Argentina Protects Privacy: Marijuana Use

Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.

-- Lawrence v. Texas

Some constitutions expressly secure what the U.S. Supreme Court, following general recognized principles well accepted by the general public, has deemed to be secured by implication of general terms and principles.* For instance, the constitution of Argentina:

The private actions of men which in no way offend public order or morality, nor injure a third party, are only reserved to God and are exempted from the authority of judges. No inhabitant of the Nation shall be obliged to perform what the law does not demand nor deprived of what it does not prohibit.

Thus, in Argentina courts have spoken of the "right to privacy personal autonomy" and "the ability to conduct its life, decide on the best way to do it, self-reliance and tools for this purpose, selected and used with autonomy, which is a pledge of maturity and condition of freedom," while noting that the "state cannot establish morality." The limit is "as long as it doesn't constitute clear danger." The immediate source of these quotes (in translated from) comes from a recent ruling that secured the right to use small amounts of marijuana. The Alaska Supreme Court did the same in the 1970s.

As the articles discuss, there is a growing effort in Latin America and some nations in Western Europe (Glenn Greenwald has discussed his study of the efforts in Portugal) to bring forth a new drug policy, one that finds the criminal approach counterproductive. As the ruling here once notes, it "does not seem unreasonable hold that a State's punitive response to consumer translates into a re-victimization." This does not mean necessarily legalization, though that might be the path in some places for marijuana. But, it does suggest a push toward treatment and civil policies:

It followed Mexico's decision to stop prosecuting people for possession of relatively small quantities of marijuana, cocaine, heroin and other drugs. Instead, they will be referred to clinics and treated as patients, not criminals.

An ideal regime might be to allow the personal use of various types of drugs. Again, when small amounts of marijuana and various other drugs (including for religious or health uses) is involved, even civil penalties can be inappropriate. But, as a general matter, particularly given various forces (Portugal was restrained in part by treaty obligations that rejected legalization of drugs, particularly involving international commerce), a sane policy can provide a middle path. This includes, at the bare minimum, some sanity as to criminal penalties and clean needle programs.

As the Supreme Court has noted: "The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions." Some seem not to think this too relevant, or are convinced by fictional analysis of actual practice in respect to health care. Such closed minded ignorance is dubious there and the same can be applied here.

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* For instance, the "moral fact that a person belongs to himself, and not others nor to society as a whole" is a core aspect of "liberty" protected by the Due Process Clause (or Ninth Amendment, if you like).

Sunday Op-ed Follies

"Joseph Finder, who writes frequently on intelligence issues" -- particularly works of fiction -- wrote a piece (comments) bashing Holder's plans to investigate the CIA. Unsure why I should care about this guy. The sentiment that it would "delegitimize our government itself" to reject fraudulent "legal decisions" of past administrations is particularly not worthy of that.

The Basics

The importance of the basics needs to be repeated repeatedly, particularly since a strong minority (enabled by media voices) reject them. In September 2006, I noted something the Bush White House deemed essential:

The Long-Term Solution For Winning The War On Terror Is The Advancement Of Freedom And Human Dignity Through Effective Democracy.

I gave a few examples:

It does not fairly represent these decisions to suggest that they legalize force so brutal and so offensive to human dignity in securing evidence from a suspect as is revealed by this record. Indeed the California Supreme Court has not sanctioned this mode of securing a conviction. It merely exercised its discretion to decline a review of the conviction. All the California judges who have expressed themselves in this case have condemned the conduct in the strongest language.

-- Rochin v. California (1952) (forced stomach pumping)

The Congress hereby finds and declares that, in keeping with the traditional American concept of the inherent dignity of the individual in our democratic society, the older people of our Nation are entitled to, and it is the joint and several duty and responsibility of the governments of the United States, of the several States and their political subdivisions, and of Indian tribes to assist our older people to secure equal opportunity to the full and free enjoyment of the following objective.

-- Statement of Objectives (federal legislation assisting elderly*)

R-E-S-P-E-C-T
Find out what it means to me
R-E-S-P-E-C-T
Take care, TCB

-- Aretha Franklin

dignity

1. bearing, conduct, or speech indicative of self-respect or appreciation of the formality or gravity of an occasion or situation.
2. nobility or elevation of character; worthiness: dignity of sentiments.
3. elevated rank, office, station, etc.

The ends does not justify degrading human dignity ... most importantly because the ultimate end requires its security. Ditto restraint on excessive executive power and upholding the rule of law. As to torture in particular, I also referenced an article (new link provided in this post) by Jeremy Waldron which is entitled Torture and Positive Law: Jurisprudence for the White House. The core sentiment might be summed up thusly:

Why does the prospect of judicially authorizing torture shock the conscience of a scrupulous lawyer? Is it simply that the unthinkable has become thinkable? Or is it something about the specific effect on law—perhaps a systemic corrupting effect—of this abomination becoming one of the normal items on the menu of practical consideration?

Torture violates the basic core of our rule of law. But, 9/11 changed everything, right? Wrong:

I have heard colleagues say that what the Bush Administration is trying to do in regard to torture should be understood sympathetically in light of these circumstances, and that we should be less reproachful of the Administration's efforts to manipulate the definition of "torture" than we might be in peacetime. I disagree; I do not believe that "everything is different" after September 11. The various municipal and international law prohibitions on torture are set up precisely to address the circumstances where torture is likely to be most tempting. If the prohibitions do not hold fast in those circumstances, then they are of little use in any circumstance.

Torture and other mistreatment is not just done out of spite. Things we oppose, including by criminal sanction, often are understandable when done. But, this does not mean they suddenly become acceptable or advisable. In fact, again, torture and other things being done in our names (in restricted form, to this day) is pragmatically counterproductive. So is not upholding the law. As Ronald Reagan once noted, it

is required either to prosecute torturers who are found in its territory or to extradite them to other countries for prosecution.

Or, as the Supreme Court (in 2004) quoted with support:

the torturer has become–like the pirate and slave trader before him–hostis humani generis, an enemy of all mankind

Such an enemy's actions, particularly when it led to homicide and lives who will have the scars of their treatment with them forever (some of whom, as when Egypt tortured, will lash back via violence and enabling of the same ... and torture supporters will oh so strenuously denounce them) needs to be addressed with more than a "we won't do it any more, we promise," but a full accounting, including enforcement of the law as might occur in any other given serious homicide or heinous crime. The former approach is particularly suspect with secrecy and selective respect for the basic, consistent use of judicial review.

This should be basic and not selective. It should include those who enabled it, including via fraudulent memoranda for which there is strong evidence that they were as much CYA efforts to cover up and enable what had been done already (particularly given the strong doubts of those involved, including the FBI, of its legality and morality) and what was to be done. This is not accepted by many, including those who wish to make the test "does it work?" The idea that this means (the horror!) political revenge in effect gives people a pass once the administration is over. Suggestion: do a lot of bad things after November, since hey, if they are punished it's just revenge, so why the heck not?

Strategy can be debated, but the basic principle is crystal clear.

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* One might add, apropos Moyers on Maher, the moral / dignity backing of securing a right of health care for all. Meanwhile, Jack Shafer and a few others dwell on what Moyers did during the LBJ Administration. This is not too far apart from focusing on what Kennedy did forty years ago as you support, enable and ignore those who further murder and mayhem of many more people today. The theory of forgiveness aside (like I'm the best one to speak of Christian values), yes, I cry "hypocrite" on many people who love to use this as a means to denounce him.

Kennedy

Over in the comments at Balkinization, I have said some stuff about Kennedy. I will not repeat them here. One concern of some, which is true, is that his family gave his cause a bad name. As to filling the vacancy, see here, but I reject the constitutional criticism aspect.

Moyers on Maher

A lot of good stuff here: the need to say "enough" in Afghanistan, the interests winning out in the political arena, and that health care is a moral issue. On the last, for instance, so is the idea that illegals should be left to die or something? No money, no care for little Pedro. ["I'm hurt!" Papers please.] He could have been an OT prophet.

Books

Three new books on panel -- both "Alice" books (with that illustrator or not) are worthwhile as is Singing Songs, another book by Meg Tilly. A few not so great titles of late led me to keep one old book on.

TV Time

And Also: As with the number of walks (including numerous to the opposing pitcher and those while the bases were loaded), the number of injuries and their length on the Mets was not just bad luck. As with things like infield play and the inability to advance runners, these things happen to professional baseball players for a reason. Ditto bad off season choices.

I am reading a collection of essays about Gilmore Girls, a show enjoyed by yours truly until it jumped the shark after around five good years. The essays are not quite as critical as I might like [a few are though], though the one on sex makes some cutting points (and informed me Lane got pregnant), but so far it's pretty good.* After all, I'm all for discussion of pop culture, plus the messages it sends. See my various comments on abortion -- btw, add Teachers to the limited number of films that dealt with abortion. Overblown film, but good scene with Laura Dern post-abortion in the car.

The Perils of Penelope Pitstop. Starring those 7 rollicking rescuers The Ant Hill Mob, their courageous car Chugaboom... and that villain of villains, The Hooded Claw. Penelope Pitstop, heiress to a vast fortune, is in perpetual peril from her fortune-seeking guardian Sylvester Sneakley, who, unknown to her, is really the Hooded Claw.

So, this is a good time to have a television entry. One of my favorite cartoons is the rather twisted The Perils of Penelope Pitstop, which basically involves creative attempts to kill the female driver from Wacky Races, of which this is a spin-off. This includes repeated times when one of the Ant Hill Mob, Yak Yak, laughing about how Penelope is basically a goner. Of course, we know she is always going to get away -- villains who are overly talky or creative in their deeds tend to fail -- but still. The wacky insanity of it all makes it a fun show.

She was working in a bridal shop in Flushing Queens,
´Til her boyfriend kicked her out in one of those crushing scenes.

What was she to do? Where was she to go? She was out on her
fanny...
So over the bridge from Flushing to the Sheffield´s door.

She was there to sell make-up, but father saw more.
She had style! She had flair! She was there! That´s how she became
the Nanny!

Who would have guessed that the girl we´ve described, was just
exactly what the doctor prescribed?

Now the father finds her beguiling (watch out C.C.!)
And the kids are actually smiling (such joie de vivre!)
She is the lady in red when everybody else is wearing tan...

The flashy girl from Flushing,
The Nanny named Fran!

The Nanny also is fun, and loads of episodes can be found on Nick At Night (for some reason, Dish Network provides both East and West feeds of various channels, resulting in much more chances to see shows like this). The show clearly is partially inspired by I Love Lucy, particularly in its heroine getting into fine messes, having her employer (and finally husband) being upset at her wacky ways, and often involving celebrity guest stars. I also admit finding Fran Drescher cute in various of her outfits. Its sitcom plots are a mixed bag, but overall it is superior fare of its genre.

The value here, as is often the case, is superior support. Renée Taylor is great as her mother, the Niles/CC back and forth is fun (CC is wickedly fun), her dim but loyal friend Val is a good recurring character, and the family she works for is overall well played too. The children have independent personalities, though the girls (the youngest more so early) are given more complexity throughout. The children, particularly Brighton, grow up to be teen idol bait worthy sorts by the end of series. Overall, the show provides wit and fun with the safety of sitcom standards tossed in.

Let me add, as I did in the past, The Wizards of Waverly Place is also fun (Selena Gomez often shows a nice comic touch, while the character is also given enough of a softer side to make her well rounded too) -- love Harper! -- though these summer special events on Nick and Disney tend not to work. The only one, from those seen, that held up throughout (imho) is the extended episode of True Jackson.

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* The essays, over 80% by women, appear to be written around the start (or shortly before) the seventh season, so cannot provide a totally complete account. Looking at a summary of the episodes of that last season, most seem downer (Luke/Lorelai break up, she hooks up -- for a time -- with Christopher [blah], her father [again] has a health issue, Logan is around [blah], Lane has an unplanned pregnancy, etc. OTOH, the last episode sounds decent).

RIP Ted Kennedy

Pretty good obit. If health care is not passed, and passed in a way that is not some shell (e.g., no public option), it would be akin to spitting on Kennedy's grave. Listening Lieberman et. al?

Topless Protests Redux

And Also: A possible come from six behind victory ends with a 9-7 loss, closed by an unassisted triple play. Of course, it is against the Phillies, Pedro starting. What else can happen? Oh well, Santana is hurt now. The road to the 'B' Spring Training team (starters: Pelfry and scrubs) is about complete now. Perez also might be gone for the year, but that's not exactly a bad thing.

Yesterday, I provided a quickie post on protests this week in promotion of the right of women to be topless in public. On some level, this right is a tad absurd -- New York, as a link provided noted, has for years upheld the right of women to be topless in public places for non-commercial reasons that are not lewd. Since topless dancing did not meet this definition as far back to the 1970s, per state court precedent, "lewd" clearly has a strict meaning. Not too many women walk topless here.

Topless rights do touch upon various situations more likely to occur. For instance, there are times when being topless is more common, including in certain types of parades (e.g., Gay Pride parades, which tend to promote a general freedom to express who you are) and in parks/beaches. Protests of other kinds, including against war or animal use, also at times includes some toplessness. Breastfeeding also is an important matter, particularly when "public" includes shopping areas and the like. Or, the recent controversy over pics on Facebook. Furthermore, again as the previous post noted, certain clothing leaves little to the imagination.

One link went to the website promoted by Sandra Day O'Connor, which has the purpose of educating schoolchildren about the law. A game is provided in which you are a law clerk to a swing justice in a case involving a school not letting a student to wear a band t-shirt. As the "fishnet" case noted, limits on clothing are to be looked upon with disfavor. Schools are something of a special case, but topless issues touch upon broader matters of personal expression, which might have clear "speech" elements as well as "simply" a matter of personal autonomy (Justice Powell, e.g., "liberty interest within the Fourteenth Amendment as to matters of personal appearance").*

A similar thing can be seen by use of let's say marijuana. It was (and on some level continues to be) as much as a symbol of a certain sort of person as anything else. Ditto cigarettes, actually. Restraint is seen as a slam against such people and even freedom itself. Thus, even if you don't think being topless is a major concern in itself, backlash can have troublesome connotations. Male and female toplessness is not quite "equal," but targeting one over the other, particularly when what matters is a speck of clothing, does burden one group over the other in dubious ways. More so the broader point of double standards that harm women regarding appearance issues.

This is not really about the right to walk down the street topless. It is ultimately about a lot more.

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* Once you start to discuss the matter, a whole realm of issues can be touched upon. For instance, what you do on your own property (or in a car) that might be visual to the public in some fashion. What will be allowed on magazine covers, television (VH1 blocked out nudity in bathing scenes of Woodstock), or even to be processed in film labs? Breast issues as a whole can be talked about, including implants and so forth.

Health Care Reform Myths

Here's a good set of myth busters. Myth promotes a higher "truth." What we "know" (fs), even if not reality. Death panels over sound end of life counseling. Illegals? Jesus didn't mean them. Abortion? Selective morality and ignoring clear health reasons. Vets? Who truly cared for their interests? Seniors? Who wanted their retirement to rest on the market? Rationing? Nope. etc.

Feature Not A Bug?

TL: I've always looked as you as a loyal soldier. You've been incredibly loyal to President Bush.

Gonzales: When did that become a bad thing?

IG Report

The highlights include: (1) mock executions; (2) threatened rape of family members; (3) threatened murder of children; (4) kicking and beating a detainee with a metal flashlight to death; (5) threatening naked hooded detainees with power drills; (6) blowing cigar smoke in detainees' faces until they got sick; (7) waterboarding with massive volumes of water far beyond what OLC authorized (to make it "poignant"); (8) stress positions that nearly caused shoulder dislocations; (9) scraping detainees with stiff brushes; (10) choking a detainee with one's bare hands until they nearly pass out; (11) subjecting detainees to extremely cold temperatures and water dousing; (12) "hard takedowns" (sometimes in diapers); and (13) beating detainees with butts of rifles (followed by kicking them).

See here (with further links). As Glenn Greenwald et al. notes, the ACLU is to thank for bringing out such things, the report on the lawyers (like Yoo) is still held back, and limits on the prosecution is nauseating. I disagree the path is worse than nothing, since I still think it might lead to more that can affect higher-ups. I denounced the CYA of Yoo by his colleagues here. [Contra] And, let's also look at the glass half full.

But, some half-assed investigation (which took much gnashing of the teeth to get; pathetic!) that takes as a given perversion of the law (don't worry, we find it horrid ... the next administration can do the same thing, and we'll think that too, so sad) is obviously not enough. What more do you want to show this? What bloody else? This also has a "chicken and egg" tendency -- many want a complete investigation; putting that aside, having our Justice Department do something like this promotes as legitimate such partial justice. [Update: Eugene Robinson hits it. Nice to see the paper's op-ed crew giving space usually dominated by the likes of Charles Krauthammer and other morons.]

Again, you might want to re-title that campaign bio of yours. Someone might sue you for false advertising.

Kayla Williams

I recently re-read my comments on Kayla Williams' book on her experience as an Arab linguist. Her diverse subjects can be seen in her Huffington Post entries (military service, gender, torture, vet injuries, etc.). See also here. Again, very good book. Nice verve.

Use Proper Sunscreen!

There are demonstrations this week to promote an equal right to be topless. This is to oppose puritanical values and inequality while promoting healthful pleasure and basic freedom/protest. One court case involved a "fishnet pullover through the openings of which the areola portions of her breasts were visible." Non-lewd exposure in public is protected here as is breastfeeding in public. More on here.

Health Care Reform Unconstitutional?

And Also: To add to the recent Meg Tilly book review, it is notable for how showing certain horrible things are taken for granted when you are living them. As the author herself noted, a great thing for her now is having the ability to freely buy groceries. Many cannot do this.

David B. Rivkin Jr. and Lee A. Casey think the lead proposed federal health care (insurance?) reform proposals are unconstitutional. To be fair, they only address one issue -- an individual mandate to buy insurance. [Others have more broad concerns.*] Unsure if they think the courts should do anything about them, particularly since the op-ed ends thusly:

The genius of our system is that, no matter how convinced our elected officials may be that certain measures are in the public interest, their goals can be accomplished only in accord with the powers and processes the Constitution mandates, processes that inevitably make them accountable to the American people.

The people who support the health care reform, including such mandates? Part of the "genius" is an independent judiciary to guard against the government going beyond its limited powers, but the tenor of their Slate piece puts such "second guessing" in question. Thus, as I note here, it is somewhat besides the point to note that current constitutional doctrine makes their arguments ridiculous. They are ultimately voicing a minority point of view, making a political argument, even if they cite a few court cases in the process. This is okay up to a point, if we understand what they are doing and how shallow their reasoning ultimately is.

They address commerce and taxation defenses. The first, they say, doesn't work for:

The otherwise uninsured would be required to buy coverage, not because they were even tangentially engaged in the "production, distribution or consumption of commodities," but for no other reason than that people without health insurance exist.

Who are these people not "even tangentially" so involved? Well, what about taxation? They cite a 1922 case though constitutional doctrine has changed a tad since then. Not enough apparently:

Although the court's interpretation of the commerce power's breadth has changed since that time, it has not repudiated the fundamental principle that Congress cannot use a tax to regulate conduct that is otherwise indisputably beyond its regulatory power.

How about the power to tax and spend to "promote the general welfare" as noted in a ruling in the 1980s, not the 1920s? Is the health care fundamental to that, including equal protection to enjoy various aspects of citizenship? They also suggest:

Of course, these constitutional impediments can be avoided if Congress is willing to raise corporate and/or income taxes enough to fund fully a new national health system.

What is being offered here if not such "taxes" as such? For instance, "failure to comply would be met with a penalty," which means a tax. A tax constitutionally imposed.

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* One idea is that a personal right to individual health choices is being violated. I'm glad some conservatives respect a broad right to privacy (sometimes a tad ironically). But, putting aside that current insurance plans repeatedly already interfere with patient/physician interactions as do a myriad of laws (e.g., those against medicinal marijuana or various informed consent rules), it is unclear what the problem is.

Are you forced to go to a particular doctor? The fact you have to pay for the alternatives doesn't change your freedom of choice. Similarly, the fact public school offers various subjects a parent doesn't like doesn't mean the parent has a right not to have to pay to avoid such subjects.

Akilah Amapindi

The sad death of a young journalist, Akilah Amapindi, was in the news about four years back. My brief discussion of her life and death can be found here with a few more links (one providing audio) since some are defunct. A recent comment there underlines it is one of the few posts here that has received repeated hits. It is nice to know she is still in the hearts and minds of many.

Another Meg Tilly Book

Singing Songs is a collection of vignettes spanning about eight years during the life a girl growing up in an abusive childhood during the '60s that we later learn is based in various ways on the author's own childhood. MT has the voice of "Anna" down, providing a window into childhood among it all. Very good, if hard to read at times.

Various

This CYA job in defense of Yoo is distasteful, though Balkinization has a history sucking up to this argument. I'm glad that Mark Field provides support to my comments. See also, the "room for debate" link, including the last person who at least understands what is at stake. Meanwhile, Dawn Johnsen continues to get the shaft.

Mexico enacted a controversial law on Thursday decriminalizing possession of small amounts of marijuana, cocaine, heroin and other drugs while encouraging government-financed treatment for drug dependency free of charge.

Sanity.* Meanwhile, Jon Stewart acts like a journalist yet again, particularly as to "death panels," but even as to knowing the basics of my former lieutenant governor's (imagine if Pataki had to resign -- another case of the perils of not putting too much thought into second in command picks) health plan. Why cannot Rachel Maddow and so forth have such substantive examination of pending legislation? As with my first reference, it really is pathetic when you think of it.

Back in 2004, I supported Howard Dean for President. Some people ridiculed this choice, particularly when he said things like this, which obviously showed that he didn't know how to be a good political tool (or something). It's hard to prove what really went on here, though the snide ridicule cited is not the way to go, obviously. But, overall, I repeated felt Dean was on the right side, even if his tax policy or stance on Iraq was deemed intemperate. His "scream" also was blown out of proportion too, as stupid really as all those Gore "lies."

So glad that Kerry guy won the nomination, so the Dems could lose while feeling good about themselves. After all, it wasn't really our fault. Clinton? Oh, he's a rare egg, can't find such a good personable politician more than once in a generation. Next you'll be telling us a one term black senator would win the White House. Come on! One thing Dean was denounced for was that he wanted to give Bin Ladin, if caught, due process. Saddam Hussein was given some form of that. I was with him there too. And, I -- unlike the official Obama line -- think this right.

Dean btw was no "left of the left" sort. That was one slam by some Kerry supporters over at Slate, for instance. But, I was okay with that, since politically you have to compromise sometimes. So, you see, I don't mind that aspect of Obama. The problem is you also have to play tough sometimes, especially when the other side is full of shit. I'm not game for this "the sky is falling" stuff either. Unless it is to say "wake up!"

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* I recently read Ryan Grim's book on our drug policy. The best parts were a few personal accounts of his own drug use and a look at the smearing of the (more true than not) account that CIA backed Contras -- while the U.S. looked the other way -- was a major player in the West Coast drug trade. Washington Post sorts denounced by Glenn Greenwald apparently aided and abetted the official line for years. The counterproductive nature of D.A.R.E. also was a good chapter.

On the whole, standard "reality community" drug policy coverage that at certain points was not very deep.

"The left" is at it again!

And Also: Two years seems a bit much, but J. wants community service for someone whose illegally possessed gun went off in a crowded public place. After all, it's unlikely such reckless sports stars will mess up again.

Responding to a question from Smerconish, Obama said, "The press got excited and some folks on the left got a little excited" when the administration last weekend made statements indicating that a federally run health insurance option was just one of several alternatives.

Can we SFU about "the left" or maybe the "left of the left" as if they are just a bunch of irrational* crying babies, or something? A quarter of the Democratic Caucus in the House signed a pledge drawing the line in the sand on the public option. Why? Because people knew they were being screwed. Now, "reasonable" sorts are saying (oh how unfortunate) they have to settle. It's sad and all, but reform is sooooo hard, especially when these people are "the principal voice" in the debate. Don't "the left" understand? Can't they be more like "centrists" like Baucus?

There are other things to bear. Glenn Greenwald and others can tell you about the secrecy and limited rights of detainees. Luckily, we have a judicial branch that "second guesses," so there is some pushback there. But, we still have him saying things like this, underlining why I opposed his "don't worry, I'm not a peacenik, look at my Afghanistan policy!" platform last year. The recent past had this, reminding us of this:

He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.

Politics is the art of the possible and pressuring those in power that more is possible. OTOH, we were sort of misled to expect (hope for) "audacity," when what we get is a lot less. "Sir, can I have more?" Or, perhaps, we are meant to settle?

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* This is the path to insanity. After the cows are out of the barn, perhaps, it is admitted that yeah, there was a risk of escape. BTW, sure, everyone knew that. Yawn.

I Can Do What You Can Do Better

After hitting and bad fielding resulted in an eight run inning for the Mets, the same happened the next day for the Braves, followed by an even more embarrassing whipping. On Ron Darling's birthday. Shame!

Good Start, Madam Justice

Meanwhile, new option for 2012 (2016)?

Detail Left Out

Telling part of this summary of last night's Mets addition to the record books (10 hits in one inning, first time in its career) is that an important part of the inning is left out -- at least one or two key non-plays that could have got the Braves out of the inning. This happens too much in news accounts. Luckily, Perez got out of the next inning, and the Braves actually didn't score any more runs. 8-4 in the fourth really is not a gimmee with this team.

A Less Offensive Defense of DOMA

The Obama Administration provides a less offensive brief in support of DOMA. But, disagreement on a "policy" ground is not enough. If it is "discriminatory" it is UNCONSTITUTIONAL. The "rule of law" (selectively upheld, see torture) includes the "supreme" law of the land. Its limited defense also provides thin "rational basis," particularly since DOMA did more than uphold the status quo. OTOH, this might not be the strongest lawsuit in the pipe. See, e.g., the one pending in Massachusetts and the Boies/Olson lawsuit.

Troy Anthony Davis Hits The Judicial Lottery

And Also: Though it got the ending reversed at first, here is the exciting finish to the Giants/Carolina game, not quite as important as the exciting finish last December (or the upcoming match-up). Officially tired of BF.

Of one thing, however, I am certain. Just as an execution without adequate safeguards is unacceptable, so too is an execution when the condemned prisoner can prove that he is innocent. The execution of a person who can show that he is innocent comes perilously close to simple murder.

-- Justice Blackmun

Earlier today, I cited Bob Dylan, who was stopped by the police while hanging around before a gig. The link fit it into a broader context, shades of Gates (remember him?) without the racial anger or beer. The same, in a fashion, can be done with Troy Anthony Davis. There are over 3200 people on death row, but a few get most of the attention. Unlike the cop killer in Pennsylvania, Davis probably deserves more. He will get some via a special Supreme Court order.

The matter is addressed from both sides of the divide here and here. Some general comments about the death penalty can be found here [comments*] as well. The NYT recently discussed how lower court judges were concerned about the death penalty, particularly after the Antiterrorism and Effective Death Penalty Act of 1996, one judge at least involved in the Davis case. A special factual hearing given the high standard suggested by the majority (even the dissent) of case cited at the beginning of this post is of limited value, but you take what you can get when:

seven of the State’s key witnesses have re-canted their trial testimony; several individuals have implicated the State’s principal witness as the shooter; and “no court,” state or federal, “has ever conducted a hearing to assess the reliability of the score of [postconviction] affidavits that, if reliable, would satisfy the threshold showing for a truly persuasive demonstration of actual innocence”

Justice Stevens (with Breyer and Ginsburg) concurring to the special habeas order involved, one apparently last used in the 1960s. Justice Sotomayor was not involved, but she did join the libs to dissent from a rejection of a stay of execution (which was carried out this morning). This was another one of those cases where there were strong dissents below. The immediate issue involved lethal injection protocols but other matters were involved too as one article suggests:

The Ohio Parole Board by a 5-2 vote last month recommended clemency for Getsy because other defendants in the slaying, including Santine, appeared just as guilty but weren't sentenced to die. Gov. Ted Strickland overruled the board last week, saying the sentencing disparity did not by itself justify granting clemency.

Appeals courts previously have questioned Getsy's sentence. A three-judge panel of the 6th U.S. Circuit Court of Appeals overturned his sentence in 2006, saying it was arbitrary. The full 6th Circuit reinstated it in 2007 in an 8-6 ruling.

More on the case here. One mind-set when I noted this footnote in Sotomayor's career (first death penalty ruling?) was that "good, the scumbag is dead." Some don't care that the death penalty is akin to Russian Roulette, arbitrary application of justice is better than none at all, I guess. BTW, in Georgia, the governor does not have the power to commute Davis' sentence. The board involved turned him down (even with support from the likes of a former FBI head and conservative Bob Barr) with thin discussion of why (leading even a conservative who is no fan of stringent federal habeas review to be concerned).

In Herrera v. Collins, the source of Blackmun's words, the majority left open a chance for an actual innocence claim that would particularly strong. It is sound policy, even in death penalty cases, to strongly respect jury verdicts, particularly with constitutional safeguards in place and the power to commute or pardon available. This latter power is clearly weaker in practice in certain states. All the same, there should be an exception when there is a clear chance of innocence. The courts provide a special safeguard, especially in Death Belt states, and federal habeas provides one last barrier to injustice.

It should not have to get that far. When there is some clear doubt, state officials should at the very least commute the sentence to life in prison.

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* See, e.g., this link as to the state of our criminal justice system as a whole.

Michele Bachmann

Michele Bachmann is being ridiculed for saying she will run for higher office if God told her to do so. People are guided in what they do in various ways, including some higher calling, be it God or something more secular sounding. This includes various sorts with no chance campaign runs. Meanwhile, Bob Dylan is assumed to be casing a house or something. Papers please!

The Matzo Family

A family history -- centering on the first generation -- with shades of historical fiction ... "captures the essence of the reality," according to its author. Manischewitz: The Matzo Family — The Making of an American Icon was an enjoyable read with some knowing nods, one or two a bit naughty. More about the company.

Insanity

Bowing to Republican pressure and an uneasy public, President Barack Obama's administration signaled Sunday it is ready to abandon the idea of giving Americans the option of government-run insurance as part of a new health care system.

Can't have this as the message. It would be insane. BTW, "must include an insurance exchange ... including a public option" means what exactly? If we can't take his words at face value ...

TV and Julie & Julia

And Also: As to the last entry, in the comments of the original referenced post, the author there suggests that he is wary about the public option as likely to be passed anyway. But, this is not the tenor of the entry itself, and even there, "Ben Alpers" has it right. Maybe, I should just read about this thing: a "wait and see" path seems best.

Television: I like Drop Dead Diva (good acting and writing overall; scenario so far has also been fairly handed well), but it has to stop with these totally happy ending completion of Debs' cases. Today a suburban mom/nurse turns out to be a fugitive who long ago was a driver in felony murder case. Her sympathetic turnaround (helped when, after hearing her on the stand, her husband forgave her) led to a lesser charge conviction. She was given community service. After all, even a day in jail would be depressing, right? Come on! Deb/Jane's friend hooking up with her guardian angel/mail room clerk also is a bit much for me. I can let that go.

Meanwhile, the ending of Army Wives today was a bit much -- as if CJ didn't have enough already. It was a cliffhanger, so it's unclear exactly what happened, but she has already been part of a hostage situation and a murder, each which led to deaths (the latter, including her own daughter). Enough already.* Overall, it was a good episode -- the grandmother from Gilmore Girls has popped up places before, and generally appears to have a lot to offer. Also, the show continues to balance a lot of serious subplots (including soldiers dealing with emotional issues and young girls' body images) rather well.

Film: I have not seen many films at all recently, partially because it has been thin fare. The few I did or could see tended to be independent or foreign type films, including a small scale option like Easy Virtue (pretty good). There are a few big ticket films out there, but they are not generally to my liking -- I even had negative feelings about Star Trek, though liking parts of it. One much praised horror film turned out to be a disappointment. And, now, I read that basically everyone seems to think the new time traveler movie is like totally lame. Julie & Julia is somewhat of an exception to this.

The idea is that "Julie" (Powell) is a wannabe writer who decides to write a blog (before they were as popular) in which she discusses how she went through "Julia" Child's cookbook in one year's time. Meanwhile, we watch Julia Child learn how to cook and struggle to write her own book. Amy Adams, who was great in Junebug, Enchanted and Miss Pettigrew Lives for a Day played the modern day character. This was better than Sunshine Cleaning,** lame indie, but it was pretty bland stuff. Nora Ephron might relate to this writer couple (one an editor -- though the husband is totally forgettable -- the other a writer just waiting to come out), but I'm not sure how much of the general public will. Amy is due for a better role soon.

The reason to see this film is the Julia Child. Might be a bit too long; her story seems to run out of steam toward the end, popping up again when her book is finally picked up by a publisher. Still, you don't really mind because Meryl Streep (again, as in Mamma Mia!, playing someone younger than her) is wonderful -- it's not too early to raise talk of Academy Award nominations. But, Stanley Tucci as her husband is wonderful as well (supporting nomination nod?). As are a few others in smaller roles [talking about that, the film makes her look very tall here ... figure it was some sort of filming trick] in her story. The movie also does a nice job with the middle aged love story angle as well as touching upon some politics (McCarthy).

Overall, "yum!" I'm sure there is a food/social history aspect that can be injected here. How her French cooking book for the regular housewife sort etc. was some important moment or something, though the film does not really go there. It is more about her personal story and love of life, including how much her husband adores her. This inspires the modern day Julie, who needs some self-confidence. She too loves food and has a supportive husband. But, they are a pretty bland couple, and when she's told by a reporter that Julia Child was not impressed with her blog (just heard secondhand, we don't really learn what this is all about), we can relate. [JP explains a bit more here.]

But, Julia and Paul Child provides reason enough to see the film. The rest goes down okay. I guess Amy Adams' character can be like us -- being guided by a great, but being relatively mundane. Still, what a contrast!

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* I don't like to watch "scenes from next week," but apparently they suggest something not too bad. Previews of Lifetime shows at times are spun in misleading ways, such as what turned out (not too surprisingly) to be a dream sequence in Drop Dead Diva today. Anyway, it still was -- either way -- a sort of "enough already" type ending.

** This film did have Mary Lynn Rajskub, a quirky supporting actress, perhaps leading the way for her small role in this one. Many might recognize her from 24, but I'm not a fan of the show. Oh, Mary Kay Place plays Julie's mom on the phone. For fans of her voice, that's a nice touch.

How Not To Handle Things

This suggests that this is particularly stupid, even if this suggests he realizes his kneejerk need to start worry about caving to Republican and Blue Dog pressure was unnecessary. Dems have to play from a stance of strength here, especially when the opposition is looking like total asses right now. If Obama actually was dropping feelers here, the right path would be to up the pressure. Not act like a weenie.

Whole Foods Flare-Up

Not too long ago, I read an article about the CEO of Whole Foods suggesting he was an animal friendly sane sort. Now, we have this though see this and this (inside view). Reference made to Trader Joe's ... uh, what's their policy? Heck if I know. Good wine shop though. Talk about expense; but WF has a reasonable store brand. Bit knee-jerk reactions. At some point, sorry, I say "enough!"

Why were Laura Ling and Euna Lee in North Korea?

As Feministing notes points out: to investigate human trafficking, an issue of fundamental importance. But, as is often the case, other things dominate the coverage. How often I read an article and important things are left out or underreported.

Porcupine

And Also: You take what you can these days, so Bobby Parnell's second start last night was in particular a gem. Not quite so much his first -- shorter than his previous long relief outing. As to football, the first Jets game fell to some late game back-ups. The coach du jour apparently is having a baby ... about due from the looks of it. Cubs, who have slipped, also had a good day.

And last but not least, my thanks to all the people in distribution, the book reps and buyers, the bookstore owners and librarians. These are the people who are responsible for getting my book into the hands of the reading people. A most important job, and I am very grateful.

-- Meg Tilly, Acknowledgments for Porcupine

Late night television is a bit thin these days, particularly after 12:35. Not quite when Conan, or even Dave (ancient history!) were options. And, a few years after Dave moved up, we had Tom Synder. Older viewers will remember him from before, but I know him from the few years when he followed Dave. He was an interesting, a bit off kilter, sort of interviewer, and seemed like a throwback. My favorite guest was Jennifer Tilly, who comes off as a bit of a nut. You know, in a good way.

Her sister* Meg Tilly was also a film actress, but was a much quieter sort -- no Bride of Chucky or lesbian vamp for her. Both sisters are half-Asian, both taking their mother's maiden name. You can sort of see this if you look at them, but it is an example of ethnicity adding a taste without us thinking about it so much. For instance, it took me a bit to realize (yeah, her name is a flag!) that Cameron Diaz has Hispanic in her background (her dad is Cuban). Anyway, Meg retired from acting in the mid-90s to raise her family and write.

She has a nice website and blog, the latter also points the way to her daughter's blog, currently about some project she has letting people control her days such as using a wheelchair all day. Meg started by writing a book that was in effect about her own childhood, which involved child sexual abuse. A follow-up also addressed such a subject as she discussed here. Not quite young adult fare, though some could handle it (I have the books on reserve), but when she was given the chance to go that route, she wrote wrote Porcupine. It has some of her childhood in it as well, one where books played an important role:

They gave me windows into other peoples lives, showed me there were other ways of doing things, other people who survived hardships and how they coped. They showed me what was possible. Or there were the comforting books of normal everyday life with a mother and a father and warm cookies after school. I also loved the historical books that would take dried up, dusty old history and make it real, tangible, engrossing. There were magical books that filled my heart with hopes and dreams, of fairy tales and escape and maybe someday it would happen to me. The library and the books it supplied was a great source of comfort to me as a child and young adult.

She notes that the book is particularly geared to young adults but is really for readers of all ages. I agree -- many good young adult fare can be enjoyed by people like myself, just as some books targeted to adults can be enjoyed by teens. Porcupine concerns a twelve year old tomboy from Newfoundland (Meg grew up in Canada, so the local flavor is written from experience) who moves with her younger brother and sister(after her dad dies in Afghanistan, her mom not able to handle it) in with her great-grandmother in much different Alberta. Jack (Jacqueline**) has lots to handle, including money problems, the stress of abandonment, her brother having a learning disability, and so forth.

This is all shown through her point of view, using a first person narrator. And, she is no all knowing sort -- she is a twelve year old girl, with her own strengths, limitations, insights, and has things to learn. We are on her side throughout, including a couple downright exciting moments -- the time when she kills a snake threatening the family dog might be a highlight. The countdown to a scary meeting with a school official, one that doesn't quite go as planned, also was a nice touch -- flashbacks to school! As with all good fiction, the supporting characters also are drawn well, again we obviously see them through her eyes.

BTW, a few people (if Amazon is a judge) were turned off by the bad language. The mother curses in some stressful situations as does Jack (her attachment to her dad and desire to be "tough" might suggest why she uses such "manly" language), but overall she is not just some little potty mouth. Her great-grandmother scolds her for saying a dinner was "damn good" after all! Still, such criticism is interesting -- I got in some debates online about how the teenage daughter on Army Wives dealt with the murder of her sister, for instance.

Recommended.

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* I would say "younger" sister [and Meg Tilly speaks of another sister being her "little sister" in the dedication to the book referenced here], but there is a dispute as to Jennifer's birthday.

** Tomboy or not, her inner beauty is apparent when we recall that all Jacquelines are beautiful. At least, that is one reason why my sis chose that name for my niece.

Slate Quickies

There are some good ideas here about addressing racial inequality in health care. I do think various groups still need some special concern: neutral concern for need deals with the person too, right? I also counter someone a bit too hung up on smoking. I bash b.s. judicial supremacy ranting. Also, as to immigration policy.

Vick to Eagles

Athletes involved in heinous crimes against persons get second chances, so it is okay that Michael Vick will. I'm a bit surprised the Eagles, even with an injury to a back-up, signed the guy. You got a second chance ... don't waste/abuse it. More here.

Choice?

Item: According to a recent Gallup report, only 13.3 percent of Americans with health insurance purchase their policies on the open market. The remaining individuals are enrolled in either state-sponsored plans or in employer plans that are heavily subsidized by state and federal tax policy. The notion of a free market in health insurance is a myth for the vast majority of Americans.

Fiction is fiction, be it myth or stressed out ranting (of citizens or those who exploit them). Too the idea illegals can just be denied health care, except I guess, cute kids and those contagious or whatnot. Jesus will be proud! More here.

SC Quickies

Interesting account of Justice O'Connor's continual judicial service pursuant to this law. Justice Sotomayor has her White House reception (Stevens and Ginsburg in attendance). Melissa Rogers goes back on hiatus. BTW, just re-read Active Liberty (analyzed here) by Justice Breyer ... goes to show it is not just about applying the law.

Why Are These People Dominating the Coverage?

As tempting as it may be for progressive media to focus on conservative insanity, and as rewarding as it might be in terms of audience size, to win the health care reform debate we need to focus on more than what wingnuts are saying. The narrative of the average American versus a for profit health care reform industry needs to be cultivated to a much greater degree.

And, more on the details of the proposals and the people they would help. Remember: all publicity on some level is good publicity.

In the wake of Monday’s lackadaisical loss, Manuel said he wanted the Mets to “at least look the part” of major leaguers. So they did, carrying bats to the plate and wearing gloves in the field, and at times even doing the appropriate and intended things with the equipment. Manuel did not specify that he wanted them to win, too, so they also looked the part of the Mets, losing for the 10th time in 13 games, this one by 6-2 to the Arizona Diamondbacks at Chase Field.

No, MLs actually win games against mediocrity. When Ron Darling is calling the team out on air, things have been taken to a new level.

Internet Happy Box

Drug/Terror War

Fifty Afghans believed to be drug traffickers with ties to the Taliban have been placed on a Pentagon target list to be captured or killed, reflecting a major shift in American counternarcotics strategy in Afghanistan, according to a Congressional study to be released this week.

The whole article only underlines the "this sounds messy" nature here though some find it a great idea. More here and here.

Science Cheerleading

And Also: I respond to a LAT article that suggests some in the Administration wants to stack the deck against even a woefully limited torture investigation. The media and administration both come off badly. BTW, this article underlines how science is also key to national security. Sounds like an old West Wing episode.

A bit more building off yesterday's entry. It is a mixed bag to respond to specific people, since there are so many out there, so unless they are particularly important, the fact that they are wrong is of limited importance. Still, my long term pleasure in reading op-eds (now blogs) is that they provide a workable platform to consider a certain matter. So, though the desire to point out that someone online is wrong is a never-ending road to insanity, it can be a useful endeavor.

Looking at the background page to the science cheerleader, we learn part of her mission is to advance:

A process to unite the citizen’s desire to be heard and valued, the scientist’s growing interest in the public’s involvement, and government’s need to garner public support.

More power to those angry and demanding their government listen to them and care for their interests. Still, bare belief and venting is not enough. The scientific method (Wikipedia) is telling:

Scientific method refers to a body of techniques for investigating phenomena, acquiring new knowledge, or correcting and integrating previous knowledge. To be termed scientific, a method of inquiry must be based on gathering observable, empirical and measurable evidence subject to specific principles of reasoning. A scientific method consists of the collection of data through observation and experimentation, and the formulation and testing of hypotheses.

Chris Mooney, of the Republican War on Science fame, has gotten into some trouble in his campaign against "new atheists," who he feels are too over the top against religion in general. This is a (tedious) theme over at the comments at Amazon on his latest book, but suffice to say he might have gone too far. Still, the basic idea is sound: in fact, "bare belief" is used advisably. Religion, even as generally understood, is not really the problem. It is certain types of irrationality. Evangelists in the campaign against global warming shows this.

I think a rational application of public policy, the "reality based community," is a basic part of being a progressive. In fact, it might be what is different from being "progressive" and "liberal" in a certain sort of way -- a different flavor, perhaps. Science policy was an important theme of mine back in the days of the Kerry campaign as well. As I noted then:

And in a broader sense, a more nuanced moral understanding of the world we live in, including not limiting the "health and well being of the many" for the beliefs of the few. Not just scientific research, but abortion, condom use, euthanasia, homosexuality, medicinal marijuana, and a lot more is at stake. A simplistic view of public values, one that all too often interferes with the rights of others with a contrasting moral belief system that deserves equal respect in this nation (and sometimes internationally as well), mixed with partisan politics is just one more reason to vote the current bunch out of power.

The name of the post was "Ron Reagan and Bush's Science Policy," but obviously it was about more than science. Science retains its important place. The path is a rational one, one where homosexuality is seen as what it is, as a benign part of human existence. Does not "empirical and measurable evidence" show this to be the case? The "equal respect" I spoke about includes those some scientists might find irrational sorts. Science, however, is an important component of a moral worldview, the one that sound public policy should promote.

The moral worldview, the use of science, goes beyond mere science into politics, religion, and other matters. Science and rational policy, including when opposing the other side, retain a key place. Jefferson would agree.

Science Cheerleader

Putting aside the annoying comments system, sadly not atypical, this is an unfair (and selective) look at one effort of a "science cheerleader" with quite serious bona fides. She's a former cheerleader and uses cheerleaders in one campaign. How horrible! Not that post-Buffy cheerleaders are just eye candy any more. I also found the descriptions clear enough. Annoying PC-ism.

Justice Sotomayor

Sworn in (oath) ... in the public portion, Roberts read off a paper. No apparent problems. First Hispanic?

More Quickies

Now, I have read/enjoyed both Helen Oxenbury illustrated Alice stories. Good stuff. Now I can truly enjoy all those allusions. Sen. Gillibrand, who I like more than some but who still is clearly green, again has no real primary opponent. This is probably not that ideal, even if Obama thinks so. I liked Uncle Buck myself.

Quickies

I sometimes find the regs off base, but this guy is starting to make being wrong and an asshole a point of pride. Still, the comments have some good stuff, including this recommend. Apropos to one of her subjects, this is wickedly clever. My favorite is "Lucy" (Lucifer).

McCain Misses Point Again

I recently discussed how McCain's comments against Sotomayor didn't make much sense. After she was confirmed, the Senate discussed the Cash For Clunkers program.

McCain was against it, promoting his one-track mind against spending, ignoring the reason sometimes makes the specific program reasonable. For instance, he sneered why the government shouldn’t offer “cash for golf clubs.” How this factors into the economy and environmental benefits is unclear. Again, the "maverick" looks a bit less ideal in action.

BTW, a Google News search pointed to Western European use of a similar program. I wonder if such precedents are getting wide reporting when the program is discussed in this country. For instance, I saw a Rachel Maddow segment that noted its success which did not raise the point.

Justice Sotomayor

68-31. [Kennedy not voting.] Franken presided. Good luck, Justice. Scott, btw, is right: the problem was why those 31 said they voted the way they did. Swearing in Saturday. [Also: More on diversity.]

Greene Bios

A few years ago, I noted: "Recommendation: Washington's General: Nathaniel Greene and the Triumph of the American Revolution by Terry Golway, an interesting and smooth bio of a flawed but quite appealing (and largely forgotten) man." OTOH, Caty: A Biography of Catharine Littlefield Greene was a trudge, if one concerning an interesting historical character who lived thru some interesting times.

Sotomayor Confirmation Approaches

And Also: I add my .02 to a discussion on the use of "bitch." It pays to recall that even if one sees something as obvious, others might not do so. Consider this failure to admit birthers are not totally (only 95%) nuts. Give a centimeter, be taken for a mile? But, then you give needless fuel to the other side, for what end? I see this "in too far" a lot online, btw.

Via C-SPAN, you can watch the speeches for/against Judge Sotomayor such as Sen. Whitehouse's excellent analysis, which ends on the importance of experience and empathy, using history as the ultimate judge. As he and some others (e.g., the two senators from New York) underline, the "basic principles" the Republicans' claim she violates strongly favor her confirmation. Sen. Schumer hits it out of the park -- they want an activist judge, but one (I'd add) who covers up her activism. One whose personal experiences affects their judgment, as is the case for all judges, but they oh so sanctimoniously deny the case. In effect, more b.s.

Republicans stick to a few canards, citing a handful of cases of thousands, ignoring her overall quite moderate record. The "mainstream" is a de facto requirement, a move toward equality over distinction that Tocqueville might recognize. The term leaves something to be desired, but she fits in it. Yes, she leans a bit left, but as Schumer noted, remains pretty close to the median all the same. Judge Alito was found to vote consistently conservative when the panel split. Not Sotomayor. But, since we only care about around five of her cases, this does not matter. Ditto her average reversal rate as an appellate judge.

Sotomayor is punished for being honest. For noting that experiences matter, that people are not fungible, even judges. That who a judge is determines exactly how they look at the facts in a case. And, yes, facts and empathy matter even in the Supreme Court, not just (as some stupidly say) in trials and sentencing. Heather K. Gerken, a worthwhile guest at Balkinization who specializes in election issues, notes this is a problem with the dubious rush job to consider a major change in campaign finance. The First Amendment is very concerned with context, which amounts to various facts and how we understand them.*

The Senate Democrats (and the few Republicans, a few less than some thought, that support the nomination) are focusing on neutral matters of experience, moderation, and so forth here. This is not too surprising, especially since this is why she was nominated -- a safe choice with a good story, but one who has just enough for liberals to accept her as a good choice. Some, like Dahlia Lithwick, might want some more promotion of Democratic values. But, not only is her confirmation helpful overall in that department (adds to trust in Obama etc.), but many senators have did just that. And, attacked the other side, which in effect does so by proxy too.

Watching various reasonable sounding sorts like the senior senator from Minnesota or the likes of Russ Feingold or Arlen Specter and even Lindsey Graham support Obama's choice means something. And, some of these people did so with special force, promoting liberal values in the process. Sen. Whitehouse shined obviously, but he was not really alone. Meanwhile, Republicans looked like one note boobs who might just be a tad bit racist to boot. Not a bad confirmation process message given that this was like the Roberts for Rehnquist switch, only a few more Dems supported Roberts, and those who did not (now I might be partial here, but still) look as stupid doing so.

Okay, let's see her in action.

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* Prof. Gerken also references an earlier discussion in which she said in part:

Political elites (parties, campaign organizations, political professionals, and candidates - all of the actors that progressives tend to disdain) are all but essential for generating the type of participatory energy and engagement that Waldman seeks.

When issues rise to the top of the agenda or voters get engaged, it's almost always because of political leaders.

This has to be taken into consideration when addressing regulation in this area. The whole matter is quite complicated, and just talking about campaign finance limits alone is of limited value.

Sen. McCain v. Sotomayor (and Reality)

And Also: Bob Herbert discusses (if a bit late) past racial profiling at Harvard. And, a bit too much contrariness. Just to take three: the "sexual activity" admitted to is hugging, Walter as a holdout juror is ignored (guess he is not simply racist) and the "bad case" apparently involves a phony sounding scripted victim, a defendant known to have good standing in the community (noting this is somehow wrong?), and so forth. Oh, why is not bringing in Boo (remember, Atticus wanted to) a problem? Creative, so "C" for you.

I know of no more profoundly anti-democratic attitude than that expressed by those who want judges to discover and enforce the ever-changing boundaries of a so-called ‘living Constitution.’ It demonstrates a lack of respect for the popular will that is at fundamental odds with our republican system of government. And regardless of one’s success in academics and government service, an individual who does not appreciate the common sense limitations on judicial power in our democratic system of government ultimately lacks a key qualification for a lifetime appointment to the bench.

-- Sen. McCain

"Originalism" is not "democratic" either. If anything, it is less democratic (but then we live ... as he says in the very next sentence ... a republican system, not a simple democracy) in that we are tied to the understandings of an oligarchy (until fairly recently, a minority of the public had the right to vote, in fact and/or law) from the past. Support it or not, "living Constitution" provides indirectly elected (we elect the people who nominate/confirm) judges a chance to support a more democratic understanding of terms such as "equal protection" and "due process."

So what "disrespect for the popular will" is he talking about? The people elect officials who nominate and confirm judges who support a living Constitution approach. In practice, fwiw, the people support this approach. They support a 2009 understanding of interstate commerce, not a 1789 view of what that provision of the Constitution means. They support a 2009 view of equal protection, not one where segregation or social discrimination (such as in marriage) is upheld. This is sort of why Bork lost -- the people's Senate was not controlled by originalist loving Republicans, but Democrats and Republicans like Specter who opposed it.

I assume Sen. McCain realizes a "republican form of government" includes various measures, such as judicial review, that provides a check on the "popular will." I also don't know what "common sense limitations" he is talking about. At one point, he suggests:

In a 1996 article in the Suffolk University Law Review, she stated that ‘a given judge (or judges) may develop a novel approach to a specific set of facts or legal framework that pushes the law in a new direction.’ Mr. President, it is exactly this view that I disagree with.

But, he supports Ricci v. Stefano (no not Sotomayor's panel's respect for popular will) though I'm unsure -- the one on the ticket last year that was allegedly qualified -- if he knows what it said:

In her most recent and well-known reversal by the Supreme Court, the Court unanimously rejected Judge Sotomayor’s reasoning and held that white firefighters who had passed a race neutral exam were eligible for promotion. Ricci v. DeStefano raised the bar considerably on overt discrimination against one racial group simply to undo the unintentionally racially skewed results of otherwise fair and objective employment procedures. Again, this case proves that Judge Sotomayor does not faithfully apply the law we legislators enact.

As an aside, a nod to the somewhat snarky "most recent and well known reversal," her reversal rate has been a bit less than average for appellate circuits. Anyway, Justice Ginsburg saying that if you are going to reverse the panel via a new rule, it would make sense to remand is not really the same thing as the dissent "rejecting" the panel's (a majority of the circuit; but she joined it, so I guess it is "hers" too) reasoning. So, the "unanimously rejected" is dubious, if standard cant.

The new rule, a "novel" approach that "pushed the law in a new direction," was the path chosen by the majority. It 'raised the bar considerably.' But ... I'm confused ... isn't that a bad thing? And, it is quite debatable -- as with other decisions -- that the result "faithfully applied the law" as well. But, when they do this for certain conservative ends, McCain apparently doesn't mind.

If nothing else, this confirmation battle underlines the predominate official mentality (with certain notable exceptions) of the Republican Party. Again, let's remember what Sen. Whitehouse (he was not alone in this) said about who McCain did support:

For all the talk of “modesty” and “restraint,” the right wing Justices of the Court have a striking record of ignoring precedent, overturning congressional statutes, limiting constitutional protections, and discovering new constitutional rights: the infamous Ledbetter decision, for instance; the Louisville and Seattle integration cases, for example; the first limitation on Roe v. Wade that outright disregards the woman’s health and safety; and the DC Heller decision, discovering a constitutional right to own guns that the Court had not previously noticed in 220 years. Over and over, news reporting discusses “fundamental changes in the law” wrought by the Roberts Court’s right wing flank. The Roberts Court has not lived up to the promises of modesty or humility made when President Bush nominated Justices Roberts and Alito.

Overruling local laws, novel approaches to the law, disrespect of the popular will, questionable interpretation of federal legislation, and so on. I'm shocked! McCain was bamboozled! Maybe his advisers there were the same ones who suggested Palin was a credible v.p. choice. Or maybe McCain does not really deserve our respect as a serious person, some maverick that follows steady principles, not whatever fits the conservative line at the moment.

Meanwhile, at the new Souter homestead:

A silver pineapple hangs on the front door, and chipmunks frolicked in the driveway on Monday afternoon.

Anyway, when people like Dahlia Lithwick over at Slate wonder what value the confirmation brought since it was all theater (and apparently, the Dems just honored the "Roberts standard"), maybe they can highlight this. Note the contrast between the Republicans and the reality based Democrats, even if the latter are flawed all the same. But, as with the Gates coverage, you have to do some reading between the lines and find some pearls among the swine. And, hope the standard framing doesn't pervert things too much.

Print Jobs

I find it easier at times to read hard copies. Thus, online printing options, for low prices at Staples (seems cheaper than Kinkos) and elsewhere, are quite helpful. For instance, I had Staples print an online New Republic article that was thirty seven printed pages for $2. In another case, an online book of 170 or so pages cost me about $14, this time for double sided bound with a clear plastic cover and black back. In person printing is charming too.

"Sometimes Abortion Is The Better Choice"

And Also: Rep. Weiner might not have the stature to be a credible opponent of Mayor Bloomberg, but his comments on health care suggest his voice is a powerful one for those who want good government.

It's outright obscene for a government that does as badly as ours in caring for children to even consider encouraging women to continue pregnancies. Benign neglect would be a less evil alternative. And, while encouraging women to have abortions is beyond the pale, we need to acknowledge that choosing abortion could be the most moral decision a woman can make....

Every pregnancy has possibilities but there are also realities. More often than not, potential parents who are seriously ill-equipped for parenthood can't or don't do a good job. They may decide to become parents anyway, and that is their decision to make, not ours. But it is not our place to encourage them, either. They need the cold hard facts about all options including how tough raising kids is and how little help they will get if they do choose to become parents. If we care about women and children, our policy proposals will be focused on what's best for them and not on what makes us look good or achieves a cease-fire in the abortion wars.

-- Frances Kissling, "Sometimes Abortion Is The Better Choice"

A majority supports legalized abortion, but many are wary to admit that abortion is the "better" choice in some situations. This is in part a result of the one-sided promotion of childbirth, even for those in a myriad of situations where they might not be able to handle it, in our country and culture. Some, like Justice Stevens, only support this just so far:

If a woman has a constitutional right to place a higher value on avoiding either serious harm to her own health or perhaps an abnormal childbirth [*] than on protecting potential life, the exercise of that right cannot provide the basis for the denial of a benefit to which she would otherwise be entitled.

Thus, state sponsored medical care can selectively fund "normal childbirth" (though even there, a woman's health is negatively affected in many ways, ways that would not exist if she had an early abortion), but not avoid paying for an abortion when having one is necessary for her health and well being. This was the dissenting view in that case though some states have a more liberal construction. IOW, even by this compromise view, the state can selectively encourage childbirth in any number of cases, even though for the girl or woman having a child would be problematic. Protecting the destruction of embryos trumps that. Justice Brennan had a stricter rule:

The proposition for which these cases stand thus is not that the State is under an affirmative obligation to ensure access to abortions for all who may desire them; it is that the State must refrain from wielding its enormous power and influence in a manner that might burden the pregnant woman's freedom to choose whether to have an abortion.

The moral choice including the forces in the real world that lead one to (reasonably) feel compelled to have one is recognized by many. For instance, the Presbyterian Church noting that it believes the choice should be left to the girl/woman even in cases where the Church might feel it immoral has said:

The considered decision of a woman to terminate a pregnancy can be a morally acceptable, though certainly not the only or required, decision. Possible justifying circumstances would include medical indications of severe physical or mental deformity, conception as a result of rape or incest, or conditions under which the physical or mental health of either woman or child would be gravely threatened. ...

The Christian community must be concerned about and address the circumstances that bring a woman to consider abortion as the best available option. Poverty, unjust societal realities, sexism, racism, and inadequate supportive relationships may render a woman virtually powerless to choose freely.

We can declare an act should not be illegal for simply pragmatic grounds, illegality will only make things worse. OTOH, we can also make something legal because it is protects something inherently good. This includes making the moral choice, right or wrong, on the basis of one's own conscience. Also, the belief that in some cases that it is better to have an abortion, all things being equal. The government should be neutral in such cases, though it would not be "beyond the pale" for anyone to encourage abortion in all cases, particularly when they are counseled about all the choices and facts.

After all, many think it is the best path in certain cases.

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* Justice Stevens does not address what exactly "abnormal childbirth" covers, and since "health" includes mental health, there is an unclear overlap. For instance, where does rape fit it? Or, as is generally the case for late term abortions not related to some medical condition, some severe deformity?