Jesus and Christ

The Good Man Jesus and the Scoundrel Christ by Philip Pullman is part of a series where various authors re-imagine well known myths. Pullman is best known as an atheist whose "bestselling His Dark Materials books, author Philip Pullman depicted the church as a corrupt and murderous bureaucracy and God as senile, frail and impotent." This book is if anything much more kind. It imagines Jesus had a twin (believed at birth to be the "Christ") who tries to institutionalize Jesus' ministry.

It is not some profound work, which is part of its charm. It is a fairly simple, straightforward telling -- many short chapters providing summaries of key events -- where even the high priest doesn't come off as totally a bad guy (he suggests exile for Jesus; no succor for Pilate, though). Jesus is in effect totally human here, though he believes himself a messenger (like John the Baptist) of a forthcoming Kingdom of God. He is impetuous, thinking the forthcoming kingdom so warrants (signs of this are in the actual gospels). He abhors the idea of some "church," allusions to corruption of the current one and wars fought in its name put in his mouth at one point. He in fact is quite distraught before being arrested, his love for humanity making his doubt of the presence and goodness of God that much more hurtful.

"Christ" in effect is a flawed man, the more human of the two in a sense, whose heart is basically in the right place. He is the campaign manager, who likes the message of the candidate, but isn't quite sure the people will accept it without some massaging, some "compromising." He also realizes the candidate is a bit reckless. He isn't wrong about this, nor is he unaware of the dangers of the compromising. But, the end result will be great ... he just knows it! The idea of a "twin," symbolically or actually has some history. See, e.g., here.

The author's true enemy is the church, the organized powers that be that will abuse its power. He uses a mysterious "stranger" to egg Christ on, to tell him that some higher "truth" is the important thing, even if the facts don't totally apply. I'm inclined to think the stranger is in effect a symbolic device for a force within Christ's mind. But, the good of the Church is not just a big lie. The difference here is the idea that there was an active fraud taking place, not that believers wanted to believe and was faithfully deluded. The story here is that they were helped, given something to believe in:

"Think of a sick man wracked with pain and fear. Think of a dying woman terrified by the coming darkness. there will be hands reaching out to comfort them and feed them and warm them."

I'm inclined to think things don't quite work that way though some very well might have went along with something like that in mind. Some of our Founding Fathers were not great believers, but did think religion was needed for a moral society. Again, this is not some novel idea. There are shades of Dostoyevsky’s Grand Inquisitor here. Also, the famous wager. In effect, the bet kept in place now is made into a type of parable itself, what was not so intentional shown to be more of a sort of somewhat benign (we never learn the true identity of the "stranger") conspiracy.*

The charm is that we are given a straightforward summary of the events of Jesus' life (if people are lead to re-examine the originals, including parables like this, all the better) plus the tortured Christ character, providing food for thought in a quick reading package.

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* The basic idea that the Church is a sort of image of the ideal kingdom, a still pretty good preparation of what we will experience only once we die was basically rejected by Jesus as "scented Greek rubbish." Like Thomas Paine, he loved and held remarkable what we have now, and feared the power of a Church controlled by elites. So, he would not go along with deluding the people, even for the higher good.

I find it dangerous as well. Once you go that route, the stopping point is unclear, and the deluded populace very well not only be deluded for good ends. Will the people not do good without such illusions? Seems possible, since so many have, including many who in some sense practice Christianity, but do not really believe much of what it tells us to believe.

And, some aspects of the story don't make much sense anyways, so very well might not be best even on that level.

"Judicial Activism"

Slate recently had an article about a "novel" property rights (so says Richard Epstein, who knows novel in that department; it uses stronger language at times) ruling by Judge Bybee, which brings to mind the whole "judicial activism" debate.

The term is used too often as some hypocritical buzzword, but if use intelligently, it can mean a broad use of judicial power, one that can be defended given the circumstances. How many think requiring a lawyer be supplied to the indigent as a basic rule when they are accused of a crime was a bad thing? Well, at least one around here [that is, the Slate fray] thinks it would be for non-citizens, but still ...

That was an activist ruling. And, it was correctly decided. Actually, if looked at closely, it wasn't as activist as some thought, since the courts were giving lawyers to indigents left and right anyway, so it was more of a rule of clarity. But, that tends to be true for many rulings, including some quite controversial ones, in some ways.

Liberals realize these rulings should be carefully decided and that sometimes the power used will result in judges making bad decisions. How would it be otherwise? The risk is worth it given the alternative is under-enforcement of our rights. And, lower courts provide a useful tool in this area, providing refreshing looks at the law while only having limited effects. Is this specific ruling correct? If Epstein thinks it is a stretch, I truly doubt it, but the fact that some conservative wrote an "out there" ruling doesn't tell me much. I need to know his overall record.

The problem is the hypocrisy, of course. When we do it, it's "compelled," when you do it, it's "activism." That's an abuse of the word. If the word is just going to mean "courts deciding wrongly," it's just b.s. Judge Sotomayor was blamed for not deciding in a "novel" way in a Second Circuit property rights ruling. If you want judges to be "activist," own up to it. Property rights, after all, requires responsibilities too.

In Memoriam

The best way to honor the fallen is to address the needless, or at best often badly managed, conflicts for which they do so.

"Sally's Pigeons"

It strikes me that abortion is not a subject covered much on the screen, but Wikipedia has a list of abortion related songs, Cyndi Lauper's about a friend who was a victim of a back alley abortion (a young Julia Stiles plays a young CL in the video) among them. Good song/video, but not quite sure about the pigeons.

Army Wives

I saw the latest Army Wives online and found out about Roxy's miscarriage. This after watching some Amanda (killed) clips on YouTube. Denise also worried about her son re-enlisting, for obvious reasons, but gave her blessing anyways. Death of someone you gave birth to and raised; now, that is really hard.

On the road again ...

Time for the Mets to lose. Fine. We won't rely on you. Happy? [Also: "The Tigers announced after the game that Dontrelle Willis will be designated for assignment." How about Perez? Please?]

"Excellent credentials" for what?

Apparently, Ms. Kagan has wanted to wear judicial robes since she was in high school. In a way, she seems to have been molded for the job. Most people viewed the newspaper photo of her wearing such garb as a high school student as quaint and prescient. Taking nothing away from her excellent credentials, I viewed the photo with some concern.

Contrast with Stevens here.

A bit more

The book also has good resources and at one point is quite right to note that we have to view things from a 21st Century perspective, understanding all we learned and experienced since Roe.

U.S. challenges AZ state alien worker law

And Also: Abortion & Life by Jennifer Baumgardner focuses on the personal, the core being stories of women who had abortions. The theme is the importance of listening, including to those who have complex feelings, or even are in some way "pro-life." One chapter also addresses bisexuality; "Roe" herself bisexual. More here.

No, not the one getting all the press, though it gets a passing reference. Still, there is some overlap of issues. As noted in the brief, the law in question here conflicts with federal policy, one that balances various interests including civil rights:

The Arizona law’s system of sanctions on employers for violations of its law, Katyal [taking over Kagan's job for the time being] said, “disrupt a careful balance that Congress struck nearly 25 years ago between two interests of the highest importance: ensuring that employers do not undermine enforcement of immigration laws by hiring unauthorized workers, while also ensuring that employers not discriminate against racial and ethnic minorities legally in the country.”

A full discussion can be found here.

Justice Souter's Constitutional Vision

While the younger generation apparently doesn't care, retired Justice Souter just gave a commencement address over at Harvard. Didn't they get the memo? The Boston Globe summarized his message:

Consider the facts of the case. Read the Constitution. Make a decision.

If only it were that easy, retired Supreme Court Justice David Souter said today at Harvard's 359th commencement.

Souter challenged what he called the "fair reading model" of constitutional interpretation: a constitutional claim is made, the judge looks at the Constitution (or law in general) to see if it is legitimate and the facts simply either do or do not support the claim. Life tends to be harder:

the facts that determine whether a constitutional provision applies may be very different from facts like a person’s age or the amount of the grocery bill; constitutional facts may require judges to understand the meaning that the facts may bear before the judges can figure out what to make of them

The problem here is that the analysis here often requires the judge to decide a question where various constitutional values compete and/or where the provisions are not absolute, even if (see the First Amendment) they literally are read that way. He cited the Pentagon Papers Case -- the government lost, but not because the First Amendment was deemed to be absolute.

Also, the Constitution is applied so "their meaning [is] for the living" in part because "we cannot share every intellectual assumption that formed the minds of those who framed" it. This is showed by the changing understandings of the breadth of the Equal Protection Clause. As he noted:

The Constitution is a pantheon of values, and a lot of hard cases are hard because the Constitution gives no simple rule of decision for the cases in which one of the values is truly at odds with another. Not even its most uncompromising and unconditional language can resolve the potential tension of one provision with another, tension the Constitution’s Framers left to be resolved another day; and another day after that, for our cases can give no answers that fits all conflicts, and no resolutions immune to rethinking when the significance of old facts may have changed in the changing world.

The lack of simplicity is a challenge, the fear of "judicial activism" in part a desire for a simpler realm. But, such is an "illusion and repose is not our destiny." A closer look at those who claim to be more restrained, including self-professed conservatives, underlines the point. The need to determine the proper result among competing values as applied to modern reality is a complex understanding, one different judges apply in different ways. A confirmation hearing is a good place to get a window into how that person fits in. You know, if any of the kids today care and all.

Justice Souter expressed his philosophy in one of his final opinions, a somewhat atypical personal one that provided a sort of judicial farewell:

Changes in societal understanding of the fundamental reasonableness of government actions work out in much the same way that individuals reconsider issues of fundamental belief. We can change our own inherited views just so fast, and a person is not labeled a stick-in-the-mud for refusing to endorse a new moral claim without having some time to work through it intellectually and emotionally. Just as attachment to the familiar and the limits of experience affect the capacity of an individual to see the potential legitimacy of a moral position, the broader society needs the chance to take part in the dialectic of public and political back and forth about a new liberty claim before it makes sense to declare unsympathetic state or national laws arbitrary to the point of being unconstitutional. The time required is a matter for judgment depending on the issue involved, but the need for some time to pass before a court entertains a substantive due process claim on the subject is not merely the requirement of judicial restraint as a general approach, but a doctrinal demand to be satisfied before an allegedly lagging legal regime can be held to lie beyond the discretion of reasonable political judgment.

He also noted that the judge was not simply providing idiosyncratic decision making here:

It goes without saying that the conception of the reasonable looks to the prevailing understanding of the broad society, not to individual notions that a judge may entertain for himself alone [cite omitted] and in applying a national constitution the society of reference is the nation. On specific issues, widely shared understandings within the national society can change as interests claimed under the rubric of liberty evolve into recognition[.]

He ended his address on a general note:

That is how a judge lives in a state of trust, and I know of no other way to make good on the aspirations that tell us who we are, and who we mean to be, as the people of the United States.

So, yeah, the confirmation of the replacement of his friend, who did this for 35 years, is sort of something to care about. If the debate is going to be about her sexuality or other b.s., yes, it is not something to care about. But, Dahlia Lithwick and others have the responsibility to make it about the former.

Their Party Will Get More Seats in '10? Really?

This controversy over a planned Muslim cultural center in the general WTC area -- nearly unanimously approved by the local board -- underlines how stupid the critics are. A YouTube search of this person doesn't improve my opinion. Not all alternatives are better, ok?

Mets Shut Out Phils For 27 Innings

Miss USA is a Mets fan. Yay.

Sen. Webb: Profile In Courage ... Not!

The Senate Armed Services Committee has voted to repeal the Don’t Ask/Don’t Tell statute and give the Pentagon discretion to end the policy. The vote? 16-12, with Maine’s Susan Collins voting to join all but one of the panel’s Democrats. The lone Democratic dissenter? James Webb.

Sure not quite McCain level dickery.

Freedom Is Not Enough

The subtitle: "The Moynihan Report and America’s Struggle over Black Family Life—from LBJ to Obama"; it's by James T. Patterson. Review here. Helpful summary of an important issue, nicely modest in tone.

Expanded Fios Channels Thoughts

A few days ago, I cited The Wedding Song, which was in part refreshing for its open portrayal of female sexuality/nudity. In many ways, it was more erotic than late night porn, which tends to show a lot less. Do plastic, often anorexic, women please that many? Is showing a cock once the road to homosexuality?

There is always Disaster Movie ...

It would have been more merciful for writer-director Michael Patrick King to have rented Carrie, Samantha, Charlotte and Miranda out to the "Saw" franchise, or to Rob Zombie, so we could watch them get shot in the head or skinned alive by Arkansas rednecks.

Just some S&TC2 Love! The title movie had a scene where a crossdresser Carrie was beaten up. Almost as good as the homeless meth head Enchanted chick! Not great, but had its moments.

Mets at .500 again

In the midst of some good cheer, for now, the Mets even had Valdes (who managed to get to second safely this time) get a RBI double along with his three inning save, Dickey playing the Figueroa (who gave up that double) journeyman fill-in role.

Sentencing Without Quite Knowing The Crime

“It was a very, very serious offense,” Williams said. However, in an unusual admission, [Judge] Williams went on to say that while he assumed that the disclosures had a serious impact on national security, he really didn't know because he wasn't privy to what information was disclosed and what impact it had.

Seems a bit off. More here.

"Does Elena Kagan want to ban books? No, and she might even be a free-speech zealot."

[Richard L. Hasen, the expert on campaign law, wrote the title article. This is a reply I posted over at the Slate fray.]

Since free speech matters is one area where Kagan has something of a track record, it could be useful to use her writings and advocacy as something of a window into her philosophy and possible actions as a justice.

She will likely try to limit the questions in various cases because of her role when advocating the various positions, including as solicitor general. The article does this somewhat itself, including arguing that she was new to the job and was coming into an active case. OTOH, her roles here will be used to provide not only bona fides as to experience but also assurances to those on the left (and elsewhere) who are worried about her positions (or lack thereof). A bit of having your cake and eating it too will occur. See this very article -- the idea she might join the majority in Citizens United will not please many Obama supporters.

The banning books matter provides a ready soundbite, though one of questionable value given (1) the popularity of the legislation at issue and (2) Stevens dissented in Citizens United. As with the keeping military recruiters off campus/hate the military soundbite, it is also misleading. This doesn't quite take her off the hook. As she noted in oral argument, books were never targeted and if they were, it would be a good "as applied" challenge. OTOH:

Chief Justice Roberts: But we don't put our (.) we don't put our First Amendment rights in the hands of FEC bureaucrats; and if you say that you are not going to apply it to a book, what about a pamphlet?

General Kagan: I think a (.) a pamphlet would be different.

A pamphlet is pretty classic electioneering, so there is no attempt to say that 441 b only applies to video and not to print.

So, no Federalist Papers in book form, but the individual essays ... Okay, but are we talking "ban" here or not? The article notes:

But to these justices, requiring the corporation to set up a separate fund to pay for corporate election-related spending was a "ban" on speech, because PACs impose administrative burdens on those who run them. And thus the idea that the government was ready to ban books was born.

Lots of concerns are raised regarding "freedom of speech" that does not directly go to "banning" the speech itself. For instance, the Court determined anonymous pamphlets by individuals was protected under the First Amendment. Freedom can be burdened without directly banning the specific matter. And, so is the case here -- this regulatory regime is complicated and expensive. It also in various ways prevents corporations and unions directly to speak, indirect methods set up, particularly PACs. It "bans" them in that respect. We then determine if that's okay.

It is quite true that we can only take so much from what Kagan advocated as solicitor general, though I'm inclined to believe that taking that position (or the role she had under Clinton) means she is generally sympathetic to the views of the administration as a whole. We are not just talking total hired guns in such political positions, are we?* There is some debate on what her First Amendment views, including in the political campaign regulation context, truly are. Thus, the "blank slate" quality of her nomination.

Articles like the "private speech/public purpose" one that are tasked as 'descriptive' of Supreme Court case law do only so much to help fill in some details. She provides an extended analysis to argue that illicit motive is a primary concern in Supreme Court cases in this area; it isn't the only concern, but it appears to her the major one. Is this a good thing? She doesn't really want to make such a normative determination, her role understanding what the Supreme Court decided (which now will be her new role). For instance:

Democracy demands that sovereign citizens, through each generation, retain authority to evaluate competing visions and their adherents to decide which ideas and officials merit approval.

So a law with a motive that invades such choices would be wrong. But, how much of a "zealot" is she? Any number of "motives" might be considered that seem not to invade such democratic decision making (e.g., to protect animals by not portraying their harm -- at least, this can be claimed; I'm not supporting it here). Hasen notes that "she is deeply concerned about incumbents passing laws to protect themselves from competition." But, is a law concerned with legalized bribery (as some say) okay? Kagan in FN143 here suggests the problem with the case overruled in Citizens United, but it is unclear to me if she supports the recent ruling or felt some other governmental interest should have been used to uphold the law.

Free speech along with presidential control of agency decision making seem to be the two areas where Kagan actually has some significant scholarship to her credit (though the latter is specifically focused on one seminal article). Where she falls is unclear, though a fair bet would be a type of Justice Breyer.** Focusing on her support of "banning books" won't be helpful, but when "regulating pamphlets" might be okay ... well, we might have an opening.

Some more discussion of her views can be found here. Bottom line, a confirmation hearing should somehow be a chance to determine how a specific candidate is different from another -- they aren't all fungible, even if pablum hearings try to convince otherwise.

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[footnotes added]

* To the degree Obama is not liberal enough, or whatever, his nominees will in various cases be somewhat upsetting to critics.

** This is an educated guess determined by such things as her purported pragmatic tendencies, her support of Justice Breyer's approach in that department in her "presidential administration" article (certain executive action is appropriate if it advances certain ends; this seems related to the "motive" analysis of free speech, where a restrictive law might be legitimate if it furthers certain ends) and Obama's use of him as a model in his campaign biography.

Another Way in Arizona?

A Slate article today suggested allegedly neutral checkpoints might provide a means better than the current infamous "papers please" law passed:

If Arizona truly wants to identify undocumented aliens in a way that does not undermine legitimacy, it should try randomized checkpoints. Checkpoints are widely used by police to enforce drunk-driving laws and other routine safety checks—such as seat belt laws—that save lives.

To the degree that concerns are cited that the new law invades the federal realm regarding regulation of aliens, this solution seems of limited value. The same basic possible state invasion of a federal regime seems to be involved.

Second, the interests cited here underline that such checkpoints have been upheld for limited regulatory purposes. Having the general public being randomly checked, as compared to drivers those at borders or certain transportation hubs and so forth, seems to me "unreasonable" under the relevant precedents. Also, visual checks for alcohol or seat belt use is not quite the same thing as checks for immigration status, which involves racial characteristics and requests for identification. The likely effects in practice and social effects as well are different. The latter has some troubling self-incrimination concerns as well. Finally, one thing appealed to by many of the rulings is that one basically could avoid such stops by not driving or the like. If that was the case here, the value would be much decreased.

Police can do a good job finding offenders without having to play their hunches. Policing agencies are required to have a good reason to set up a checkpoint, of course.

It would interest me what this would be.

But once a checkpoint is set up, individual officers don't need to exercise their discretion. In fact, they can't under constitutional law. In the absence of discretion, the harm of being publicly targeted dissipates. And when officers don't need to invest in looking for individual offenders, but rather stop people on a routinized basis, they treat them equally and—we can hope—with more respect.

The discretion would be determining where to set up the checkpoints and having the proper authority to do so, the extended time and effort necessary not to be wasted when the courts determine they were acting illegally. Outside of border areas (and then core cases focus on federal action), has it been decided that such checkpoints are allowed? If so, why haven't they been used? Perhaps, like some sheriffs who oppose the new law, they find them relatively unhelpful to deal with the problems at hand?

It is questionable if such regimes will in action be as neutral as suggested here. Their legitimacy might still be questioned. But, their value as well. The reason for so many undocumented aliens is basically because the powers that be like the idea of a cheap labor force and support policies that encourage mass influx of people -- legal or not -- from Mexico. This is one reason current federal laws regulating hiring such people are so weakly enforced. Avoiding the point with makeweight solutions will be as useful as past measures that do not address underlining concerns, though when dealing with such mega issues, this admittedly might be all that is possible in the current climate.

Checkpoints might be of some value, I guess, but I'm doubtful.

[Update: Over at the Slate fray, I was told by a resident that the feds have such checkpoints. At one point it was noted primarily in the southern part of the state. It was unclear to that person how additional ones -- if the resources were really there to staff them -- would be that much more useful. Perhaps, if there was no more 'drug war' -- well, yes, that is one influence on the problem anyways, including a major increase in violence and disorder in certain major Mexican cities.

Another person basically reaffirmed my suggestion that in practice they would be carried out in a discriminatory way while being deemed intrusive without the limited possible (at least in the public's mind) value of a sobriety checkpoint. Some reference to employer/employee checks also were made, one person suggesting there might be constitutional limits to that (don't really buy it -- Congress, e.g., has power over interstate commerce and immigration matters, which can in that limited way include some identification requirements).

Again, the limits inherent in the system are apparent. As to national id cards, much debate on that in the past, privacy and technological matters raised. I'm left again with the idea that the supply and demand is high enough to suggest some panacea is not likely, if even we as a whole really want to make the real efforts necessary to do it. This "solution" in particular is dubious.]

Mets Do Good

Though giving fans heart palpitations in the ninth, the Mets aces did their job with some help, the home series against a weakened Yanks won. Now the (new) back-end has to face the Phillies.

The Wedding Song

Filmed with subtle eroticism and dreamy intimacy, the girls’ bond becomes a compelling love story that will be tested not only by personal grudges but also by anti-Jewish propaganda and inflamed animosity for the French colonists.

It is the eroticism and intimacy, so rarely truly provided in film, that is particularly striking. The rest is good too.

Mets' Hell: What's on the Plate Today?

Takahashi and Vazquez trade zeroes for six, the former working harder at it. Two runs (one earned) score after an error sets it up, some nonentity doing it. Wright gets last out, tying run on second, after striking out with two on in seventh. Can't watch that shit.

Rand Paul Again

Even people not bothered by his position allowing discrimination are bound to react badly to his dodging a question for a whole interview and then trying to pretend his position is different from what it clearly was. He looks like simultaneously a dodger, flip-flopper, and extremist. Just one day after the primary, wow.

See a comment here. As I said as he was speaking, this was the worst part of it for me. You can see what got him in trouble on the Rachel Maddow show here and here (legal analysis of his confusion), various analysts focusing on his views. And, that's fine. But, his refusal to be upfront about them should get more emphasis. It's connected as well since it is typically how horrible views continue -- they are believed and accepted, but not truly brought out in the open. In fact, when they are, the people who try to do so are blamed:

"I think what you've done is you bring up something that really is not an issue, nothing I've ever spoken about or have any indication that I`m interested in any legislation concerning," Paul told Maddow near the end of their long discussion about the Civil Rights Act. "So, what you bring up is sort of a red herring or something that you want to pit. It's a political ploy. I mean, it's brought up as an attack weapon from the other side, and that's the way it will be used."

Rand willingly came on Maddow's show, early (by some accounts) in effect announcing his candidacy there as well. He is supposedly to be respected as an independent voice, someone running against the establishment candidate. Yes, we might not some of his views, but like his dad, we should be happy he honestly stands by them, some of which can have cross-party support. This would include the opposition to so many foreign wars, though some suggest he is toning that down at tad.

Instead, he can't answer direct questions (basic questions about seminal pieces of legislation are mere "abstract" matters anyways -- aren't libertarians and such all for first principles?) and instead whines that it all as "politics" and gotcha journalism from the left. So f-ing lame. A real worthwhile candidate would be willing to be upfront about and debate their views. Query: okay, you mostly support the Civil Rights Act, so if your attempts to try to modify them failed, would you have voted for it? (After all the noise, he finally said "yes") Would you have supported a filibuster? What does regulation of public accommodations have to do with firearms, anyways?

"Well, there's 10 -- there's 10 different -- there's 10 different titles, you know, to the Civil Rights Act, and nine out of 10 deal with public institutions and I'm absolutely in favor of," he told Maddow deep in their 15-minute interview. "One deals with private institutions, and had I been around, I would have tried to modify that."

Maddow -- getting annoyed at his filibustering and avoidance tactics -- finally asked "yes or no" as to keeping blacks from Woolworths lunch counters. Again, he was all about how he wouldn't support such businesses (blah blah) but if you are against that you in effect are supporting micromanaging all private business, including (bugaboo time!) their right to have guns. Is this some guns in Starbucks deal? Anti-discrimination laws are still around, the current issue sexual orientation. And, if strong beliefs honestly defended isn't his thing, what is the point of electing the guy?

The basic premise is off, clearly, but he doesn't really want to talk about it, apparently. Justice Douglas once noted that a business (often subsidiaries of big corporations) is not the same thing as a private home:

But a restaurant, like the other departments of this retail store where Negroes were served, though private property within the protection of the Fifth Amendment, has no aura of constitutionally protected privacy about it. Access by the public is the very reason for its existence.

Yes, it is still in some form "private property," but the thing is that all property is regulated, particularly public businesses. "Ownership does not always mean absolute dominion. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it." They are deeply regulated by the state, and just as racial covenants cannot be upheld in the courts, racial discrimination in this context is the state supported discrimination Paul says he is wholeheartedly against. The first Justice Harlan knew this back in 1883:

In every material sense applicable to the practical enforcement of the Fourteenth Amendment, railroad corporations, keepers of inns, and managers of places of public amusement are agents or instrumentalities of the State, because they are charged with duties to the public, and are amenable, in respect of their duties and functions, to governmental regulation. It seems to me that, within the principle settled in Ex parte Virginia, a denial, by these instrumentalities of the State, to the citizen, because of his race, of that equality of civil rights secured to him by law, is a denial by the State, within the meaning of the Fourteenth Amendment. If it be not, then that race is left, in respect of the civil rights in question, practically at the mercy of corporations and individuals wielding power under the States.

The Supreme Court never overturned The Civil Rights Cases, which held a 1875 civil rights act against discrimination in public accommodations was an improper use of congressional power to enforce the Fourteenth Amendment. The Civil Rights Act of 1964 therefore used a back-up approach: regulation of interstate commerce, which the Supreme Court upheld though Douglas and Goldberg noted Harlan's approach was perhaps better. Again, it was not merely "private" but the regulation of the economy. Douglas again:

Business, such as this restaurant, is still private property. Yet there is hardly any private enterprise that does not feel the pinch of some public regulation -- from price control, to health and fire inspection, to zoning, to safety measures, to minimum wages and working conditions, to unemployment insurance. When the doors of a business are open to the public, they must be open to all, regardless of race, if apartheid is not to become engrained in our public places. It cannot, by reason of the Equal Protection Clause, become so engrained with the aid of state courts, state legislatures, or state police.

Justice Harlan -- as discussed by Justice Goldberg's opinion in Bell v. Maryland* (a sit-in case) -- noted that the right to equally be served in public businesses is a "civil" right. It is not a "social" right alone, the argument of Rand Paul. Both Douglas and Goldberg in various opinions underlined that the responsibility of "common carriers" to serve the public equally has a long history. Justice Harlan's argument is that Congress surely has the power (mixed with the responsibility) to apply that rule to prevent racial discrimination. If "[t]here is one, if there be no other" right given by the Fourteenth Amendment, it was the right to be go to a public business without being stopped because of one's race (broadly understood to include one's nationality or even one's religious faith).

The other two justices went a step further -- even without congressional legislation, a state had no power to allow otherwise, enforcement of racial discrimination in public accommodations not "neutral" but illegitimate state action. Original understanding was somewhat mixed on that, but Goldberg provides some signs that it can be deemed loyal even by that rubric. They note that legislative action was not the only way racial discrimination was allowed -- common law, legal custom and executive action also did the trick. It is naive to suggest segregation was "voluntary," given social custom, but governmental action also popped up all over.


So, Rand and libertarians in general cannot not confuse the Civil Rights Act with invasion of private associations or the right of people to be hateful. Public businesses are not private associations. The line drawing here can be complicated, including when dealing with large business associations or the specifics of discrimination laws. I'm sure lots of interesting stuff about regulations of business (including labor law) can be imagined. But, basic points can be settled. This includes basic understandings of historical events that simply are not that long ago.

I can respect but strongly oppose people with views that are simply wrong or misguided at best. But, they have to be willing to honestly discuss them with some degree of skill. Or, I will simply find them both wrong and distasteful. Too much of that already. Paul is no breath of fresh air in that department.

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* Robert M. Bell later became an attorney and in 1984 was appointed as a Judge to the Maryland Court of Appeals, a court that had ruled against him in Bell v. Maryland, and where he became its Chief Judge in 1996.

Latest Mets Drama

Checked the score and it was the second inning, the Mets up 3-0. But, hey, something had to go wrong: Maine was out after five pitches (Valdes went 5+, again doing well, including a hit and bunt; better time on bases) because his pitching looked hinky.

I Am Murdered: George Wythe, Thomas Jefferson, and the Killing That Shocked a New Nation

Bruce Chadwick provides a thumbnail sketch of his book here, which is not only about a botched murder investigation but about the great man "murdered" and his times. Excellent teaching method. Good read though repeats some of the Wythe stuff and slights the trial.

"Mets triple play and an inside-the-park home run by Angel Pagan not enough in 5-3 loss to Nationals"

Headline says it all. Also, "Dickey was reasonably effective and lucky, allowing two runs in six innings in front of Pagan's stellar defense." But, a ball sneaked through and Nieve (slipping) iced it. Getting but one run in a bases loaded, one out, situation didn't help.

Rand Paul: Same Old BS

The guy was on Rachel Maddow and asked about a state newspaper that said he is opposed to federal civil rights laws barring discrimination in public accommodations. He avoided the question forever, finally sort of addressing it, talking about freedom of association. Total b.s. filibustering move.

Mets Struggles On

So far Pagan hit an inside the park home run and started a triple play, which bad baserunning made so easy that he could have did it unassisted. This helped Perez's replacement/knuckballer get a no-decision through six though it was not that easy.

U.S. v. Comstock: Let's Not Take It Too Far

I am talking about the 7-2 decision in Monday's United States v. Comstock, a case that asked whether the federal government has the authority to continue to indefinitely detain a person who has served out his federal prison sentence, or who is deemed incompetent to stand trial, if the government has clear and convincing evidence that he is a "sexually dangerous" person. The high court had already granted state governments this power. But precisely because this is the traditional realm of the states, the 4th Circuit struck down the civil confinement federal statute, finding that it "granted the federal government unprecedented authority over civil commitment—an area long controlled by the states."

Dahlia Lithwick is responding to a ruling that has gotten some people nervous. But, is it a traditional realm of the states to determine when to release federal prisoners?

As noted by the article, the Supreme Court (via split decisions for which Scalia/Thomas supported broad state power) already held that such a basic civil commitment regime is allowed under the Due Process Clause though it requires some limitations as to determinations of dangerousness (S/T dissented in that case). The liberals dissented 5-4 in regards to extended detention past the time they were sentenced criminally.* Let it be noted, however, those deemed dangerous to others now can be detained civilly under a 'clear and convincing' standard as a general matter.

The law here provides some safeguards, including court hearings, treatment, requirements to transfer even sexually dangerous criminals once their federal sentences are up if states are willing to take control of them and putting certain decisions in the hands of directors of the treatment facilities -- who have to notify the court when the person is deemed no longer dangerous, including pursuant to treatment regimes where such lack of dangerousness might be a matter of drug treatment or oversight. This doesn't necessarily justify it, but we aren't talking "throw Padilla in a hole" somewhere type regimes.

As to federal power, the case looked at five general interests, taken as a whole. Any one piecemeal might not have been enough. The concurring opinions, probably rightly, were somewhat worried about the open-ended nature of some of the language. But, in a different context, five votes would not be there (e.g., a general murder statute), so potentially overblown dicta really should be taken with a grain of salt. The issue here are federal prisoners, not even some health insurance regime, which anyways, could be defended by recent rulings like Gonzalez v. Raich (the medicinal marijuana case) anyways. The ability to detain those deemed mentally unfit also is different from enemy combatants, including those Obama wants to detain for fear of dangerousness that is not mental but criminal or perhaps somehow military.

Leave an opening, it often is taken, but it also is important to not make more of an opening than it reasonably can be understood to provide. The feds might try to use selective quotations of the ruling for their ends, but nothing unique to this case in that regard. Bottom line, I might not like the power given to detain people civilly in respect to those labeled dangerous sexual deviants, but given the power was held there already, the application here does not seem unwarranted.

Thus, a 7-2 ruling, with two "federalists" wary at some of the language in pro-federal power Justice Breyer. At to the article's reference to Obama, this is pursuant to a congressional statute (related to one upheld decades ago), and if he tries to apply it to non-germane matters, sure, call him on it. Enemy combatant regimes etc. aren't to be struck down on federalist grounds though. As to basic concern for federal power, again, Scalia and Thomas was less protective than some in the majority in that general area most of the time, weren't they?

It is a win for Kagan as SG, after a few losses. Any port in a storm.

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* To update that point, the liberals dissented on somewhat narrow grounds, allowing civil commitment if it was less punitive. As Kennedy noted in his concurring opinion:

If, however, civil confinement were to become a mechanism for retribution or general deterrence, or if it were shown that mental abnormality is too imprecise a category to offer a solid basis for concluding that civil detention is justified, our precedents would not suffice to validate it.

And, a follow-up opinion partially addressed that concern. But, again, though discussion of this case tends to elide past it, this case is about enumerated powers, not such due process concerns.

British TV

Doc Martin, about an anti-social doctor not comfortable with blood, is a spin-off of the Craig Ferguson movie Saving Grace. Well done, first three seasons available at link. Co-star plays a detective in Murder in Suburbia, also fairly enjoyable. Didn't see her in The Vice yet.

Rima Fakih: Muslim Plot or Just Babe?

Some are wary that left (aka sane) leaning Muslim (or Muslim enough) folks are winning beauty contests these days. Now this! Clearly, the Barbie Doll runner-up should have won. OTOH, the winner is rather hot. But, why no love for Miss NY?! Racism, I bet.

Children Are Such Scamps, Aren't They?!

Or something. Funny article; I think we can handle the word "shit" though and passing your cursor over the link to the website tells you it anyways. Perhaps links can be use for other words?

Obama Goes The PTB Route

Meanwhile President Obama is hitting the phone lines with robocalls for Specter and Lincoln.

IOW, for establishment candidates in an anti-incumbent year, both who probably deserve to lose. Way to go!

Odds and Ends

Illegals Id: The NYT had an interesting article on some locales providing id for illegals. This goes beyond the drivers' license issue and suggests a useful middle path to take that provides some security in the process:

The local identity cards do not grant legal residency or the right to work. They are intended to fold illegal immigrants into the fabric of the community by giving them entree to services and places that require some sort of recognized identification. In Trenton, immigrants can use their cards to access libraries, medical centers and doctors’ offices; seek help from charitable organizations and private social service agencies; and use the city’s public recreation centers and pools.

LWOP: Kennedy/Stevens have been consistent as to "juveniles are different" and the severity of LWOP, though Stevens applied both with stricter hand. See, separate opinions by each.

Film: Enjoyable Walter Matthau/Glenda Jackson romantic comedy, House Calls, was on yesterday. I with him: she's a good catch. Jackson retired from acting and became a Labour member of Parliament. She still is. The two joined again in Hopscotch, a lighter version of the book by the same writer.

Sports: Interesting article on how flag football had been a mild success as a female school sport.

Supremes Decide Teen LWOP Cases

And Also: The list cited by the fourth comment here is but another useful bit of perceptive to answer the "same old, same old" complaints. As with Kagan, criticism of Obama and the Dems need not rely on caricature.

The Supreme Court today decided that the Cruel and Unusual Clause of the federal Constitution "does not permit a juvenile offender to be sentenced to life in prison without parole for a nonhomicide crime." Events might lead this to happen in practice, but "some meaningful opportunity" must be left open at sentencing. Dahlia Lithwick discussed the orals here. For another analysis of the opinion (of which I basically concur; I'm not overly enthused about the "counting noses" approach but it probably has some relevancy particularly as to "unusual") see here.

Five justices, lead by Kennedy, set forth an across the board rule. Danger of mistake, a decreased ability of minors being able to help in their cases and the need to give all a chance of rehabilitation and/or release warrants such an absolute rule. International practice was cited as informative but not determinative -- we interpret our own law, but current analysis of it in this area is aided in some fashion by seeing how others address similar problems.

Chief Justice Roberts agreed that it was unconstitutional as applied to Graham (Sullivan's case was tossed out as improvidently granted) given the totality of the circumstances. But, citing some possibilities by name (a bit curious, that), there very well might be other cases where the heinous nature of the offense or clear culpability of the offender warrants such a punishment.

Thomas dissented, joined in full by Scalia, Alito not joining in a section discussion original understanding and some analysis of precedent. Roberts respected such analysis but noted that it is not at issue here, since the litigants relied on precedent. This underlines that the conservative bloc is not always on the same page.

Stevens (with Ginsburg and Sotomayor) wrote a short statement rejecting Thomas' opinion, particularly underlining the evolving standards of decency rule and the importance of the courts' role in applying it (Thomas et. al. would mostly leave it to democratic processes, but also rejected the analysis of the majority on what they as a whole did decide).* Sotomayor apparently is not only to be honored for empathy, but also for acting emphatically. [See also, the same two, but not Breyer, joining Stevens' dissent in a cross display case.]

[Update: Reading the opinions via the .pdf file provided by Scotusblog, I missed Alito's brief dissent, which the link provided here makes more apparent.

Alito first notes that since only a sentence of LWOP is disallowed, even one of forty years could very well be acceptable. This does show a line drawing problem, but only up to a point -- it is still significantly different if these defendants had a chance of getting out of prison in their fifties as compared to never. Cf. "The Man Without A Country," sentenced in the Jeffersonian Administration, dying while still be punished in the Lincoln Administration.

He also argues that "the question whether petitioner’s sentence violates the narrow, as-applied proportionality principle that applies to noncapital sentences is not properly before us in this case," but Roberts disagreed, arguing the broader argument made allows a lesser one as well.]

It is hoped that Sullivan will eventually get relief pursuant to some other action. [See here for some discussion of that case's complications.] The matter of life without parole for minor murderers is left open. The blog just cited suggests the theory of this ruling very well might apply to "lesser homicides" too. Probably so. Anyway, I will end it there.

---

* Thomas' footnote three calls the majority to account for not addressing the "threshold" question regarding the original understanding as applied to this practice. He cites an opinion on the point but selectively -- the opinion notes this is "at minimum" what the Eighth Amendment commands and then follows up with the "evolving standards of decency" rule.

Stevens is troubled by Thomas' implications that original meaning jurisprudence would require allowing seven year olds to be detained for life.

Society changes. Knowledge accumulates. We learn, sometimes, from our mistakes. Punishments that did not seem cruel and unusual at one time may, in the light of reason and experience, be found cruel and unusual at a later time; unless we are to abandon the moral commitment embodied in the Eighth Amendment , proportionality review must never become effectively obsolete.

While Justice Thomas would apparently not rule out a death sentence for a $50 theft by a 7-year-old, the Court wisely rejects his static approach to the law. Standards of decency have evolved since 1980. They will never stop doing so.

But, Thomas' bare citation is only of limited value since it addresses a "common law" (which itself is open to development) rule regarding detention and perhaps execution of minors. Since extended detainment -- particularly given the embryonic nature of the prison system in 1791 -- is quite different, I'm not sure how far that takes you anyways.

Mets Go From First To Last Place

That was fast. Hitting iffy, reliable starting and relief pitching has fallen to the wayside now too, with errors helping today too.

Obama's Jurisprudence?

And Also: Not that it was a surprise, many against the decision when the three year contract was signed, but how many times will we have to deal with Perez's pitching? Isn't it lovely an alternative is now a back-up for the Phils, while the twelfth man kept is still on the DL?

Dahlia Lithwick -- who is popping up all over the place including on Colbert -- had an article recently on the jurisprudence of President Obama. This led me to write this:

From Audacity of Hope:

I have to side with Justice Breyer's view of the Constitution -- that it is not a static but rather a living document, and must be read in the context of an ever-changing world.

His respect in the "fidelity" of the Constitution reflects the views of Goodwin Liu, who he nominated for the Ninth Circuit. Liu offers the left a chance for a strong constitutional theorist to be on the courts, someone many might wish will wind up on the Supreme Court. Both place an important place in "deliberative democracy" to give meaning to the Constitution; to quote Obama:

in which all citizens are required to engage in a process of testing their ideals against an external reality, persuading others of their point of view, and building shifting alliances of consent. ... [O]ur individual and collective judgments are at once legitimate and highly fallible.

This suggests he has a pragmatic view of judging, judges guided by a Breyer "Active Liberty" (to cite his book) approach, which furthers deliberative democracy and certain basic freedoms found in the document. The concern for democracy can fit in with Obama's concern for a judge who applies the law with the eye of the average citizen, his concerns for "empathy" in that regard. [See here and here for discussion of how "mere background" is not the deciding factor there. Her elite status is not promising as much as someone else in that regard, but it is not disqualifying empathy-wise. Kagan's ability to relate well with conservatives is a sign in that department.]

Kagan's most cited work, a discussion (with approval) of how presidents in recent years have taken a more direct role in the administration of laws, cites Breyer with approval. This includes the possibility of something like a line item veto (struck down via an opinion by Stevens that Kagan felt was poorly reasoned, supported by Clinton) or other congressional/executive policies that some might think give too much power to the President (cf. Stevens joining Scalia in dissent and Breyer joining the plurality here).

But, that he trusts to fallible process, fallible enough that the courts should give them some discretion unless the Constitution in some fashion blocks the way. Of course, there are various areas where he thinks this occurs where others do not -- up to a point, for instance, abortion rights are protected by various provisions. For instance, it can be that it is a choice taken out of the democratic process or (the Ginsburg approach) necessary for equality inside it.

Even here, he has a more flexible view than some, probably less so than Stevens in various ways. Rehnquist was seen as an ideal for someone like Bush, so he was replaced by his law clerk, John Roberts. Stevens is only an ideal for Obama up to a point. Breyer is more his ideal, so we who want a Stevens were set up to be disappointed, instead getting a Kagan.

Bad for Us: Reading This Book

See this review for a flavor of why a potentially interesting subject was so tediously examined here. It really rambled on late.

Karlan on Stevens

Someone labeled by Greenwald sparring partner Lessig as a member of the "far left," we see some differences from Kagan -- she actually has wrote at length about her opinions while actively promoting liberal legal views. Surely not nominating material!

The City of Thieves

Picked up this book after learning the new Dixie Chicks spin-off took its name from a "book" cited inside. It is an enjoyable fictional account of a mismatched Russian pair looking for some eggs during a seige in WWII. One plot turn annoyed me but as a whole good read.

Good Luck Charlie

Listening to the songs and interview that can be linked up from the Court Yard Hounds website -- good stuff. A new cute series is on Disney, the most familiar face played a teen vampire on WWP. A mock exterminator commercial on a recent episode was very clever.

Connections

The sisters of the Dixie Chicks started a new band -- "Court Yard Hounds," the name from a WWII novel, The City of Thieves. The author of which is Amanda Peet's hubby, who just had a baby (seen via a cute clip on Letterman recently). Also, robbery victim.

"Not Milk?": Dairy Petitions the FDA to Block Labels Like "Soy Milk" on Non-Dairy Products

Prof. Colb argues "milk" provides a functional value for vegans ("rice milk"). True, but it also matches a semi-common definition: "any liquid resembling this, as the liquid within a coconut, the juice or sap of certain plants, or various pharmaceutical preparations."

As Perfect Game

Perfect games tend to come against at best mediocre teams, exceptions aside, so the leading MLB Rays falling victim to the As was quite impressive. The Nats also are doing well, pushing the mediocre again Mets down a peg more. [But not today!]

Yes, What the Hell?!

“Why do the conservatives always get the conservatives, but we don’t get to get the liberals?” Senator Tom Harkin, Democrat of Iowa, asked the Web site Politico recently, voicing the frustration of the left when Ms. Kagan was considered a front-runner but was not yet Mr. Obama’s selection. “What the hell is that all about?”

More on Kagan

And Also: Rhonda Copelon recently died; she might have failed in her one abortion funding case [Stevens had a classic dissent], but had better success in other human rights issues. [snark deleted]

I added "more" and expanded the "update" below.

[More: The fact she is a non-judge will be used as a means to show that she adds diversity to the Court, but on a certain level she is more of the same. She adds yet another person with a NYC background, East Coast Ivy League connections and close ties to political elites. Cf. Sidney Thomas, who might be a judge, but who at least provides a Western voice.

Digby also has a good bit on her alleged coalition skills. Again, who knows? But, given that, her main pluses again become less useful balances to her negatives. See also here, particularly the quote by Scott Horton. She's a charming person who wrote an article that is impressive; we are supposed to avoid that she might be too supportive of executive power? Because, you know, we can trust her?]

Jonathan Turley provides some convincing points on the Kagan nomination, including a red flag on one of the few issues she actually wrote about -- free speech matters. One article discusses various cases and basically suggests the basic rule is to determine if the motive of the law is unjust. This could allow various limits, if the law is crafted the right way. Justice Stevens was not free from this sort of thing (e.g., Texas v. Johnson, flag burning; various campaign finance laws). Breyer also takes such an approach at times. It doesn't work for me, particularly to the degree it allows most regulation of porn.

[This is all summary judgments, of course, and the open questions are not only suggested by her saying the articles were something akin to 'trial balloons,' but discussions like this that argue that she might not even support Obama are his bête noire -- Citizen's United!]

I'm also not as open, apparently [good source overall, including links to her writings], to accommodating religion and government. This case has not been mentioned so far by the usual suspects I come across yet, but it is worthy of emphasis. She is cited as pulling back from a legal memo she wrote as a law clerk, which is okay, but she goes pretty far:

Kagan elaborated as well on the memorandum to Justice Marshall discussed above. “I indeed believe that my 22-year-old analysis, written for Justice Marshall, was deeply mistaken. It seems now utterly wrong to me to say that religious organizations generally should be precluded from receiving funds for providing the kinds of services contemplated by the Adolescent Family Life Act. I instead agree with the Bowen Court’s statement that ‘[t]he facially neutral projects authorized by the AFLA-including pregnancy testing, adoption counseling and referral services, prenatal and postnatal care, educational services, residential care, child care, consumer education, etc. are not themselves “specifically religious activities,” and they are not converted into such activities by the fact that they are carried out by organizations with religious affiliations.’ As that Court recognized, the use of a grant in a particular way by a particular religious organization might constitute a violation of the Establishment Clause – for example, if the organization used the grant to fund what the Court called ‘specifically religious activity.’ But I think it incorrect (or, as I more colorfully said at the hearing, ‘the dumbest thing I ever heard’) essentially to presume that a religious organization will use a grant of this kind in an impermissible manner.”

This was an important case that involved religious based abstinence education and provided an opening for the now well established practice of using government funds by religious groups even in this ideological landmine. The dissent was very wary, in effect, making the case it is not so "dumb" that programs that "to promote self discipline and other prudent approaches to the problem of adolescent premarital sexual relations" very well might be presumed problematic when religious groups funded by the government. Doubtful Kagan will be as for separation of church and state (some of Stevens' most eloquent opinions) as her predecessor.

Other than her apparent ability to form coalitions (Stevens and Brennan managed to do so as well while being more liberal than many think she will be; also, what about down the road, ten years for instance, when the current conservatives all might not be here any more?) and her charming personality, a drawing card is her influential article on executive power. See, e.g., here. Greenwald has noted that various people note she supports executive power, her work in the Clinton/Obama Administrations suggesting why, but the article appears to be best as a discussion piece:

Kagan identified and gave a label to an important development in the contemporary administrative state, the absorption into the White House of actions formerly -- and formally -- attributed to administrative agencies (both executive branch agencies such as the Food and Drug Administration and "independent" agencies such as the Federal Communications Commission).

I don't really know where that will take you. Will it be a more trusting view of agency discretion or such? Is that necessarily a good thing? Congress in recent years has a tendency of giving the President a lot of discretion, which can go either way, and I'm not overly enthused about giving the President a lot more power in that department. I also fear it will be used by Republicans too. Finally, I'm not too enthused about some of the discretion Obama is using now. This aside from requests for Congress to limit Miranda!

[Update: I skimmed the article (it's blocked via a firewall where I accessed it) -- it's a bit thick. I think this agnostic approach, so to speak, is a useful one. It is getting some praise, but maybe a bit too much -- it is after all but one article. Others have written lots of articles of some length or even books. So, I won't read too much in this one, but others can't use if to help build her up too much either.

Also, she mentions congressional oversight and judicial review provides checks here. What if the former isn't provided and the latter is controlled by conservatives? Plus, separation of powers is not just a matter of voluntary checks; this is why legislative and line item vetoes were declared unconstitutional. Kagan might find them acceptable too. So, her support of Congress checking "presidential administration" when it feels like it to me is not enough. Again, this is but a red flag and question mark.]

A possibly middle path on free speech (Kennedy is if anything more absolutist in this area ... this is not a promising development) and a thoughtful but mixed bag at best substantively view on some aspects of executive discretion doesn't do enough for me. It helps though to add some chops given some put her out as some sort of legal lightweight, even if she was a great administrator (only a dean at a top law school, you know). I also think her take on military recruiters on campus is a mixed bag. As Bazelon noted, it was not a "radical" path. I don't quite buy this though:

If she really believed "Don't Ask Don't Tell" was wrong, then why did she go along with the compromise that let Harvard keep its federal funding? That's the problem with the middle ground: It's not pure. You can criticize the law schools for buckling under when their universities were faced with the loss of hundreds of millions in federal funds, but, really: What realistic choice did they have?

Wikipedia tells me:

Harvard Management Company (HMC) is a wholly-owned subsidiary of Harvard University, charged with managing the university's endowment, pension assets, working capital, and non-cash gifts.[1] HMC is perhaps best known for managing the university's $34.9 billion endowment,[2] the largest endowment in higher education.[3]

So, if the policy is as horrible as she said it was, why not refuse the money? Boycotts are suggested in Arizona because of the "papers please" law and that will hurt businesses and workers without that sort of money. Idealism sometimes costs something. She might have had only limited discretion as dean (who made the final call on money matters?), but her path seemed basically more talk than hard and fast action. And, the article noted some LGBT groups felt betrayed.

Settling doesn't mean you get nothing. She will bring a fresh view and will provide consistent liberal votes on various issues, though it is likely that it will be moderate liberal votes, to replace someone who was both a coalition builder AND someone who repeatedly provided strong liberal opinions/dissents. There are lots of options, of varying charm, and there were better ones here. I will give Turley the last word:

For liberals, the problem is her “pragmatic” approach to civil liberties and support for Bush policies. Stevens was the fifth vote in opposing such policies and Kagan could well flip that result. Few could have imagined that voting for Obama would have resulted in moving the Court to the right, but that appears to be case with the selection of Kagan.

Obama’s record on civil liberties has long been attributed to a rather cold calculus that liberals have no where to go and that he should continue to play to the middle and right of the political spectrum. I am not so certain. There is no evidence that Obama actually believes in some of the principles that Stevens fought for, particularly in the area of terrorism. What is clear is that he has selected someone who will honor that legacy by dismantling a significant part of it if her testimony before the Senate last year is any measure.

My heart is not in it as much this time as last. Sotomayor was a good pick, criticism resting on phony "wise Latina" stuff and the idea that she might be a bit too workman-like and moderate. So far, she seems to be consistently liberal, at least as much as the current Court offers that. We shall see how Kagan fares.

It's Kagan ... Joy

Stevens replaced by a liberal O'Connor? On strategy grounds alone it's bad. But, you get Obama, you got Obama like picks. The debate is depressing, including lame ass attacks on her lack of judicial record (like Powell and Frankfurter?) and the gay angle. The defenses too.

David Wright Thrown Under The Bus By SNY Duo

And Also: Whip It is a fun enough movie and good first film for Drew Barrymore as actor/director. It largely follows the book; I think the best friend should have received more time, including at least one of the cut scenes. Elena Kagan is settling. Boo.

I don't like a lot of the on air baseball analysis out there. From the suck-ups over on the Yankee side to the annoying Sunday Night Baseball team over at ESPN. The best probably are the WGN Cubs duo (the former Arizona manager is a bit too effusive at times, but is likable overall -- no total homer like the White Sox guys) and some of the "B" game guys at ESPN. The Mets radio team is pretty good too though the usual play by play guy is not great. The ESPN Sunday Night baseball radio team actually is pretty good come to think of it.

The SNY Mets team is pretty good and professional, including old timer Ralph Kiner when he stops by, and the field reporter who actually does some real work unlike the mostly twinkie brigade in most football games. Ron Darling is probably my favorite, though Sundays he does the TBS games (for a long time, it was the Braves station, but for some reason, no longer). The other two -- Gary Cohen (who used to be the radio play by play guy) and Keith "Ego" Hernandez are good as well. I can do with a bit less trivia from Gary but Keith's "tell it like it is" style works.

But, sometimes, they just piss me off. Yesterday was such a day. First off, the game was a toss away -- the ace vs. mental case Oliver Perez (again, why did we get Figgy, who now fills in for the Phillies? to hold on to a reliever who now is on the DL and hopefully is let go for something more useful, like a water cooler or something?), even though (which turned out to be the case) the Mets had a habit of snake-biting the guy. The Mets are akin to a barber to the Giants ace. But, it all amounted to a no decision, the name of the game this week -- blown leads.

A result of wind and bad play, the Mets came back and had two shots of regaining the lead blown soon after it was achieved. The first time little used pitch hitter Frank C. struck out via some tough pitches and a ball that barely (like a millimeter) grazed his bat. He was pissed, not having that many shots as it is, but the announcers calmly noted yeah it was a good call. This isn't very empathic, especially given the moment and how annoying it is, but I guess, such is baseball. It happens and he is just a new bench player.

The ninth was a different matter. Same situation -- man on second, less than two outs, this time David Wright at the plate. He's struggling of late. So, he was pissed and aggravated when a borderline pitch struck him out. Keith, who usually has no respect for batters who strike out from anything close, for him was somewhat understanding: it was not bad enough to take, but he wasn't overly passionate about it. This suggests the borderline nature of the pitch, putting aside the important point of the game -- bottom of the ninth, losing by one run, a chance to make up for two losing series.

A team leader who has no record of only caring for himself passionately upset. He can be forgiven for it. But, Gary doesn't really go into this. He notes -- not over the top or anything but definitely puts it out there -- that he hurt his team given he was ejected and they had no more position players. The fact it was David Wright and he can be forgiven (but still deserves criticism) was not mentioned. Nor that it was a pretty fast hook (did he say a bad word?) of an important player in a key spot. No, they just went to praising how good the other team's closer was pitching.

[Also - let me say I didn't hear all of the play by play after the second batter, though there wasn't much I missed, and the time to say anything was when he was thrown out anyways -- the Mets already was hurt by a questionable non-strike call in the series already. They managed to win eventually, but even the announcers (a rarity) felt it was a blown call. This very well might have been in David's mind, also not mentioned.]

Let me say that this annoys me too -- you have to comment on such things, yes, but when you are the crew for the home team, you can tone it down a tad without being homers. They don't do this enough in my opinion, including at key moments like this. [One thing I don't like about Keith is when he sometimes notes such and such was a "good game" when the result was a Mets loss, as if winners and losers doesn't really matter here or that we were watching from a neutral site like ESPN.] And, not talking about the umpire or the big picture about Wright isn't even objectively a good neutral analysis.

The closer -- as he should -- kept the guy at second, even though the Mets had three shots to get him in. So, concerns about what would happen if they tied and had to put a pitcher in the outfield (and an outfielder out of position) never came about. Personally, I wouldn't have cared -- I respected David's passion and again felt he deserved to be forgiven for any pickle he put the team in. He is not a selfish player and especially given the position the team were sort of assholes not to be more on his side, instead not even bringing up when it mattered key points, and going on to instead focus on raving about the closer. And, suggesting what he should throw to make sure the Mets lose.

The latter is just annoying given the fans' mentality at the particular moment, the former something else. Am I the only one who feels this way?

Remember, He Was 15 At The Time

Four top Gitmo journalists have been blocked because they printed a name of a witness under seal. RM noted yesterday (based on this coverage) that the witness [whose name was already publicly available] noted he threatened rape etc. to get the defendant to talk.

Mets Get Out Of Self-Inflicted Jam

It was suggested that last night's Mets game was best of the year. The home runs and various plays were fun, but the three errors and blown save (with an umpire assist) were not. The exciting finish was result of that blown save and a failure to tack on a run.

Early May Holidays

The ruling on hold, the National Day of Prayer went on, the day after the Mexicans celebrated. Hey, they too hate the French! Let's not forget May Day. And, of course Mother's Day.

Stevens: Last Common Law Justice?

Justice Stephen Breyer ... is willing to go one step further and decide the case in accordance with his views of the appropriate policy. Justice Ruth Bader Ginsburg ... tends to be more constrained about the exercise of judicial power. As for Justice Sonia Sotomayor, it’s too early to tell.

As with Souter, I like this aspect about Stevens. Again, facts and an understanding of their significance matter. See, e.g., here.

Are Basic Constitutional Values THAT Hard?

Delaware was once part of Pennsylvania. A bit obscure ... unlike things like rights of citizens/persons (both get Miranda rights) or the problems with stripping citizenship based on allegations of whatever group determined at the moment to be "terrorist." Dweebs.

NYM to Fans: Don't Believe Yet

After a long winning streak, the team loses four of five, two blowouts against a nemesis with their best pitchers and two extra inning home run jobs. Yet again the team wants to drive fans crazy, feeling good a matter of when you are watching. NL typical? Oh shut up.

Stevens Round-Up etc.

SCOTUSBlog has a running feature concerning Justice Stevens, including this one that includes some collection of audio and other material, such as a transcript of his interview with Brian Lamb.

A law school blogger/court watcher who is getting some attention lately wrote a good piece on Stevens' last question in an anonymous speech case. A taste:

Then, as the white warning light turned on upon Bopp's lectern to signal that his half-hour was almost up, Justice Stevens leaned forward and spoke into his microphone:

Would it be legitimate public interest to say, I would like to know who signed the petition, because I would like to try to persuade them that their views should be modified? Is there public interest in encouraging debate on the underlying issue?

When Bopp called such an interest "marginal," Stevens continued:

Well, [public disclosure] does identify people who have a particular point of view on a public issue. And if you have the other point of view, don't you have an interest in finding out who you would like to convince to change their minds?

With that one line of questioning, taking up no more than a minute in the hour-long argument, Justice Stevens politely condemned the culture wars' hardened partisanship that has poisoned the country's political and legal climate in the decades following his confirmation to the court in 1975.

Bopp also answered Scalia's sarcastic retort about those who publicly sign ballot measures being required to submit personal identifying information having to be able to take the heat of opposition by pointing out to threats to a campaign manager's family. But, wouldn't such top supporters already be public figures? The law might be overbroad (only recently was the public record law applied so broadly) and as applied some who simply sign a petition might not have to submit the information. But, as applied to this guy, that's a hard sell constitutionally.

The blogger also points to a decision made by the Supreme Court, with Breyer and Ginsburg making public their opposition, to not allowing the public to enter the Supreme Court building through the front door. Breyer speaks of the symbolism:

But the significance of the Court’s front entrance extends beyond its design and function. Writers and artists regularly use the steps to represent the ideal that anyone in this country may obtain meaningful justice through application to this Court. And the steps appear in countless photographs commemorating famous arguments or other moments of historical importance. In short, time has proven the success of Gilbert’s vision: To many members of the public, this Court’s main entrance and front steps are not only a means to, but also a metaphor for, access to the Court itself.

This is why, even though visitors will remain able to leave via the front entrance, I find dispiriting the Court’s decision to refuse to permit the public to enter. I certainly recognize the concerns identified in the two security studies that led to this recent decision (which reaffirmed a decision made several years ago). But potential security threats will exist regardless of which entrance we use. And, in making this decision, it is important not to undervalue the symbolic and historical importance of allowing visitors to enter the Court after walking up Gilbert’s famed front steps.

The symbolism reminds me of Speech Out Of Doors by Timothy Zick, which points to the important symbolic messages various types of locations adds to protests, such as those who protest in front of the Supreme Court. The same C-SPAN series that included the Lamb interview discussed the somewhat unexpected role the public space there had over the years for protests. The opening entrance -- I think too of the stars of The First Monday In October going up the stairs -- has similar cachet. Going through a side entrance, not so much.

A final comment on Stevens. The discussions in the series of posts referenced at the beginning suggest a polite, hard working, carefully reasoning and open to change justice who trusts judges to make hard decisions, but who often took small steps. Though at times I might disagree (Texas v. Johnson -- and his support of anti-flag burning laws -- underlines the problems with not following consistent rules) with him, these are great qualities, in a person and a justice. He is the epitome of a public servant.

TV Quickies

Rules of Engagement, after a few lulls, was funny tonight -- Jeff/Audrey rules again. Wizards of Waverly Place, not so much. It has shown iCarly signs -- losing focus, getting tired. True Jackson is holding up okay. Latest Internet watch: Doc Martin.

Does My Head Look Big In This?

This is Randa Abdel-Fattah's first novel, which involves an Australian-Palestinian teenager who decides to start wearing the hijab. Largely general teen angst stuff; appearance and religious choice are steady themes. Best for teens, particularly females.