Stuart Taylor

... angry asshole. Yet again. [And more! BTW, is it really an open question if waterboarding is "prolonged mental pain or suffering" in any sane world? People suffer that after one traumatic accident.]

Gun Stories: Life-Changing Experiences with Guns

The author has one set of (white) teens supporting target shooting and sometimes hunting and another (minority) with negative gun experiences. This racial divide aside, the book was insightful.

Pragmatic Scalia?

Because Shatzer experienced a break in Miranda custody lasting more than two weeks between the first and second attempts at interrogation, Edwards does not mandate suppression of his 2006 statements.

- MARYLAND v . SHATZER (opinion by Justice Scalia)

Miranda is the well known Supreme Court ruling that required suspects be advised of their constitutional rights, including the right to remain silent and to a lawyer, before being questioned. This eminently reasonable judgment that a confession made without a knowledgeable understanding of one's rights is tainted was controversial at the time, but became well settled law.

Exceptions and confusions on just how to truly honor it continue to bedevil the courts as shown by a recent ruling on the proper wording of the warnings. Shatzer deals with an accepted principle arising from Miranda -- once someone declares they want an attorney, the interrogation must cease until they are able to see one. This provides a chance for them to get counsel on the proper path to take. The police cannot repeatedly "ask" them again and again beforehand, trying to wear down the person (often in jail) to waive his/her constitutional rights.

These rules are not expressly found in the Constitution, but are set up by the courts to insure that the basic rules, e.g., the right to remain silent and to have an attorney, are truly honored in practice. Such "judge made law," therefore is in effect a pragmatic means to insure that the government has clear rules to follow, even if in the process somewhat arbitrary rules are in effect as applied to various situations.

Shatzer expanded on this. It determined a "14 day rule" -- even in respect to someone in custody, if a person is questioned again after two weeks, a previous request for an attorney does not block re-questioning. Scalia explains the need to what some (including Thomas/Stevens* from in effect opposite directions) deemed an artificial time limit:

It is impractical to leave the answer to that question for clarification in future case-by-case adjudication; law enforcement officers need to know, with certainty and beforehand, when renewed interrogation is lawful.

Thus, following his desire for "bright line rules" but still sounding more like Breyer than himself, he justifies the new rule on what sounds like pragmatic grounds:

The 14-day limitation meets Shatzer’s concern that a break-in-custody rule lends itself to police abuse. He envisions that once a suspect invokes his Miranda right to counsel, the police will release the suspect briefly (to end the Edwards presumption) and then promptly bring him back into custody for reinterrogation. But once the suspect has been out of custody long enough (14 days) to eliminate its coercive effect, there will be nothing to gain by such gamesmanship—nothing, that is, except the entirely appropriate gain of being able to interrogate a suspect who has made a valid waiver of his Miranda rights.

That is, you have a basic principle, and 14 days is a reasonable means to practice it in the real world. Seven justices accepted this judgment in full. Putting aside the strength of Stevens' concurrence (the two 1/2 year span involved in the case is long enough even if 14 days might not be), it is a useful reminder of how Scalia works in practice. Sometimes, it is okay to follow precedent and create judge made rules to honor basic constitutional principles, originalist principles not really appearing to factor into the analysis much at all.

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* As is his wont, Scalia takes time to answer Stevens' solo concurrence, adding to the long term Scalia/Stevens back and forth. For some reason, Thomas' concurrence is not as worthy of comment.

Coffee Party

Furious at the tempest over the Tea Party -- the scattershot citizen uprising against big government and wild spending -- Annabel Park did what any American does when she feels her voice has been drowned out: She squeezed her anger into a Facebook status update.

let's start a coffee party . . . smoothie party. red bull party. anything but tea. geez. ooh how about cappuccino party? that would really piss 'em off bec it sounds elitist . . . let's get together and drink cappuccino and have real political dialogue with substance and compassion.

I can respect the skepticism of some (thread), but this article on the Coffee Party movement was intriguing. See as well the website, including the vids (the one by the founder and the third by an older army vet in particular). Hmm ... maybe, I should have wrote this when having my morning coffee!

The point of public education

[I wrote this in response to the Parents Involved case. An interesting criticism of original meaning constitutionalism from the same time (with a comment from me) can be found here.]

Public education has various purposes that separate it from education alone. Some here think parents should have free choice to send their children to the school of their choice, which they very well do have.

For instance, Pierce v. Society of Sisters held that you can send a child to parochial school. States also allow you to home school. The Supremes even held there was a constitutional right to remove an Amish child from high school (at least the last two years) if it clashed with religious principles. There also is no 'constitutional right' to send your child to the public school of your choice. Nor is there a constitutional right to dictate what the public schools teach. Sorry creation scientists and radical leftists.

This last point is important. The public school was established as a means to promote good citizenship. This means something special in this country. For instance, public schools have an open admissions policy. They cannot teach sectarian religious principles or lead students in prayer. They (should) promote American values like free inquiry and principles found in documents like the Declaration of Independence and Constitution.

And, they overall bring us all together. Once upon a time, many urban schools used the Protestant Bible, causing great Protestant/Roman Catholic divisions. Rulings such as Engel v. Vitale underlined the problems with this technique. Again, parents can send their children to religious/private schools. But, public schools provide a means of having children of all creeds coming together. For instance:

authorities have perceived public schools as an "assimilative force" by which diverse and conflicting elements in our society are brought together on a broad but common ground.

If there are limited slots, promoting such diversity in some fashion as but one factor in the selection process can be a good idea. Ditto things like neighborhood, ideology, educational level [see, e.g., a recent story thread in the comic strip "For Better or For Worse" concerning 'special needs' students] and so forth. Diversity promotes the ends of public education. If you don't like it, or don't like your kid being taught evolution or whatnot, you need not send them to public school.

The same applies to racial diversity. It is legitimate for schools to optionally promote this end, bringing together all races along with other groups.* It is not the only concern though you'd think that from some rhetoric on the other side. But, it surely can be one concern. Bringing together different groups is a core value of public education.

How can we properly understand and learn to live with fellow citizens if they are but strangers to us from early years? As with all 'different' groups, including sexual and political in nature, separation promotes prejudice, misunderstanding, and other wrongs that a diverse education can help prevent. Promoting diversity requires some recognition that we are different in some ways, or is trying to get all points of view in class illegitimate because it causes division between people inherently all alike?

The program here does in part address the problems of racial inequality. But, looking at the actual beliefs of those behind Brown, such as Thurgood Marshall, we also saw a broader version. A unifying vision of education, one in which separate but equal is not compelled just because the state did not directly cause it. In fact, it was a violation of the very principles he fought against.

Some question the means argued by the dissent here, which to me is problematic,** but worse are those who seem to miss the importance of the end. They think race conscious programs are sometimes necessary when the state mandates segregation, but not when its action allow it to go on indirectly. But, if the end result is the same, is this not akin to saying the rich and poor both cannot sleep under bridges? Equality, like the varied purposes expressed in the Preamble of the Constitution, sometimes requires, to use a phrase, affirmative action.

Surely, the state can try on their own to take a different path. At the very least, the goal is correct. Sadly, some fail even to seem to think that is true.

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* Likewise, like it or not, in some fashion segregation in fact tends to be in some fashion a result of state action ... which can very well be the active choice to not act:

"But if, after such detailed and complete public supervision, substantial school segregation still persists, the presumption is strong that the school board, by its acts or omissions, is in some part responsible."

The fact we can lie to ourselves and ignore the connection, notwithstanding.

** Economic solutions are of limited value when the problem is racial in particular. Even conservative leaning people have asked 'if not this, what?,' viewing things from a perch of watching history pass by and knowing a thing or two about education overall.

Merit Remains Valuable

The mess in the N.Y. governor's mansion continues and underlines the importance of selecting people, including seconds in command, by merit, not just politics or because they seem like good people.

More BS

This article's abuse of the word "reasonable" and "obstructionist" (not meeting 1/4 way ... not really meeting the test) underlines my recent post on how basic principles are not understood. The reality community has yet to make a full comeback.

TV Quickies

Life Unexpected and Being Erica (now both with Karpluk) both had uncomfortable relationship moment plot lines. Cringe-worthy is not really enjoyable. Erica needs another good "go back" moment already!

Olympics

Never an Olympics fan but this sort of thing is amazing all the same.

"Realism" In Judging

It is a bit too inside baseball for me to fully enjoy, but Beyond the Formalist-Realist Divide: The Role of Politics in Judging by Prof. Tamanaha* is recommended. He discusses the book here. A taste:

I call this “balanced realism” because it acknowledges the limitations inherent to law and human judges—which cannot be eliminated—yet it also recognizes that law nonetheless works, that judges can and do render rule bound decisions. For at least two centuries, the book shows, judges and jurists have described law and judging in balanced realist terms. The formalist-realist divide that dominates contemporary views of judging tends to obscure this common ground.

The need for judgment, one that will open up some disagreement, is relevant here because he still believes that the "rule of law" is both possible and fundamental. This requires some minimum standards, and he cites research to show that judges as a whole do agree in most cases.

frequently there are legally “correct answers” and “incorrect answers,” as determined by prevailing legal conventions and practices

Thus, though some don't agree it has been violated, there is some minimum standard here that someone in Yoo/Bybee's place could have violated. I fear from reading some of the discussions that some disagree. That in effect they had a job to spin the law to meet the needs of the administration and to challenge them on that is the outrageous thing. As the author notes, the assumption that the law is merely political and partisan is likely to promote just that.

The book has received lots of kudos from the legal community, including from the likes of Prof. Kerr over at Volokh Conspiracy, the opposite number blog of the author. This helps me respect it, since clearly I'm not able to fully judge the research behind it with my more limited knowledge of the subject. I do think someone shouldn't take away from the book that those terms are meaningless. But, as with "originalism," there can be a lot of exaggeration.

This article of a "formalist" that admits to some discretion in close and novel cases, cited in the book, is also a good read.

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* He at times blogs at Balkinization, providing sound commentary with a polite style, a good balance to some of the excitable [Sandy Levinson honestly feels our political system is in deep **** at the moment, but really needs to calm down sometimes. Still, everyone needs a place to vent.] or somewhat elitist sounding others there. This includes those who don't allow comments.

Justice Kagan?

I think this makes a lot of sense, including the use of someone not on the appellate bench and without a lot of baggage. Maybe, Kagan, then Wood. BTW, Obama "preparing" for something (another justice retiring) doesn't mean the same thing as that happening.

Understanding the Basics

Justice Souter has been promoting the importance of civics, truly concerned that there is a basic lack of understanding about simple concepts involving our means of government. This is a reasonable fear -- repeatedly, a debate over some legal or political matter brings to bear the fact that basic concepts (such as judicial review or whatever) are misunderstood. The below is in response to one of the Slate articles regarding the OPR report previously cited.

After more than a year's delay, the Department of Justice released the Office of Professional Responsibility's report on whether government lawyers who wrote two notorious torture memos violated professional ethics.

There appears to be some confusion on what is at stake here. Some are under the impression that people (mainly the "left" or "far left," apparently) want to put people in jail for writing legal opinions because we don't agree with them.

The immediate issue is a referral to a bar association for sanctions, which might include stripping of a law license. This happens from time to time, including when lawyers are found to have violated their professional ethical requirements, such as providing particularly shoddy work product. The test is not a dispute over the basic policy promoted by the lawyers in question or dislike of their clients. Some lawyers have a higher standard to meet:

The proper role for presidential lawyers is actually quite clear, although more nuanced than either zealous advocate or neutral arbiter. The Constitution explicitly commands the president to "take Care that the Laws be faithfully executed," and it is up to the attorney general and, under his direction, DoJ's Office of Legal Counsel to provide the analytical expertise the president needs to ensure the legality of his administration's actions. Presidential lawyers should operate first and foremost as stewards of the rule of law and our constitutional democracy. Their legal advice must reflect an accurate and principled view of the law, not just plausible, ends-driven rationalizations. And in order to do that with any effectiveness, they must be allowed to tell the president "no."

-- Dawn Johnsen, nominated as head of the Office of Legal Counsel

As Jack Cerf., a veteran of the office, explained, the OLC is not the same thing as the President's personal lawyer. OLC lawyers have a special obligation, which means the actions of Yoo et. al. rankles that much more. Nonetheless, some are under the impression that slanted spin jobs that provide a shoddy description of the law, advice that is particularly nefarious since it would be used to determine the proper scope of activities such as waterboarding, was Yoo's "job."

Though it is not the immediate issue at hand, some argue a step further. They argue that there is a reasonable claim to be made that professional ethics alone were not violated here. In fact, they argue that the lawyers here (including one who is now a federal appellate judge) should be fully investigated as possible criminals. This too has precedent:

For this issue, one Nuremberg case forms the key precedent: United States v. Altstoetter, also called the Reich Justice Ministry case. That case stands for some simple propositions. One of them is that lawyers who dispense bad advice about law of armed conflict, and whose advice predictably leads to the death or mistreatment of prisoners, are war criminals, chargeable with potentially capital offenses. Another is that cute lawyerly evasions and gimmicks, so commonly indulged in other areas of the law, will not be tolerated on fundamental questions of law of armed conflict relating to the protection of civilians and detainees. In other words, lawyers are not permitted to get it wrong.

Some suggest Altstoetter is not necessarily the best case to use, but I cite a specific principle here, and it works on that level. One that also highlights that "existential threats" do not justify violations of the law (or professional responsibility), if anything, we must be on guard more in such cases since they are when the rules don't seem so important any more. This is a harder case to make, though the report helps to make it by filling in some details of how things occurred, while others have also done yeoman work in this department. This includes evidence that Yoo and others are guilty of conspiracy.

But, even if a "beyond a reasonable doubt" standard might not be met, those who consider Yoo et. al. to be "criminals" have something like this in mind. And, like those who think O.J. is a murderer, they can colloquially so argue, even if they will avoid a court of law.

A final basic misunderstanding respects Yoo's tenure. See, e.g., here. Basically, it is argued by some that it is a threat of academic freedom to strip him of tenure, or even, to have a full investigation over the matter. Cynics would say the likely result would be something like the report in question, but even that was productive in various ways. Anyway, the investigation would not be based on simply doing legal work for the Bush Administration. It would have to determine that while doing so, his shoddy work or even possible criminal behavior makes him an unfit teacher.

The matter at hand is not just Yoo or Bybee. It is understanding basic principles, principles sadly appear not to be understood or accepted.

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PS Some cite possible wrongdoing of the Obama Administration, including use of drone attacks, some that might target U.S. citizens. Not bringing Bush Administration officials to task only furthers such possibly nefarious activities. And, many critics of Bush continue to criticize Obama in such areas. The alleged claim of hypocrisy doesn't stick.

Confirm Dawn Johnsen

The proper role for presidential lawyers is actually quite clear, although more nuanced than either zealous advocate or neutral arbiter. The Constitution explicitly commands the president to "take Care that the Laws be faithfully executed," and it is up to the attorney general and, under his direction, DoJ's Office of Legal Counsel to provide the analytical expertise the president needs to ensure the legality of his administration's actions. Presidential lawyers should operate first and foremost as stewards of the rule of law and our constitutional democracy. Their legal advice must reflect an accurate and principled view of the law, not just plausible, ends-driven rationalizations. And in order to do that with any effectiveness, they must be allowed to tell the president "no."

-- Dawn Johnsen, nominated as head of the Office of Legal Counsel

Various moves have some real significance, both symbolic and otherwise. Confirmation of Dawn Johnsen (she already has one or more Republican votes on her side) would be one of them. Holding up her nomination is one of those moves that really rankles. People are led to believe that there really are no standards here. Yoo/Bybee were just doing their jobs, as if they were but speechwriters or writing a law review article.

Even strong critics of the report are left citing "limits of what we can expect from law and from rules of professional responsibility." The hell with that. Dawn Johnsen and others do expect more. Of course, CYA jobs like this report and not fully investigating torture or having a truth commission promotes such low standards.

Aim low ...

Nowhere in Africa

[Spoiler: I discuss a scene from the movie below.]

"[T]ells the story of a Jewish family that emigrates to Kenya during World War II to escape the Nazis and run a farm" with various family struggles arising. Based on true events, but use of internal dialogues and other devices -- even if the author did some research -- suggests it is only "based on the truth." The same appears to be the case with her first "African novel," also in some fashion based on fact.

Stefanie Zweig wrote the novel, but it is not just through her eyes. We thus see events through the eyes of many characters, including some pretty minor ones. This adds to the book though be it the translation or the original, it is a bit bulky and draggy at times. The expression of emotions and so forth comes off as heavy-handed. We meet the author in the DVD extras, another DVD with so much material that even those who don't watch the film have lots to see. It would be interesting to learn the differences between truth and fiction here.

The film, though I did not know it when I first saw it, was my first introduction to Juliane Köhler, who already started down the road of playing WWII era characters. The film changes various details but is generally loyal to the novel, though various things are compressed to allow it to fit in the different genre. One example of this is that the father's friend isn't the one who picks up the daughter at school (the scene of the cocky British solider going to the headmaster cut anyway) but the father himself. This mostly works though the final third of the movie appears a bit disjointed, too much material needing to be compressed in about an hour of film.

Also, and for some reason it does not appear (not when it occurs; I did not listen to the whole commentary) to be discussed, the film has the mother have an affair with a British soldier to get help when they are detained at the beginning of WWII (ironically, there are "enemy aliens" in British Kenya). In the book, a totally innocent explanation is provided (another emigrant couple), and it is striking given again the author is still alive and all. How did she feel about the implication her mother committed adultery, even if one understands why?

Overall, I would recommend both the novel and the film, particularly if you want to meet the actors and the author by checking out the DVD. One interesting tidbit of the sort you pick up on commentary is the fact that the father is played by someone from Georgia (country) so had a thick accent, resulting in the need of dubbing. However, we hear a bit of his actual voice when he speaks English. Those in the business might recognize this fact, but I surely couldn't tell, except perhaps if I really tried to see. After all, some films are poorly dubbed or remastered, so the voices don't totally match the filmed dialogue anyways.

Definitely a means to step into another world.

"David Margolis’s Whitewashing"

Guess he was the right man for the job. Of course, Holder could overrule him; bar organizations could still investigate. But, one CYA careerist says it's a bad idea, so hey, their hands are tied, really.

"Justice Department Will Not Punish Yoo and Bybee Because Most Lawyers Are Scum Anyway"

The decision represents the end of a five-year internal battle and flatly rejects recommendations by the department's ethics investigators.

What Balkin said. But, see here (comments). Again, Yoo is no Jesselyn Radack! Of course, this war crime enabling: Friday release.

Enemies of the People: My Family's Journey to America

Hungarian-American journalist Kati Marton was on Colbert recently promoting the story of her journalist parents struggles in the old country (1950s) and the effect on her childhood. Good brisk read.

TV Quickies

Life Unexpected had another tedious people behaving badly episode. But, after a couple lulls, Being Erica was very good as Erica had a "this day doesn't count" day. Her life "now" is the best part of the show of late. And, Jennifer Tilly (Craig) is still a great (and sexy) guest.

Bronx Justice

Among the round-up of local news in today's NY Daily News is a small story entitled "HS football star's killer gets 25 yrs." A popular Bronx high school football star was killed in 2005 at sixteen, the killer received a rather long sentence of twenty-five years for manslaughter and another ten for a weapons charge. Curious about the story, only the name of the killer was supplied without more back story, I checked online. A 2005 article suggests the killing received some extended attention at the time:

They remembered Fernando Corea Jr. yesterday in the working-class neighborhood in the Bronx where he had often lived amid danger and had dared to be different. He loved school and dreamed of a pro football career, they said, and stood up to the resentful thugs who lured him into fights. ...

On Saturday, 12 hours after the shooting, the police charged a youth they identified as Quindel Francis, 16, of Dewey Avenue in Throgs Neck, with the shooting. They said it was the apparent result of a longstanding feud between the two youths, dating to 2003 when they were classmates at Intermediate School 192. No gun was found, but investigators said Quindel made statements implicating himself.

Various articles filled in some more details. For instance:

Mr. Francis has spent the past five years in jail, and he has become something of a regular at Criminal Court in the Bronx. He has already sat through two mistrials and is now in the latter stages of his third trial on charges of second-degree murder and manslaughter in the killing of his classmate, Fernando Corea Jr., a high school football star, on Feb. 11, 2005.

A hung jury and the passage of time clouding memories and so forth suggests an explanation both for the crime and punishment -- manslaughter is easier to prove, but the heinous nature of the crime explains the long sentence for what murder might not provide in other circumstances. It is to be recalled, the cruelty of the crime notwithstanding, that a sixteen year old is being given thirty-five years for basically one criminal act.* This after five years in prison while being legally innocent. And, even now, at the sentencing the two families blame each other. Such absurdity:

It’s your fault!” Mr. Francis’s mother and other supporters shouted at Mr. Corea as she left the courtroom moments later. “It’s because of you!”

The angry scene capped an emotional afternoon in the Bronx courthouse that left the mothers of Mr. Francis and Mr. Corea weeping on opposite sides of the gallery. Each had family member comforting her, but the sobs threatened to drown out the judge’s words.

As is teenagers walking around with guns a few miles from where I'm typing this, the next victim (maybe not one praised by a coach of the Jets before being killed) waiting in the wings.


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* The U.S. Supreme Court is deciding now if life without parole is unconstitutional for minors, but thirty-five years for manslaughter and a weapons charge (if arising from an incident following past harassment of the victim) is pretty up there as well for crimes performed at sixteen.

Netflix Not Perfect

One flaw is suggested by the "long wait" for a new release like Whip It! Likewise, though many films can be directly downloaded, you still have to wait a day or more for others. Finally, the plans allow 1-8 DVDs at a time, but 3/16.99 monthly etc. is not worth it.

"Commerce" by Jack Balkin

First, this analysis by an expert on criminal law issues is right to challenge a NYT op-ed for giving somewhat too much responsibility to the U.S. Supreme Court for "three strikes" types laws. The op-ed praised Justice Kennedy for being critical of the size of our prison population, but noted he was one of five justices to uphold such a law in California. The response notes the courts do have a role, but most of the blame lies on legislatures. It also notes moves to deal with prison crowding by the lower courts, moves the Supreme Court left in place.

[After finishing this post, I saw this interesting analysis of how the chief judge of the NY Court of Appeals changed things over there.]

The role of the federal courts also is touched by a new article by Jack Balkin on his analysis of the original understanding of the Commerce Clause. (This fits in -- touched upon here as well -- his various attempts to show how health care mandates are constitutional in part under said clause.) As he did before, such discussions provide a sort of liberal constitutional gloss on original understanding, attempting to attract a wider audience to both (with somewhat limited results, I'd gather). A taste:

To have commerce with someone meant to converse with them, meet with them, or interact with them. Thus, commerce naturally included all trade and economic activity because economic activity was social activity. But the idea of commerce-as-intercourse was broader than economics narrowly conceived—it also included networks of transportation and communication through which people traveled to interact with each other and corresponded with each other.

The best evidence of this is the "Indian Commerce Clause," the subset of the clause that is in large part the only explicit grant of authority over Native Americans apart from treaties. This clause was used for a broad range of national legislation that goes beyond simple economic measures. It is an interesting read that does have a core problem in my eyes -- not much of a real limiting principle. Balkin claims to have one: "where Congress cannot reasonably claim to be solving a federal problem." For instance, he cites this from the Constitutional Convention to help provide an interpretative gloss:

Gunning Bedford of Delaware then moved to further clarify the basic principles in Resolution VI: “That the national Legislature ought to possess the legislative rights vested in Congress by the confederation;” “and moreover to legislate in all cases for the general interests of the Union, and also in those to which the States are separately incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation.” The Bedford amendment passed 6 to 4, and the amended Resolution VI was adopted by a vote of 8 to 2.

The principle would then apply to "commerce" as spelled out in the clause. The clause expanded in scope as times changed since there is just so much more that reasonably can be understood to be a "federal problem," particularly of a "commercial" nature than there once were. My problem is that if you are going to provide a reasonable (if open to debate) broad understanding, one that goes beyond current Supreme Court doctrine (thus, the result of Lopez -- the gun-free school zone case was deemed reasonable, but not the breadth of its reasoning), you need to show how it is not totally open-ended.

Lopez itself was 5-4 (so open to debate) and left open other means to in effect do the same thing. Perhaps, I missed something, but this is the only real discussion the article provides on the "limits" of its analysis. It rejects the ruling's suggestion that traditionally state functions like education should be more carefully interpreted by the courts, since federal power over them remains when a federal problem covered by the Constitution exists. Likewise, the medicinal marijuana case is cited to show the breadth of the power, but not to address a concern of some when it sweeps in some rather intimate conduct. Federal abortion legislation ("partial birth" abortion ban) also might be covered here.

The net result is one reasonably can determine Prof. Balkin in effect trusts the political process as the only real limit here. This is not too surprising since it is really the basic honest reading of the Lopez dissenters' viewpoint. It also seems problematic. Balkin announced the new article on his blog, but (unlike some there) doesn't allow comments because of past sniping on his comment threads. As noted here, this leads a few at least to not want to read such posts. I at times read his stuff given the respect I have for his analysis, but skip over him other times because it is a bad policy -- one value of blogs is feedback.

Same basic concern here: he does not seem to fully respect the concern of some who would consider his analysis too open-ended, particularly given the spirit of the 10th Amendment and the scope of the power in the current age. If his analysis really has no limits for the courts to provide in most cases, his analysis of Lopez (he disputes Morrison, rightly, given its shallow rejection of an equal protection defense of the law) is not too reassuring on the front, he should bluntly say so. Nonetheless, the article is interesting and underlines how "original understanding" is not simply some conservative approach.

This should be remembered soon enough when the state gun rights case will be up for oral argument in early March.

Worth Seeing Again

Divine Souls is an independent film about a nurse (the actress played a homophobe in another good movie) at an AIDS hospice, particularly her trouble dealing with a dying ten-year-old boy she has fell in love with there. Well acted, touching fare. Free online.

Dixie Chicks Are Back ... Sorta

After a hiatus, they are back. Natalie Maines -- whose outspokenness got them in trouble -- will not be involved in the newest effort (under a new name). The two sisters started out without her, but still, doesn't seem the same. Good luck to all three of y'all!

Not Bad At All, Actually

Many think this film sucks. Actually, it was overall pretty enjoyable, including some good performances. Yes, it's on some level cliched fluff, but hell some of us sort of like that sort of thing sometimes.

LGM Jumps Shark

This post (not the first time he has shown himself to be a questionable addition) is a "jump the shark" moment along with other tedious stuff (most SEK posts, for one), so I removed it from my blogroll. Some good stuff, but not enough any more overall.

Will Ms Keaton Have A Cameo?

Saw Day of the Woman awhile back and was struck by it, exploitation or not. Not alone. Remake in the works.

Asshole, yes; Rightly Expelled? Maybe Not

And Also: We were told that the lead of The Nanny was going to host a Valentine Day week marathon of the show on Nickelodeon. Pretty lamely -- they have her give non-germane quips in what appears to be a dressing room.

Mr. Monserrate says he will challenge the expulsion in the courts. Over the weeks since his conviction, he has repeatedly portrayed himself as the victim. This is nonsense, as the security tape shows. The victim of this domestic violence is clearly Ms. Giraldo, and while Mr. Monserrate got seven other senators to vote for him, all were men. The 10 female senators, unsurprisingly, voted otherwise.

-- NYT Editors

The NY Daily News editors are of the same mentality, more or less, but didn't like the backdoor method used to go about it. They also threw in some more personal invective -- they tend to be asses like that -- at some of his few supporters. Two liberal leaning op-ed writers, including Juan Gonzalez (of Democracy Now!), suggested however that it wasn't just typical NY state legislature clown college material, but perhaps simply illegal.

Gonzalez especially made it some kind of civil liberties issue. He laid it on a bit thick, citing two previous Supreme Court cases that involved no expulsion of legislatures, but refusal to seat them. One was based on his views, so was a free speech case, and other concerned the narrow qualifications required for the members of the U.S. Congress. The one fully relevant citation was to an earlier NY exclusion controversy, the facts of which were not dealt with with enough detail to provide much clarification.

Here's the thing. State Senator Monserrate is an asshole. In between his election and swear-in, he got into some physical confrontation with a girlfriend, who refused to be a witness against him. Given her apparent change of heart, and hostile witness performance, the bench trial did not lead to a felony conviction. This would have meant an obligatory expulsion under state law. A misdemeanor conviction is a hazy matter, made worse given the rarity of expulsions. Being an asshole, however, is not grounds enough for an expulsion. The ACLU, protector of assholes and others, is on the case.

Sen. Monserrate (if the title still is proper) is not beloved by many of us for various reasons. His temporary move to vote with the Republicans to swing the Senate that way until he and another boob changed their minds didn't bring many friends. Nor, did his apparent flip-flop on the issue of same sex marriage. The handful of Senate supporters (over 50 over 62 senators voted to expel him), the NY Daily News might have lacked taste but were not that far off, also leave a lot to be desired in some respects. Others have noted other bad things about him.

But, I don't know about this expulsion based on the alleged fact that "the actions of Senator Monserrate, as measured in their totality, are not compatible with his oath of office," given the focus is on acts before he took that oath. As I wrote this, I sent my senator (who holds a leadership role) a request for information regarding the report written on the body's power to expel him. He sent me the report, noting it would be eventually put on the official site soon. It provides some further insight on the decision.

The report cited by Gonzalez is noted and briefly notes some disagreement, including the citation to the Powell case linked above. So, his most relevant citation is of somewhat limited value. The report notes the senator and his counsel was given a chance to be involved, but they refused. It notes that he has not shown remorse or did so in legalistic ways that don't amount to much. It notes the broad power to expel, including independent power to investigate (e.g., in effect find him guilty of a felony). Domestic violence also is a special matter of concern for the state though I reckon so are other things, and the bottom line is what he was convicted of or what they found the evidence showed.

And, it (weakly) notes at one part that "arguably" the Senate has power even if he was only Senator-Elect at the time of the wrongdoing. At least, more strongly this time, it shows that the will of the voters aren't be overridden since they had no choice to judge the matter. Overall, they determine the totality of the circumstances, not just the misdemeanor conviction, is what matters. The basic conclusion to me is that they think he got off too easily given the facts and his lack of remorse and involvement in the investigation plus the sordid nature of the crime justifies his expulsion.

Plus, they have broad power, the bottom line a judgment call. Well, maybe. But, all the precedents provided appear to cover those who committed acts within their terms. So, he just might win on appeal. A special election has been set almost immediately. Thus, even if he did, it wouldn't mean too much. And, yeah, he's still an ass.

Being Erica

The star began her Life Unexpected run on Monday. Last few episodes' 'travels' a bit lame though the plot developments were fairly interesting, including her sis/mom. More here.

Thomas Talks

NYC has some snow today, but it isn't exactly blizzard like conditions, so some of the closings (including libraries, supermarkets and so forth) are a bit much. Still, got up early, walked to the local bakery for breakfast, and various stores were open to do some shopping as well.

In his University of Florida speech, Justice Thomas acknowledged—and, indeed, went so far as to celebrate—the fact that different judges decide cases differently. Different approaches, he said, "strengthen and inform our legal system." Accordingly, Justice Thomas went on, no one should be surprised that there will be disagreements about how to decide cases. ...

Justice Thomas's view that judges and justices do not base their decisions on their ideological preferences is probably best understood as more of an aspiration than a description of how courts actually function. A somewhat different view—which embraces values diversity as well as methodological diversity (though not partisanship)—was espoused by then-Judge Sotomayor in a 2001 speech. She said: "I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate."

-- Michael Dorf, "Clarence Thomas, Sonia Sotomayor, and the Noble Lie"

Meanwhile, as the Supreme Court is in a bit of a hiatus, Justice Thomas is out doing his thing -- the guy has his problems, including not asking questions at oral arguments (we get it; best to listen; but no questions sends a negative message) and a too cavalier opinion of precedent / a selective originalism. And, he still has signs of his angry at the world vibe. But, some of the criticism is a tad heavy-handed, particularly because he does have a certain consistency going for him (see, e.g., his opinion supporting medicinal marijuana use in California).

He does like to go out and speak to students, such outings educational in various respects. The above taste discusses his recent Q&A, providing a link, which provides a laid back, at times playful (he likes action movies, his RV and going to BBQ spots with students, apparently) side of him, though Thomas' serious side (which I respect) comes out as well. Another analysis recent remarks includes this:

First, he acknowledged that justices have different starting assumptions--which includes having different views of the proper modes of constitutional and statutory interpretation (originalist, pragmatist, minimalist, etc.). Skeptics suggest that these jurisprudential views merely serve to cover political decision making, but a better explanation of the connection is that their political views incline them toward adopting jurisprudential theories congenial to their views. This does not amount to the same thing (politics at bottom!) because the jurisprudential theory has its own implications and requirements that can and do regularly point away from a justice's political preferences.

Second, Justice Thomas acknowledged that justices see the world differently--each from a different perspective--which subtly colors just about everything, from how they perceive the facts, to the interests at stake, to the purposes and consequences of the laws at issue, to the applicable theory of legal interpretation, etc. These different perspectives on the world will naturally, inevitably, generate different legal decisions (though in a significant proportion of cases they will nonetheless agree on the law).

Check out here for a report of some other remarks. Note the problem with his off the cuff reasoning -- an argument is made that media corporations are separate because of the Press Clause (I find this argument as convincing as Scalia does, basically, but still) and the fact that a racist supporter of a corporate reform measure doesn't on its own negate the validity of the law. But, his other remarks on the ruling do make sense.

Justice Thomas appreciates "methodological diversity" but as the second analysis in particular notes, this often reflects "ideological" and yes even "political" diversity as well. The simplistic notion one directly follows from another can be overblown, but a connection (not always one you are aware of) exists. And, as Dorf notes, it is not really a "noble lie" to avoid the issue during confirmations, pretending (or -- as Sotomayor at times did -- very carefully touching on it) just some neutral "deciding what the law is" occurs.

Thomas comes off fairly well here. Perhaps, he might try to talk other places too?

Derby Girl

Sorta autobiographical, Derby Girl (the source for Whip It, screenplay by author) was fun. Not rocket science, but not meant to be.

News Alert!

The reply in effect avoided Greenwald's point by raising possible narrow regulations the ruling might not stop, but true disagreement on Democracy Now! was appreciated. Oh, hint: constitutional amendments won't be passed; more realistic action, please.

Super Bowl Recap

The Colts were favored but it is (and not just with the benefit of hindsight) a bit curious that they were. The Saints, a late season swoon aside, was known as both an offensive and defensive (if somewhat inconsistently at times) powerhouse. The Colts had lots of close games and 4Q comebacks, their defense shining more than previous years, so was actually less of an offensive powerhouse. The latter might suggest that it seemed destined that the score would be 24 all around the Two Minute Warning.

But, Peyton Manning aside (and Drew Brees is not chopped liver), was the Colts really better? The other difference was that the Colts had more playoff experience, though the same might not be said about the Head Coach. This had some bite and might have justified the nod their way, but perhaps one might suggest that offensive/defense combo (both that took a bit of time to click), one that showed up here, would have balanced that out. And, the lead players here also are veterans. It was unclear if they would not be able to handle the big stage. I think the game could have gone either way.

The Saints benefited from some risks, particularly the exciting (and truly novel -- it never happened before in the Super Bowl) onside kick retrieval. It is to be noted that neither was a sure thing, even with the skill of the team. They after all were stopped at the goal line and had to stop the Colts on third and short. It took seemingly forever to determine who retrieved the onside kick. And, a touchdown afterward was in no way guaranteed. It is striking that after a 10 point start, 31 of 38 of the following points went to the Saints. A lesser team might not have advisably went the same route in certain cases.

As to the Colts, they seemed overwhelmed by the Saints passing attack and so forth. Drew Brees definitely was the MVP. The onside kick clearly surprised them and the quick strike there was key. Before the turnover, it was a relatively low scoring game, especially early, and keeping the Colts off the field worked once again. The long field goal attempt with their old kicker was ill advised. They were ahead then and it was a bad gamble that might have meant around third yards of field position unless there was a good punt return.

OTOH, the Saints kicker was great, kicking key long range field goals that kept them close throughout. The pick obviously about iced the game though the Colts at first quickly went down the field, helped by a Saints timeout. But, the Saints slammed the door, no onside kick attempt allowed, though it seemed destined to occur. Again, except for a key response to their onside kick points, the Saints slammed shut the Colts offense when it mattered. The turnover shut down a more exciting finish but overall it was a fun game, quick going with some high points. The sentimental favorites also won though not really a true "underdog."

The non-game stuff, not so good, though the national anthem was sung nicely enough.*

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* The chicken ad was a bit clever, especially, President Chicken, but somewhat in bad taste.

The Leno/Winfrey/Letterman ad was strange, particularly since it was apparently Letterman's idea. His recent anti-Leno material suggested some degree of vitriol. And, in the end, the ad might facially be for Letterman's show, but it also promotes his soon to be competitor, Leno. It had an overall uncomfortable vibe to it though suggests Letterman's twisted sense of humor.

Good Game Though

Now, the Colts were burned on an ill advised long field goal attempt.

Half-Time Show Sort of Lame

These guys singling about "teenage wasteland" especially didn't quite do it. I guess it goes with light beer commercials.

These Commercials Are Sort Of Lame

Good to see Abe Vigoda though.

Is Dahlia Lithwick an "American" And Other Things

It's useful that I take time in my spare time to focus on various things* other than political matters, since they can be a sort of drug after awhile. An unpleasant one of sorts given the limited nature of the current situation for those who want so much more out of it. Sometimes, a reality moment is necessary. Consider the fact that mortality numbers are dropping globally in significant part because of various efforts that might in some general sense be deemed "liberal."

So, there are some basic limits, and it seems to me that they suggest pretty clearly who to support in various cases. I realize I am not in the majority here in various cases, but it still amazes me on some level, while also aggravating me and so forth. For instance, why exactly was Sen. Scott Brown a credible candidate? I can see why he was nominated; quite a different matter actually electing the guy. This is who you think should fill Kennedy's shoes? Really? I know Kennedy grew into the role, but he was basically replacing his brother. From what I know about Brown, he comes off as some basic political hack. These sorts have a place, and make credible candidates in various cases, but in this one? I know ... it can be explained.

And, so forth in various cases. For instance, I can understand someone opposing using the courts to protect same sex marriage rights and so forth. They are in no way necessarily bigots. They also can differentiate Loving in that that took time to develop and racism was deemed by then simply wrong, at least as something that can be defended above the board. I can dispute various things here, but it has some sense of reasonableness. But, when then some go into "this isn't marriage," it was "understood" not to be covered (as if miscegenation was) and so forth. IOW, bullshit.

The same with various other comments online. The tired Obama critics that fail to see that Republicans on various grounds are worse get really tiresome. There can be reasonable difference of opinion here on various issues. Fine. But, those worried about government spending or alleged libertarians really can't think Republicans these days are better on that front? Selective use of the evidence (e.g., Democrats used the filibuster at times, so it's just "more of the same") at some point is also annoying. Basic facts, putting aside debatable principles, are ignored. It can get to be a cesspool.

Some people online are best not dealt with, though sometimes they say something stupid enough that you are compelled to respond in part because you like to hear yourself talk. For instance, someone says the federal courts should just stay out of "marriage" issues. Right. So, when some federal tax issue involving just that comes up (to take an obvious case -- military spouses), what? This sort of thing is stupid or lazy ... or both. That is, the failure to actually respond to being pointed out to be obviously wrong is often just lazy.

But, comments are on some level egotistical, so you have to deal with that too. Actually thinking can hurt that. I find this to be the case with various smart asses online. Their reasoning is shallow, but it doesn't affect their sarcasm or vitriol much. Actually, it's easier to do that when you write in simplistic terms. Consider this case, where Dahlia Lithwick -- who apparently is not an American citizen but has lived, studied, worked and raised a family here for twenty years -- is criticized for saying "we Americans" and allegedly trying to be a "spokesperson" for them. Seriously? And, one of the people supportive of the criticism is someone who I have found reasonable if not always sharing my point of view. Reasonable people can have blind spots.

A taste of one of my replies, after the person basically ignored me:

What then is the American, this new man?...He is an American, who, leaving behind him all his ancient prejudices and manners, receives new ones from the new mode of life he has embraced, the new government he obeys, and the new rank he holds. He has become an American by being received in the broad lap of our great Alma Mater. Here individuals of all races are melted into a new race of man, whose labors and posterity will one day cause great changes in the world. Americans are the western pilgrims.

-- Letters from an American Farmer

One test, btw, is that Dahlia is liable to be charged of treason against the U.S. She has shown by her extended residence and life here that she has a responsibility of "allegiance" to the U.S.; citizenship is not required. Likewise, the government has various obligations in return, putting aside her concern for the people she has lived among and in some cases loved for years.

Links can be found in the original. It isn't rocket science to note that some people just have a radically different way of looking at things. But, sometimes it is useful to keep it in mind.

[And, now there is another reply with the claim I did basically nothing to respond to the allegation made. That is, the person doesn't agree with me. Not quite the same thing.]

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* My last book review is a case in point -- it's good to move from the "300s" in the Dewey Decimal system, shall we say. Also, via a recent interview on Democracy Now! with Robert Redford, I sought out Butch Cassidy and the Sundance Kid. Yet to see the main picture, though have seen some clips from famous scenes.

Very good bonus features, including a full length documentary about the real outlaws and "making of" feature from the time when the film was first released. The latter is particularly interesting in that the director is the narrator and refreshingly blunt about things at times. Nothing like a few "fucks" to do that. Great final line. The 1994 interviews also are interesting.

Preliminary "Mets Season Not Promising" Post

After tomorrow, the immediate thought is pitchers/catchers, which meet for NY teams in about two weeks. The Yanks look to come off a WS with most of the same key personnel. The Mets come off from an injury plagued mess unfortunately with basically the same. Blah.

Alcestis

Alcestis is best known (if known at all) for her sacrifice for her husband, who needed someone to consent to die in his place via a special dispensation granted to him by Apollo, who he was nice to while Apollo had to serve him (without him knowing Apollo's real identity) for making Zeus angry. Alcestis is also connected by family connection to various Greek heroes and was saved herself by her hubby's pal Hercules. She basically comes off as the symbol of a loyal wife.

But, Katherine Beutner chose to make her the heroine of her own story via Beutner's own first book. "Alcestis" does mean "valiant, courageous," from alke "protection, help, strength, power." Also, the voice from this poem (which she cites as an inspiration):

No other can be a substitute for him. I am.

I am his ransom. For no one else is finished,

as I am. What remains to me then of that

which I was, here? That is it, yes, that I’m dying.

Didn’t she tell you, Artemis, when she commanded this,

that the bed, that one which waits inside,

belongs to the other world below? I’m really taking leave.

Parting upon parting.

No one who dies takes more. I truly depart,

so that all this, buried beneath him

who is now my husband, melts and dissolves itself –

So take me there: I die indeed for him.

And, without the oratory, the book does have a form of the events in this poem, including the young players (the Greek play based on the story has them older, one she is no big fan of). The book tells her story, from her birth where her mother dies, her lonely youth, her marriage and trip into the Underworld. This all occurs by the time she is sixteen, so this can very well be a good book for the more mature teenager. It is good to keep in mind her age, a more mature woman perhaps would handle certain things differently.

The book provides a window into a different age and locale, including after all a vision of Hell. This it does well, all in the voice of the lead character (mostly; sometimes she sees and hears others discuss things), so a different perspective might tell us other things as well. For instance, we meet a few gods, a lot of sexual interaction going on among these people (Hercules/Heracles himself part god), and get a taste of how they view things differently, their otherworldly nature. Hades, a relatively minor character here, is of interest. We get an interesting taste of him.

I don't know how much the Admetus (her husband) / Apollo relationship was touched with a homoerotic flavor in myths and such, but she uses that here -- Admetus early on comes off as the weak-willed lover of Apollo though their relationship is only hinted at early on. The book makes a brief reference to why Apollo is loyal to him, but Alcestis never tells us if she knows the full story. But, given Greek practice, this sexual relationship fits. The author herself adds another one: Persephone, Hades consort, falls for Alcestis. Their relationship dominates the second half.

A half that somewhat rambles. The vision of the underworld is striking, but after awhile, it doesn't go anywhere. That is, it seems to be rambling on (I think thirty pages of the about three hundred page book could have been removed fairly easily), particularly her search for her sister (who died seven years earlier).* [spoiler] I guess the author wanted to be the one to give the story of her time in the Underworld, and do so in detail. Also, I guess there is a certain wandering nature to such things. Death does come off as dull.

Still, the book as a whole -- particularly the first half and parts of the second (the resolution works okay) -- is a good read. I was left wanting to know more about some of these characters. Of course, some can be found in the myths. But, I also wanted to learn more by the author's voice. Like, it was amusing to hear her young stepmother note how all men are really just boys, who like to drink and play games. Perhaps, some time.

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* Given her age and natural desires, her need to find her sister is understandable. But, we know early on how doomed it is, particularly when after only about a day, her recently arrived grandmother's memories greatly faded. So, after awhile it was like, oh come on, get it over with. Still, like someone who needs to see a body at a funeral, meeting the "shade" (spirit) of her sister, cleared of much form, was a necessary thing.

And, these things never come easy in myth, do they?

"Obama Should Move On Judicial Nominations"

And Also: Along with the judiciary article, Slate had one on Google Chrome. Firefox sometimes gives me problems, but Chrome doesn't do it for me. Don't like the "tab" look and the Firefox set-up is easier to use. Others noted a problem with certain sites and .pdf issues.

Obama has a difficult road ahead partly because of his failure to act swiftly on nominations during his first year in office. In 2009, Obama nominated 33 judges to the district and circuit courts, and the Senate confirmed 12. These numbers are, in a word, pathetic. New obstructionist tactics by Senate Republicans are partially to blame. But Obama deserves some blame, too; the paucity of nominees made it hard to scream too loudly about the lack of confirmations.

-- Doug Kendal

Given reference to Republican obstructionist tactics even to those that they eventually deemed appropriate (that is, few voted against at the end of the day) and Obama's efforts to involve Republicans in the process (more so than Bush, which is one reason why Dems selectively tried [in the end, most got through] to block nominees), why not complain loudly?

[Carl Tobias has written various articles on this issue as can be found here.]

Various reasons led to a limited number of nominations. Fine. But, given the much smaller number of nominations, the failure to confirm is that must worse. A 33% confirmation rate is rather sad, but it really is bad when in raw numbers were are talking about so few judges. The number of vacancies underlines the need to confirm whomever possible. I might turn it around -- if you are not going to confirm the few offered, what is the value of nominating more?

It will be harder now with 41 Republicans and a few more conservative Dems being antsy, but the article is on point respecting the need to face this problem. Nomination and confirmation of federal judges is a special duty of both the President and Senate, and the former must step up his leadership on the question. As with the Shelby holds situation, the system is broken, and steps need to be done to fix it. Obama's actions in this area already has led to some Republicans supporting his nominees, so some hope is there.

Either way, a strong effort is a must. And, Obama could be blamed for his role here, but let's recall the various things on his plate last year, some compromises on priorities likely to occur. Cf. 2001. Even after 9/11, Bush didn't have another major military conflict, an economic crisis or a Supreme Court confirmation to handle. OTOH, stem cells took months for him to settle.

But, short attention span theater will occur here. See the "Jackson" comment at the hold link. Charming b.s.

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* Goodwin Liu would be a good addition to the federal court, particularly if his co-author, Pamela Karlan will not be. Other young voices on the Right were confirmed last time, particularly after the "Gang of 14" acted, and equal time is warranted, putting aside simple merit.

[Update: One long time commentator on the process wonders if he actually is on the short list for a Supreme Court nomination, particularly if Ginsburg retires, a reality she thinks quite possible. Reports of the Administration preparing aside, I wonder about that, especially given she doesn't seem to want to retire, particularly at the same time as Stevens.

But, maybe her health really is that bad. Interestingly, Liu -- who seems a bit young to be a justice -- was a Ginsburg clerk. If a woman replaces Stevens, maybe the well respected (including by the top conservative judges she serves with) Judge Wood of Stevens' old circuit, that would be a sort of Roberts/Rehnquist moment while still keeping at least to women on the Court. She probably would prefer three, but a former clerk, highly qualified at that, is a nice back-up option.]

OTOH, Ted Olson was confirmed with 51-47, but 60 votes apparently is the test for Dawn Johnsen.

Book Talk

I share the "Bronx Book Guy" review of The Sodomy Cases (stupid title and it came to me in clear plastic!), an okay but disappointing entry in the landmark cases series. Being Erica was okay last night.

Slate Fray "Improves"

As noted here etc., I don't find the "improvements" to the Slate fray too promising. I actually was notified a couple weeks back as a special poster or something but never check that email, so just found out about it with the rest of the peons.

McCain Has Another Grampa Simpson Moment

And, what a spin job! As shown by the Second Amendment, as members of "the people," gays have a right to equal protection here. But, talk of "studies" etc. suggest yet more second class citizenship.

82nd Annual Academy Awards

Don't think we needed 10 Best Picture nominees. If chubby doesn't win, I'll be a bit surprised. And, I still don't want to see most of these films. Credit due: Saletan is spot on re: that CBS Super Bowl Ad.

60 Votes = Ho Hum Standard Policy

Sen. Gillibrand was on Rachel Maddow last night supporting repeal of "Don't Ask, Don't Tell" (her presumptive primary opponent was on Colbert), showing her "safe Democrat" bona fides. But, she (in passing/without comment from Rachel) made "60 votes" the test.

Life Unexpected

Correction -- as noted here, Being Erica star EK will come on the show in a few weeks. Life Unexpected is still rough, the grandparents were rather over the top, but I like the idea and the leads are likable.

She's Back

Being Erica is back. She's a bit too cutesy, but the first two episodes drew you back in to her therapy-cum-time travel life. Some story "bible" moments were of particular interest, including respecting Dr. Tom. And, overlap, EK will be on Life Unexpected tonight.