from his home, was not really "hurt." This too, even if the person referenced comes off as an ass, is a common theme when such "petty" wrongdoing occurs. What's the big deal? And, when something big happens or a community has a "straw that broke the camel's back" moment, these same people are shocked.]

Seriously, race continues to be an issue, as shown by a decision against New York City as to their fire department tests. Darn! Didn't Ricci end the issue of race in government jobs? No? Darn nuanced overblown rulings! As to Gates, this person connected it to Ricci and Sotomayor, too. A trifecta. von over at OW, perhaps because he moved from his usually ridiculed fiscal posts, had a good riff on how cops can be assholes either way. We sure a few years back how an officer asking for id became a federal case, even though the guy was white, the coverage suggesting a bit more care would have avoided an incident. Of course, reasonable recognition of societal realities are helpful, at least in the eyes of four to five justices:

The constant element in assessing Fourth Amendment reasonableness in the consent cases, then, is the great significance given to widely shared social expectations, which are naturally enough influenced by the law of property, but not controlled by its rules.

And, putting aside the simplicity promoted by the Sotomayor hearings (see here, also as to judicial law-making), things are a tad bit complex. As Bart D. Ehrman in Jesus, Interrupted noted when discussing the related issue of scriptural interpretation:

Of course when trying to understand these different points of views we need to engage in the work of interpretation. Contrary to what some people assume, texts don't speak for themselves. They must be interpreted. And this can never be done "objectively," as if we, the readers, were robots; texts are interpreted subjectively by humans.

Something about "empathy" there, probably. Anyway, if a bit repetitive to past works, I would recommend that book too.

---

* It is clear Obama was born in Hawaii. It is quite possible that the citizenship of one parent made that moot. But, though a now defunct 1790 statute suggested so (as long as the father at some point was a resident), the U.S. Department of State Foreign Affairs Manual Volume 7 - Consular Affairs notes:

It has never been determined definitively by a court whether a person who acquired U.S. citizenship by birth abroad to U.S. citizens is a natural born citizen within the meaning of Article II of the Constitution and, therefore, eligible for the Presidency.

Thus, those who cite the citizenship of his mother are not really that helpful. As to McCain, basically, since "natural born" is debatable, realistically, reasonable congressional policy and practice overall will decide the question. This includes not only those born in the U.S. (and its territories, military bases and so forth) but those by statute determined to be citizens at birth, including those with citizen parents born overseas. As the links overall suggest, judicial precedent from back to the 19th Century basically appears to agree.

Obama's team is perfect ... in Chicago

A perfect game requires more than an ace performance by the pitcher. After all, the Braves lost today 5-4 with four unearned runs. The team earlier had a no-hitter ... someone got on via an error. But, today -- against a pretty good team -- the White Sox as a team was perfect. That is baseball as it should be.

Graham For Sotomayor etc.

A few Republicans, including Graham (for) and Sessions/Kyl (against), have reported their votes on the Sotomayor nomination. [more]

The value of limited investigations

And Also: Hilzoy will be missed, but checking over OW, it still provides (especially with comments) one of various places where someone can get a better sense of the details of policy debates, including health care. As someone who can be overwhelmed with details, even if the big picture seems fairly clear, this is of particular interest. The long disappeared Melissa Rogers also has popped up for the Sotomayor hearings at least.

I responded to a post GG had today regarding his debate with Chuck Todd ("journalist") on investigations of torture and other matters. First off, let me again note that the Young Turks interviewer did things right, including providing follow-up questions that did not just accept the premise of the answers. This was possible even though the guest was there for a limited amount of time. Second, that Colbert bit was not really funny: it had too much of a serious edge, especially the kicker. Finally the back and forth I had with Glenn in particular was tedious.

My basic argument [agreed with here in a way better expressed than I] was that the investigation, as the reporter interviewed noted, might be valuable in particular if the limited area is truly investigated. A "what" is being investigated here, not a "who." And, the acts of small fry -- not saying this actually will be done -- tend to not be done in a vacuum. In the process, a lot may come out, the limits unclear. This is one reason some will fear it. As the NYT article linked by GG's post notes:

Mr. Holder has told associates he is weighing a narrow investigation, focusing only on C.I.A. interrogators and contract employees who clearly crossed the line and violated the Bush administration’s guidelines and engaged in flagrantly abusive acts.

But in taking that route, Mr. Holder would run two risks. One is the political fallout if only a handful of low-level agents are prosecuted for what many critics see as a pattern of excess condoned at the top of the government. The other is that an aggressive prosecutor would not stop at the bottom, but would work up the chain of command, and end up with a full-blown criminal inquiry into the intelligence agencies — just the kind of broad, open-ended criminal investigation the Obama administration says it wants to avoid.

The "line" here is violation of official Bush memoranda. If the agents in question broke them but had the okay from superiors, are we saying here that the superiors would also not be targeted? Why not? If we will have this limited investigative focus, yes, we must focus on those involved, not just small fry. OTOH, should we not arrest sellers of crack to children if we cannot -- for whatever reason -- get the big suppliers? GG is firm in saying memoranda being used as a line are not "the law," but a perversion of it. My argument in no way implies otherwise, but he felt a need to remind us (me) of it in response to my comments. Me saying this once didn't take for some reason, though I do not think my argument was somehow obscure.

The reality is that "the law" is not properly enforced all the time. So, I said, if we have to suffer through this (not saying it was right), it might be best if there were some limits. But, the limit is the law of the land!!!! No duh, Glen. And, (as I said) prisons are cruel. It is using the perfect as the enemy of the good to say that drawing some line in the sand (e.g., waterboarding is illegal) is meaningless, if some illegality continues. GG:

Exactly. It's one thing for a prosecutor to decide, as a matter of standard prosecutorial discretion, that those memos would make it too difficult to obtain a conviction, but to declare ahead of time that they constitute immunity as a matter of DOJ policy is another thing entirely. An investigation grounded in this premise would be to institutionalize the incomparably dangerous notion that anything the President does is legal provided he finds some low-level DOJ functionary to write a memo saying it is. The torture tactics Bush ordered are criminal no matter how many memos John Yoo wrote saying they weren't.

Yeah ok. I don't know the importance of this "DOJ policy," which after all is a matter of discretion anyway. Likewise, whatever "DOJ policy" is, it is not the same thing as "the law." They can make it "policy" that medicinal marijuana legitimized by the states will not be prosecuted; it still is against federal law. It is criminal no matter how much "DOJ policy" says otherwise. Right? And, GG wants to call doing nothing "prosecutorial discretion" as if that is so much better. The people still get away with it. He is (rather angrily) hanging on to wordplay at the end of the day. On the basis of rather thin reeds, GG rather NO ONE be prosecuted, even those that went further than executive policy.

I myself think the latter group crossed an additional line. It is like qualified immunity -- an official can do something wrong or something REALLY wrong. Both are illegal, but the latter is particularly so. If nothing is done, why exactly it is not "institutionalized" anyway is beyond me. It is just always "too difficult" to prosecute. Sorta like technically a black man could get a fair trial in the Jim Crow South. It wasn't "policy" that he could not, right? Well, not "official" policy. Are we serious here? Let's be real here.

Finally, I don't see by the article cited that "policy" is being made here! The quote portion says the additional "investigation" will be limited to those who went further than the Yoo memoranda etc. Now, perhaps, overall that is being said. Fine. But, the article suggests only that prosecutorial resources will be used for this class of people. This sounds like prosecutorial discretion to me. After looking at everything as a whole, he is targeting a special class. Why is this a problem even under GG's rule.

Bottom line, this is all very annoying. I don't think this is enough, but it takes so much effort to accept some baseline. Many STILL cannot admit that waterboarding is torture and shouldn't be done even if it might "work." Now, we have to deal with so much anguish over what amounts to a too narrow investigation. But, this should not lead us to ignore the shades of gray. [See here as to the "birther".] Instead, people who clearly agree with each other on what matters talk past each other on details. Shouldn't the reality based community be able to reason better?

Home

Home concerns a breast cancer survivor who deals with various demons while having a complex relationship with her daughter, who feels she needs to be the mom at times. Marcia Gay Harden, who appears to be in a film every other day, stars with her own daughter, who is wonderful in a tough role. The film is somewhat slight overall, but their interactions alone is a reason to rent it.

Overruling Slaughterhouse?

And Also: The short lived CW show Valentine without much fan fare just aired the final episode, basically a cliffhanger involving possibly (I doubt it) the death of Ares (there is always an out, even for immortals). The show showed some promise as light romantic fantasy with a dark edgy subplot, though the scripts were mixed. The finale lesbian love story was one of the best.

[Some editing done here, mostly to clean up. I did add a few comments to flesh out the arguments. BTW, the Judiciary postponed the vote for Sotomayor a week, maybe for the Republicans to read her written addenda.]

Sometime this Fall, the Court will examine three cases [involving the Second Amendment] that already are being pushed as “appropriate” ones for the Court to use for a reexamination of the Clause, and the Slaughterhouse precedent.

-- Lyle Denniston

This sort of this is more of an interest for those who debate the nuances of Vulcan languages than something that many deem very important. Sure, a few people -- most importantly perhaps several now on the Supreme Court -- care that substantive due process was used to provide a means of broad rights against the states pursuant to the Fourteenth Amendment when the Slaughterhouse Cases cut the legs beneath the Privileges or Immunities Clause (not to be confused with the clearly related but different Privileges and Immunities Clause of Art. IV).

First, a bit of confusion from the discussion:

Under constitutional theory, there are only three ways that the Court could interpret the Second Amendment as applying to the states. The Constitution's text rules out one of those, the Slaughterhouse Cases rules out a second, and the one remaining — “incorporation” of the Second Amendment into the Fourteenth Amendment so that it reaches states – is not an attractive option to constitutional conservatives. Thus, the impending challenge to the Slaughterhouse precedent.

The discussion clarifies that the text of the Second Amendment only applies to federal laws per "the constitutional understanding" from at least Barron (1833). This is important -- the "text" alone does not say this. It is a sound interpretation, if not one everyone now or then accepted, but clearly not one where the text alone solves everything. After all, the Slaughterhouse majority insisted "the text" of the Fourteenth compelled their result (the clause covers only a limited number of rights, not the Bill of Rights). The discussion in effect appears to implying one is right ("the text"), the other at best open to question (citing a case).

Why is it helpful to overturn a hundred years of precedent and provide a deep substantive security to the Privilege or Immunities Clause? As noted by the amicus brief cited, largely the text and original understanding allegedly is better secured. There is a good argument here that the clause was originally thought (though as the dissents in Slaughterhouse suggest, even then there was some understanding of substantive due process) as the core protection of rights against the states such as those found in the Bill of Rights. But, especially since there is also an original understanding as applied to the due process clause, so what? Strict originalism, especially if it requires overturning a body of law mainly for neatness sake (see below), is not widely held doctrine. Is it really like a full Court will bite?

Six justices at least would be perfectly fine with the Due Process route. Justice Kennedy has shown no desire to sign on to Thomas' Privilege or Immunity proposals. Justice Scalia dissented in Troxel v. Granville, where Thomas suggested that that right would include (as it surely was intended to) something more than the rights written in the Bill of Rights, particularly parental rights in that case. Roberts seems to prefer narrow looking holdings when possible, not strictly concerned with doctrinal neatness to the extent of Thomas, though might be game in theory. Again, the problem with the original case is that it denied the amendment of much force ... like water seeking an outlet, the Court found another route. When did it find a need to re-frame a right, except perhaps some justices in respect to abortion (equal protection)?

It is suggested, as noted by LD, that it also is believed that the right in question would be less open-ended. I find this almost laughable. Several of those cited by the brief have a broad view of its terms indeed as shown by those who think it would be the proper route in cases like Lawrence v. Texas. In one case, Justice Thomas (who would apply it to things like care and raising of children, a privacy right that can be the basis of the right to choose an abortion) suggested it in a funding context as a limiting device. Saenz v. Roe. But as shown in the First Amendment context, you need not think funding per se is a right to suggest that it can be used in such a way to unconstitutionally infringe one. And, in the process of saying funding was not among the rights intended to be secured, Thomas cited open-ended discussions of what exactly are.

Also, "liberty interests" and the like is how generations of people in and out of the legal academy have understood things. It is quite true that "privileges or immunities" can be used to cover similar ground. But, just as those who ridicule substantive due process as a contradiction in terms laugh a bit too much*, it's a bit more complicated. Many consider "privileges" to be less than "rights." We give the former a somewhat different connotation. And, "immunities" in particular seems pretty technical and minor. As with "penumbra," maybe this is just petty lack of understanding, but things like that matter. In fact, the reference to the "privilege" against self-incrimination itself implies difference from other "rights," particularly ironic when the Fifth Amendment itself in no way says "privilege" as applied to this matter at all.

Likewise, "privileges of citizenship" appear to cover narrow ground. You can readily show how most of the First Amendment (religion is more tricky, but it can be seen as functional) fits in and with a bit of thought ditto most of the others in the Bill of Rights. The militia and jury are citizens with a special role, and Saint Paul in Acts claimed special due process rights as a citizen. But, the Ninth Amendment references an open-ended number of rights that do not seem to be connected to "citizenship" in particular. It is true that the rights of "the people" are referenced, but again, as with the Fourth Amendment use of the term, we tend to not really consider that too closely. And, we are left with protecting non-citizens indirectly via due process or equal protection.**

Why not use a more universal security like due process that covers "persons," one that has the weight of precedent, and some component of original understanding to boot?! A security the speaks of strong sounding "rights" and "liberties" (Give me privileges or immunities or death?). The "citizenship" component of the Fourteenth Amendment can be used to overrule Dred Scott, giving full breadth to citizenship causes of action in Article III, protect the (not totally trivial) privileges and immunities of national citizens (increasing federal power in the process via Section V in particular), and yes reinforce the other provisions in various ways. It will not really be a "nullity."

A narrative of rights of U.S. citizens can and has been made [citizenship itself has certain rights connected to it as citizenship of our own nation does in particular; see, e.g., the Second Amendment and a 'free state'] but so is one involving "liberty" growing out of freedom secured by the Thirteenth Amendment and beyond. [Let me add that there is something to doing more to focus on the former, including how citizenship in a "republic" implies certain rights and institutions. And duties, such as jury and militia service. But, this can be done within the "liberty" framework too.] A more universal narrative that the habeas cases like Rasul underline is in favor. One that protects all "persons" immediately, not as a sort of afterthought.

Line drawing will have to be done in both cases and some of the supporters here have a broad view of what privileges or immunities would cover. And, use of new terms and terminology (does "citizenship" change anything?) seems more trouble than its worth with so little real payback. It seems more an academic exercise than anything else.

Not that I disliked them -- let's see how it goes, hmm?

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* The amicus brief cites two Elys, one that ridicules, the other that supports substantive due process.

** Non-citizens as "persons" would be protected equally as citizens unless there was a significant reason to treat them separately with the additional concern that classes among races and nationalities is deemed particularly troubling without compelling justification. Then, they still would have some base set of rights. Comparably, blacks in some states did not have rights (or privileges and immunities pursuant to Art. IV) as citizens, but still some rights as "persons."

Also, perhaps the default rule is that everyone had rights generally applied to citizens (or "the people"), especially if they were long term legal residents of this country. As two justices suggest (Kennedy/Stevens):

Given the history of our Nation's concern over warrantless and unreasonable searches, explicit recognition of "the right of the people" to Fourth Amendment protection may be interpreted to underscore the importance of the right, rather than to restrict the category of persons who may assert it. ...

In my opinion aliens who are lawfully present in the United States are among those "people" who are entitled to the protection of the Bill of Rights, including the Fourth Amendment.

John Hart Ely Jr. made a comparable comment in respect to the provision in question, including (iirc) in Democracy and Distrust. He (and others) also suggested the Ninth Amendment would be a possible alternative route. Again, maybe ala Casey, we can build on old precedents, noting how many provisions in fact lock together to secure overall principles.

TV Stuff

Though I hope she doesn't win every case big, Drop Dead Diva was good again, the struggles of the lead to adapt to her new body touching. Army Wives also was good overall, most of the subplots well done, including another one involving religion. Emmalin continues to have a strong role. The Wizard etc. tri-show event as is often the case with such 'special events' these days with these shows (the iCarly movie was decent) was weak. She barely used her magic! Miley et. al. came off the best. Another Met hurt; they lose. Yawn.

Hate Crime

TalkLeft's official policy is opposition to hate crime legislation. I share the concerns [see also GG] and think the negative feedback can be counterproductive. The federal bill is named after Matthew Shepard, whose murderers got heavy sentences. The funding and educational stuff might be okay. The only exception I might have is if a state does not enforce a law, like in the 1950s, out of animus. Hate crime laws are much broader than that as a whole. See also this reply to a favorite counterargument. And, here. Cf. [black attacker]

RIP

Walter Cronkite has just died. Obsidian Wings has not -- the person who two of the remaining members did say that they "consider [it to be] her blog," is leaving. Since Publius is something of a boring moderate, von favors fiscal posts mostly useful for the negative comments, Sebastian basically tosses in kneejerk conservative drivel and Eric Martin adds little, maybe OW did as well.

Sotomayor Hearings Review

And Also: Lobster welfare from someone who likes to cook/eat them. Sen. Whitehouse shining pre-hearings. Childhood nudity. Lower court allows scholar to further challenge barrier of entry "on grounds he had contributed to a charity that had connections to terrorism."

So, final thoughts? Well, even if Sen. Graham showed signs of not being a total ass about things, his remark about how he couldn't say anything like Sotomayor's "wise Latina" comment did bring to mind the Stephen Colbert skit that in part:

For instance, take the Dred Scott case. Those justice's life experience, being white men in pre-civil war America some of whom owned slaves, in no way influenced their decision that black people were property. And, their personal backgrounds had nothing to do with the all-neutral court decision that it was legal to send Japanese Americans to internment camps in 1942. Imagine how the life experience of an Asian judge would have sullied that neutrality.

IOW, Graham seemed to understand that diversity matters, even if only in a politically realistic sense with which he isn't totally comfortable, but still didn't quite get it. (1) Action is needed now, not just some time in the past, in the bad old days. [The road to doing nothing -- don't accept things are going wrong, things go wrong, and then admit things went wrong ... but now is okay!] (2) There is a reason why a white guy does not have to give speeches that reaffirm how special they are too, how their perspectives in fact can add something special to the mix. They already do, even if they do not want to admit it.

Republican beating a dead horse (toss in a few other things, on guns so much that Sen. Whitehouse near the end said "enough!") was one theme of the hearings. So much that too many people missed some of the good stuff. Attorney General of Arkansas Dustin McDaniel being pro-gun and pro-Sotomayor panel Ricci opinion.* Sen. Cardin's excellent questions, including yes one on religious freedom (comments). Some useful back and forth with senators with a future Supreme Court justice. And, (see the Cardin link for a taste) some actual sense of Sotomayor as a person and judge. This would be particularly helpful for those who did not read much about her; even if you did, actually seeing a hearing (even if they are always somewhat theater) would help.

I got a mostly positive picture of an intelligent (and crafty), very qualified/experienced legal craftsperson. Clearly, we did not get much of a sense of how she would decide on the ideological divide. Then again, many now feel a bit betrayed by the message that the Roberts hearing sent on that front. [A great sign that people delude themselves or something.] On that front, her judicial record -- which past entries suggest is moderate/somewhat liberal -- is the best sign. I can forgive her garbling of fundamental rights rules, particularly since all the lawyers on the panel or their staffs did not call her on it either.** And, though she was loathe to stick to the full meaning of her past speeches, they suggest a realistic strand (including on foreign law) and play in the joints of judging that is so un-PC in hearings these days.

Particularly since she was not filling a key seat (swing, Chief Justice, major change of ideology), was safe, and other issues like health care have the everyone's attention, yes, the hearings had something of a pro forma feel. But, I still thought they were useful and interesting. And, overall, good feelings for several senators (including -- somewhat -- a couple Republicans) and the nominee overall. See you soon Sen. Sotomayor!

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* The panels provided a possibility to really learn something, even with some of the ideologues and character witnesses (Mayor Bloomberg, who came into power in 2002?) adding little, but they were rushed over as largely a late afternoon afterthought.

** At one point, she noted: "I don't mean to be funny, but the court has held that it's 'fundamental' in the sense of incorporation against the state." As Palko v. Connecticut noted, the test is a "principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." The grand jury is "fundamental," even if it is not incorporated. It also is a test of scrutiny: "fundamental rights" have strict scrutiny.

But, this does not mean other rights are not applied to the states. Since the term was mostly used in the gun context (the quote applies it to religion too), the different contexts appeared to be somewhat confused. The Cardin Q&A underlines (as did others) some constitutional issues were discussed. OTOH, this sort of thing suggests only so much. Not a high point.

Sotomayor Hearings Continue

And Also: This is one of my things and all, but -- for good or ill -- it is not really the focus of much of the attention. Not with the health care bill and all. It is a bit amazing really, knock on wood.

Senator Leahy and I are talking during these hearings, we're gonna do that crack cocaine thing that you and I have talked about.

-- Sen. Sessions

A few highlights from today's hearings ...

Sen. Graham was right to note that there is enough play in the joints to show that the person who fills the job (and who nominates/confirms ... "elections have consequences") matters, thus her speeches and other off bench work is of some relevance. Sotomayor will be much less constrained as a Supreme Court justice. OTOH, he went too far with his in effect soloquy on military commissions and the like, eliding past the fact that those detained do have rights to some hearings. And, that they all aren't out to (seriously) "kill us all."

Sen. Coburn also raised some good points, but went too far. It is not true that women can have any abortion they want. OTOH, yes, no law truly survived (even the handful of liberal ones) after Roe v. Wade. Still, he (and others) ignored the importance of states when protecting gun rights. This includes state constitutions, most of which have some protection in the area. This was emphasized by Sen. Leahy (gun owner) who noted Vermont has more lax gun laws than many "red" states. OTOH, Sotomayor noted yesterday that she could not really think of any federal law related to self-defense ... obviously there would have to be some rules in that context too. Anyway, Coburn's concern for unclear statutes also underlines that he had something useful to add. If, as here with international law, it was of limited illumination on some level.

The questioning today, even Specter, was not very extensive though Franken asked her why she wanted to be a justice, leading to a cute story. We also had witnesses, which at times had a token feel, underlined by the few senators around and more junior senators chairing the rounds. This does not mean nothing of substance was added, Scotusblog, for instance, appreciating Professor Kate Stith's testimony on her qualifications. The highlight for many probably was Ricci/Vargas, and the guest commentator over at TPM had a good read:

Republicans' decision to ask Mr. Ricci and Lt. Vargas to testify is interesting, given the concerted attack on the idea that "empathy" has anything to do with judicial decisions. The two witnesses' testimony focused on the extraordinary effort that they put into studying for the promotion exam, their disappointment at the city's decision, and their unhappiness that the district court and court of appeals rejected their claim, the latter without issuing an opinion. It does not denigrate their testimony to point out that it is an explanation of the actual impact on their lives of the lower court rulings -- essentially an appeal for empathy, and therefore precisely what Republicans claim should not be relevant to judicial decisionmaking.

I don't really think it ridiculous per se that these guys were invited, they were as helpful as kneejerk advocacy group representatives or David Cone talking about Sotomayor saving baseball (or something). They give a human face to court action; but, obviously, they are largely a publicity suit with some irony (hypocrisy). It was useful that Specter actually asked Ricci if he thought Sotomayor made a reasonable (even if wrong) decision given the law. And, honestly, he said that was above his pay grade, that they came as a way to tell their story. It is appreciated that some photogenic plaintiff connected to a more liberal result was not brought out too.

The Dem witnesses amounted to people like the mayor and long time DA of NY, while the Republicans had the firefighters and (it seemed) a bunch of conservative ideologues. A rather obscure victim rights' advocate (he had a family member murdered) tried to trump the former director of the FBI and the head of police union and insist a former prosecutor and relatively pro-government judge on criminal law matters empathized too much with criminals. Another witness tried to explain how France will take advantage of use of international law to overturn the death penalty. Oh, she's out to get our guns because of a single per curiam decision. And, DR says Bush was pretty moderate so when the Supremes rejected congressional enabling, they went too far.

Kristina Moore liveblogging nearly all of this at Scotusblog was a trooper! Meanwhile, is Dahlia right that we know even less? I don't think so. See also here (bottom of article). Did we learn much? Was it that worth it? A different question. Anyway, DL's hyperbole here is annoying, particularly since it can be self-fulfilling (nothing to see here, so I won't even help show there was any value, since it is all hot air, right?)

Sotomayor Hearing Photo

PS

I flicked on C-SPAN and Sotomayor was explaining the summary judgment process and how it applied to Ricci. This alone underlines a value of these hearings. Of course, it is unclear if Sen. Cornyn et. al. was listening, but others might be. Work on it!

Sotomayor Q&A: Day 2

And Also: Will the 2008 election ever be truly over?! Another vacancy in effect resulting from it filled.

The Sotomayor hearings have value both for the questions and the answers. This does not mean both lack problems. Heather K. Gerken points to one problem:

The hearings also seemed to have drained the life out of the law itself. Listening to the exchanges, you would never know that the law is a vibrant entity, a remarkable blend of real-world facts and abstract principles. You would never know that lawyering involves nuance and thought. You would think that lawyering is a witless, mechanical exercise and would be surprised to discover that anyone could find a life in the law remotely inspiring.*

This is furthered by fears of "judicial activism" and worries about use of "empathy" or (the beaten to death) speech by Sotomayor that race and gender (duh) affects how a judge acts. As Glenn Greenwald twittered "The irony of all of this: Sotomayor is probably in the upper 10th percentile of mechanistic/legalistic judges - if anything, it's a fault." In fact, this -- in some fashion -- comes out in her answers, which underlines the value of the process. And, she might want to dance around it (some exaggerate her perfidy in this), but Sotomayor noted in an answer to Sen. Cornyn:

And the process of judging, for me, is what life experiences brings to the process. It helps you listen and understand. It doesn't change what the law is or what the law commands.

The "process" includes actual decisions. Dahlia Lithwick, perhaps stepping a bit beyond Sotomayor's explicit words, argued what seems to be a fair reading overall:

Her message today is also clearer: I am human, my background makes a difference. I am not sorry for exploring whether and how it makes a difference, but when I apply the law to the facts—if you look at my record—the law always wins.

Sotomayor's mantra is that she follows the law. The Constitution stays the same even if different people bring different experiences to the table. This is a bit too of a overly cute way of looking at things. A fair reading of her comments, even if you have to read between the lines, underlines that in a real way the "law" develops, it changes. A response to Sen. Cardin:

That's what precedents do. They provide a framework. The Constitution remains the same; society changes. The situations that brings before courts change, but the principles are in -- are the words of the Constitution, guided by how precedent gives or has applied those principles to each situation, and then you take that and you look at the new situation.

Many want nominees to be more substantive in their responses, but Sotomayor repeatedly refused to state what she personally believed a certain provision required. She looked at what the Court did. The process can give us less vanilla in this area, even if specific statements are really out of bounds on ethics grounds because it would in effect be a sort of prejudging. Long term appellate judges are better here, since others just might have out of court statements that actually address such issues. Sen. Coburn, a non-lawyer rather conservative sort provided some firm questioning, Scotusblog was impressed, including some perfectly fine questions like the role in technology when deciding cases. She did not need to avoid the question. Nor this one:

I don't want you to answer that specifically. What I would like to hear you say is, how did we get there? How did we get to the point where something that's spelled out in our Constitution and guaranteed to us, but something that isn't spelled out specifically in our Constitution is? Would you give me your philosophical answer?

The question respected the (in his view) explicit right to bear arms as compared to more implied (ditto) rights such as privacy. It's an interesting question on how the law develops, but as Gerken notes, that flexibility and life scares some people. Also, this back and forth:

In my experience, when I've seen other judges cite to foreign law, they're not using it to drive the conclusion. They're using just to point something out about a comparison between American law or foreign law, but they're not using it in the sense of compelling a result.

COBURN: I'm not sure I agree with that on certain 8th Amendment and 14th Amendment cases.

Fair enough, but the answer was not followed up, since it did not involve her infamous speech (the fact he focused on other issues, including self-defense and the meaning of "death" underlines why I liked his round of questions). I share Randy Barnett's thought that it was thin gruel at times (though I question if past hearings really offered us much more). For instance, Sen. Feingold asked her the process where a right is incorporated by the Fourteenth Amendment. This was in connection to the Second Amendment, but her answers did not even state the overall process used generally. Her answer also was a bit garbled as RB notes (he is more harsh).

[Update: The continual push for her to recuse herself if a Second Amendment case, not just the one she herself decided, does warrant harsh words. OTOH, both Keith and Rachel ignored that Coburn actually asked some real questions to focus on some lame joke he made ... after Sotomayor herself joked about a self-defense scenario she was setting up. That sort of thing annoys me ... Keith does it a bit too often.]

The use of Youngstown (actually Jackson's concurrence, which is at times treated as the holding) was as mandatory as it was token. Scotusblog (live blogging) appears to be correct that she was more comfortable talking about her life as a lawyer. Why not? No pratfalls about "judicial activism" there. She overall came off as intelligent, smart and carefully reasoned. Trying to find out her ideology ... well, good luck there. This includes (second round) when the issue of same sex marriage arose though she carefully addressed Baker v. Nelson.

BTW, overall, Franken looked a bit rough in his questioning. Had a light Perry Mason moment that got a laugh though. His comments on net neutrality did not really fit it well with the question related to a specific case. But, he got a good point in about the word "privacy" not specifically being in the Constitution being only so important. I'd add Dahlia thought he did well overall too.

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* She continues:

Someone reading these words might think that these are all code words for describing a "living Constitution," that they are intended to depict law as a tool for social reform. But I think my description would be instantly recognizable to lawyers and judges who flatly reject what has become the traditional liberal take on the law. Lawyering is a craft in which all of us can take pride.

I blame neither the Senators nor Judge Sotomayor for the rather sad and inert picture of the law they've given us. This is simply what judicial confirmation hearings have become. Still, it's too bad that what is perhaps the law's most public moment gives the public so little sense of what a remarkable institution it is.

I'd add that how can you not blame the senators? They are at least a wee bit at fault in how they run the process, right? As TalkLeft (or rather, one member) noted, the Republicans' (and here again Coburn underlines it is not just ideology alone) one track mind focus on the 'wise Latina' issue didn't help. Nice comment that pablum is better than b.s.

Abortion as a health issue

And Also: I type this before the closer comes in, but if I wanted to see a close game where an error and failure to tack on runs led to a NL loss (with a tease late -- of late, a Phillie would have feasted off the bullpen), I would watch a Mets game. If they win, cheers.

The hearings provide an educational function* ...

Sen. Graham appeared shocked that abortion might be seen as a 'health issue,' but for millions of girls and women worldwide it is. As Michelle Goldberg discusses in Means of Reproduction, the U.S. government was more comfortable with that reality once upon a time, but it is no less true today. In fact, Sen. Feinstein just this morning had a back/forth with Judge Sotomayor of the important of "health" when interpreting abortion regulations.

He is also shocked that some advocacy group would strongly support the need of state sponsored abortions. Various state courts have held that the right to privacy includes an equal application of state funding of such health benefits. The US Supreme Court has held this is not constitutionally necessary. Justice Ginsburg recently noted this surprised her at the time, that "woman has a constitutional right to place a higher value on avoiding either serious harm to her own health" in such questions was the minority decision.

It is not shocking that a women whose pregnancy is a severe threat to her health and well being would deem it a form of "slavery" to -- because of her poverty -- force her to have a child. We speak of "wage slavery." The term fits here too:

By restricting the right to terminate pregnancies, the State conscripts women's bodies into its service, forcing women to continue their pregnancies, suffer the pains of childbirth, and in most instances, provide years of maternal care.

[More here] BTW, when she says "Latino," she sounds very Latina.

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[Update] * (1) The NL lost again. (2) I turned it off because his tone annoyed me -- his suck-up voice -- but Sen. Schumer's time actually was informative too. It was clearly a "for the defense" effort (e.g., look she made some hard choices against sympathetic litigants), but that's part of the game.

And, her comments on use of foreign law (aside from dubious absolutes like "American law does not permit the use of foreign law or international law to interpret the Constitution") was actually quite useful ... if anyone paid attention. Contra Dahlia Lithwick who apparently rather hear protesters scream more "truthful" slogans. At times, her shtick annoys me.

And also

"The Obama administration announced Monday that it would seek to ban many routine uses of antibiotics in farm animals in hopes of reducing the spread of dangerous bacteria in humans." H/t Hilzoy -- important stuff, but it's not Palin related, so will the media have much time to report it? BTW, this was ridiculous, including the somewhat unknown "1/20" statute of limitations on the rule of law. Morons.

Sotomayor Hearings Begin

And Also: This candidate for Surgeon General sounds a bit more promising than the television personality who was name dropped earlier. Warehouse 13, shades of the Friday the 13th series with its damned objects theme, has some potential. Naked Fear combined some (plot related) nudity with enough value to make for some not bad late night cable watching. Credible exploitation fare can be harder than it looks. And, the first episode of Drop Dead Diva showed promise; let's see how the idea works.

The confirmation hearings for a perfect Obama candidate (overall a clearly qualified moderate but one with some signs of independence and forceful views -- someone whose heart appears to be in the right place, even if you might want a more liberal voice in certain respects) has begun. Does it mean something that it has begun during the All Star Break?

Dahlia Lithwick, a tad bit much, provided a somewhat cynical view of the Sotomayor hearings. The process as a whole had led to more information and overall value than some analysis suggests, while the less attractive components are likely to occur in some form at any rate. The process provides an important educational function (bringing with it some signs of mistaken views and prejudices). As suggested by Jack Balkin, the confirmation process also is a type of continual constitutional convention:

But what the candidates actually say is far less important than what the Senators expect them to agree with. By shaping the constitutional catechism at hearings, the Senate gives an account of what Americans expect from their Supreme Court Justices. This does not force Justices to do anything in later cases; but it does set forth the boundaries of what is "on the wall" from the standpoint of constitutional assumptions. In this way the Senate, which is always playing to public opinion and various constituencies within the public, helps to construct the boundaries of the reasonable and the mainstream in constitutional law.

The introductory remarks from the individual senators, including in a negative way from some of the Republican senators* (underlining why they should be in the minority; Glenn Greenwald on Twitter underlines the point), provide a basic reflection of this. Talkleft, for instance, rightly emphasized the remarks of Sen. Whitehouse:

Look at our history. America's common law inheritance is the accretion over generations of individual exercises of judgment. Our Constitution is a great document that John Marshall noted leaves "the minor ingredients" to judgment, to be deduced by our Justices from the document's great principles. The liberties in our Constitution have their boundaries defined, in the gray and overlapping areas, by informed judgment. None of this is "balls and strikes."

The whole process provides a useful function. As with everything, there are flaws. But, it also has clear value. In some imperfect way, the senators are not just representing themselves, but all of us. Not just the non-lawyers, like Sen. Franken (nice intro remarks).** It is messy, but political debates back in the times of Jefferson underline the differences are often more in degree than kind. In part, the fact it is more messy is a good thing, since the courts are so much more active (not the same as "activist") and powerful, and the process overall more democratic. And, if you do not want that, amend the Constitution so that it is not a political process.

Improvements are probably possible, but Scott has a good overall take.

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* The continual b.s. spewed by these senators include Sen. Hatch (oh so moral) lying that people who do not want us to take a few strand comments out of context (cf. Sen. Feingold's remarks) means they want us to ignore her speeches totally. Or, stereotypical uses of "empathy" or digs against President Obama, at times with a smile that is more like a sneer (sen. Graham).

Then again, Sotomayor said: "The task of a judge is not to make the law – it is to apply the law." That is, let's be honest, a bit lame. But, it's how the game is played. If we wanted more blunt truth telling, we would be talking about Justice Pamela Karlan.


** The junior senator from NY, as of now up for a major primary battle, knows how to sell herself. She lucks in here by getting prime air time as one of the two NY senators formally introducing Sotomayor, though her penchant for talking a lot got her in a bit of trouble at the end, Sen. Leahy basically cutting her off. She got in another twenty seconds.

Sunday Legal Musings

And Also: Jeff Francoeur's tenure started fairly well.

David Garrow's Liberty and Sexuality led me to Pavesich v. New England Life Insurance (1905), which might be the first court that expressly spoke of a "right to privacy," even speaking about the due care that should be practiced with newly applied rights. It involved a tort claim for unwanted publicity, but it set forth broad principles. A taste:

The individual surrenders to society many rights and privileges which he would be free to exercise in a state of nature, in exchange for the benefits which he receives as a member of society. But he is not presumed to surrender all those rights, and the public has no more right, without his consent, to invade the domain of those rights which it is necessarily to be presumed he has reserved than he has to violate the valid regulations of the organized government under which he lives. The right of privacy has its foundation in the instincts of nature. It is recognized intuitively, consciousness being the witness that can be called to establish its existence. Any person whose intellect is in a normal condition recognizes at once that as to each individual member of society there are matters private and there are matters public so far as the individual is concerned. Each individual as instinctively resents any encroachment by the public upon his rights which are of a private nature as he does the withdrawal of those of his rights which are of a public nature.

First principles are helpful when considering the true breadth of the National Surveillance State and governmental power generally so as not to be limited in scope to attacks on Cheney or the like. This general issue is a major concern of Jack Balkin. Relatedly, see also Glenn Greenwald today on signs there actually will be some sort of special prosecutor (or something) chosen to investigate the Bush Administration. The contours are hazy as of now -- fears it will be woefully limited -- and I reserve judgment. Don't want some shadow of an investigation, which will be token in scope, but enough for people to say "happy now?" [No]

Meanwhile, Hilzoy is concerned with news that some might be "targeting" Frank Ricci. The article cited (even if the source is generally to be trusted) is overblown with references to Anita Hill and the like. And, if making sure the press understands all sides of the story is bad, should the reporting by Dahlia Lithwick and others on his past discrimination plans be deemed problematic? Personal stories are used by both sides to understand legal principles as it can here, if done right. Anyway, good thing he was not a state employee when he sued for an ADA violation:

We decide here whether employees of the State of Alabama may recover money damages by reason of the State’s failure to comply with the provisions of Title I of the Americans with Disabilities Act of 1990 (ADA or Act), 104 Stat. 330, 42 U.S.C. § 12111—12117.1 We hold that such suits are barred by the Eleventh Amendment.

Maybe Sen. Specter, who is concerned with the lengths of the Court's federalist jurisprudence was taken, particularly in overriding federal law, can bring it up? Oh well ... at least Balkinization is lightening their more restrictive comments policy in important cases. And, a recent hit to my blog was to this interesting past entry.

Saturday Quickies

RIP Bonnie Tinker, who followed her family's activist tradition grandly. This is a tad ironic. Meanwhile, "perfect" is a team thing: yesterday's no-hitter (by a 3-8 pitcher) had one glitch: an eighth inning error. And, what GG said -- more "how shocking!" stuff that is far from surprising and only underlines how pathetic things are. Yeah, yeah -- change is slow. Blah blah. And, Obama's role should lead people to say "fu" when he suggests things like this.

Mets/Braves Trade (Really?)

This is probably a bit unfair (not all the numbers are worse), but either way, so what? I like Church, but he's not exactly a significant cog in the machine. And, the new guy simply is not that much worse. Plus, the team already spent money (much on DL) and have no prospects. What could they do? Maybe, shaking things up will help? And, both managers swap people they don't like. Still ... the Braves?

Justice Ginsburg Interview

[And Also: Salon has more on the below interview, particularly on stereotypes, and flows into some Sotomayor stuff.]

Emily Bazelon, of Slate fame, is the grandaughter of the grand liberal judge David Bazelon. A fact that some might know when they read her columns ... it does make her a perfect fit (as are her liberal/feminist views) to interview Justice Ruth Bader Ginsburg. We have seen more of Ginsburg of late, but it is not a new thing. For instance, she has multiple speeches (unlike many who have none) at the Supreme Court website. [Breyer and Rehnquist are next.] And, many reflect her lifelong advocacy for women's rights:

One last story from the 1970s: the case of Captain Susan Struck, an Air Force officer serving as a nurse in Vietnam where, in 1970, she became pregnant. She was offered this choice: Have an abortion on base or leave the Service. (Captain Struck's case antedated the Supreme Court's 1973 decision in Roe v. Wade, which held that women have a constitutionally-protected right to control their own reproductive capacity. In those days, several military bases, without fanfare, made abortion available to women servicemembers and dependents of servicemembers.) Captain Struck, a Roman Catholic, would not have an abortion, but she undertook to use no more than her accumulated leave time for the birth, and she had arranged for the baby's adoption immediately after birth. She sued to fend off the discharge Air Force regulations required. She lost in the court of first instance and in the Court of Appeals. But she was well represented by ACLU lawyers in the State of Washington, and each month was able to secure a stay of her discharge.

The Supreme Court agreed to hear her plea. It was an ideal case to argue the sex equality dimension of laws and regulations regarding pregnancy and childbirth. Solicitor General Erwin Griswold saw loss potential for the Government. He recommended that the Air Force waive Captain Struck's discharge and abandon its policy of automatically discharging women for pregnancy. The Air Force did so, and the Solicitor General thereupon moved to dismiss the case as moot.

She repeated the story in her most recent interview, and it deserves to be spread. [In the speech, she noted that now she could not only be a nurse (even if she was pregnant), but a pilot.] The fact the U.S. government actually encouraged abortions was also discussed in Means of Reproduction by Michelle Goldberg, which noted that our sponsorship of international efforts in population control (and well-rounded health care generally, which is still a controversial matter these days apparently) was so successful that other nations took the ball when conservatives in this country pushed things in the other direction.

In this recent interview, Justice Ginsburg reinforced what she said in her dissent a couple years back:

Reproductive choice has to be straightened out. There will never be a woman of means without choice anymore. That just seems to me so obvious. The states that had changed their abortion laws before Roe [to make abortion legal] are not going to change back. So we have a policy that affects only poor women, and it can never be otherwise, and I don’t know why this hasn’t been said more often. ... The basic thing is that the government has no business making that choice for a woman.

The interview as a whole shows the quiet power of the justice and reaffirmed that social change is a result of many things. An important advocate for women's equality in the courts knew this if anything more than anyone:

The Legislature can make the change, can facilitate the change, as laws like the Family Medical Leave Act do. But it's not something a court can decree. A court can't tell the man, You've got to do more than carry out the garbage.

All the same, it can (and as she noted, did) protect his right to be home on family leave while doing so.* And, though she is mixed on the whys, diversity is an important aspect of insuring this process. Overall, good interview, and it's good (even if Souter is no fan, even he allowed a recent panel discussion to be televised for C-SPAN) for justices to give the public a window into their views.

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* Speaking of family, there was an interesting bit of personal in this oral argument where Justice Ginsburg repeatedly referenced her granddaughter, who was born in Paris.