Sen. Gillibrand (Babe-NY)

Sen. Kirsten Gillibrand aka "Supermom," number 3 on The Hill's Beautiful People list, top among actual members of Congress. She's cute, but not sure how she beats six and ten. Pic from here. She's also not a a bad senator either.

Ginsburg Goes the Quiet Tough Route Again

Good and pretty combative (with nod to Kagan hearings) speech by Ginsburg on international law. Will she and Breyer be more combative now that Stevens is gone? Friday Nights Lights was pretty good, if of the waiting for the other shoe to drop variety, tonight.

Arizona Immigration Law A Whole CAN of Worms (Federal Power Edition)

A federal judge has put the infamous Arizona immigration law on hold in various respects pursuant to a lawsuit brought forth by the federal government on pre-emption grounds. The link allows you to read the decision as well as some interesting comments on the general subject. Dilan Esper in particular has some interesting things to say:

What supporters of the law are really arguing is “if the federal government refuses to enforce its own laws, including for sensitive reasons of foreign policy, the Constitution permits the states to step in and override the federal enforcement choices rather than restricting the remedy to impeachment of the President or removal via the electoral process”. And there’s no reason to think that THIS is the case.

Overall, precedent has determined that foreign policy (and immigration as it fits in or by itself) is the role of the federal government, though states can get involved in various cases when it affects local interests or when given discretion to do so by the feds. As bhaal notes, this includes the power of the executive to establish certain policy decisions, decisions that might not be necessarily compelled by federal law. All the same, states cannot on their own choose to follow what they deem the "better" policy:

It’s stunning that anyone is attempting to claim the Supremacy clause only concerns ‘law’ and not ‘policy’. The job of executing the law is given to the President — Art II §2. Without someone putting it into effect a law is just a piece of paper or letters on a screen. If the Supremacy clause did apply only to the law in theory or States were free to interpret it themselves then any State could apply their own interpretation of it, claim it wasn’t being executed properly and do it themselves, making a mockery of any kind of organised system of laws in the country. In order for federalism to actually mean anything there has the federal Executive has to decide how to execute the laws that Congress pass and those laws and decisions have to override inconsistent actions of the States. Reading the Constitution in the way suggested by some results in absurdity. ....

It would be ludicrous if a State could pass a law, as Arizona has done, which appears to conform to federal law, but actually attempts to enforce that law in its own way, with additional penalties, or with skewed priorities.

Dilan provides a great summary of the interests in question:

1. I think that the status quo on immigration is a tacit compromise between business interests, the Mexican government, and Hispanic groups on the one hand and labor unions and nativist groups on the other, and that the Constitution permits such tacit compromises. It in no way dishonors his oath of office; however, if it did, the remedy is to impeach.

2. The President “refuses to enforce US law” all the time, if you mean exercises his discretion (through the Justice Department and administrative agencies) to decline to prosecute or bring enforcement actions against people or entities who violate it. Again, though, if in a particular case this seems improper, the remedy is impeachment. [Still, not bloody likely to occur.]

3. I don’t think letting illegal immigrants stay in the country in any way makes the US less sovereign. What sovereign is challenging us over any significant amount of our territory? What people don’t recognize the US as sovereign? What sovereign immunity has the US lost? This is overheated political rhetoric from anti-immigrant conservatives. Plenty of countries (1) have illegal immigration problems and (2) retain sovereignty.

4. As I said, Mexico obviously isn’t going to invade. But Mexican cooperation is crucial on several foreign policy issues, including terrorism, drug trafficking, free trade, hemispheric cooperation, and, yes, controlling migrant flows. If the President determines that the best way to secure such cooperation is not to be draconian in enforcement of immigration law, that is precisely the type of foreign policy judgment that it is his right to make. The Constitution doesn’t grant the 50 states the power to make 50 junior foreign policies that conflict with Presidential determinations, or to blithely declare that whatever actions they take that piss a neighbor off actually have no effect on foreign policy.

There remains some debate over the plenary power given to the federal government over the issue of immigration, but at least in this context, I think the Commerce Clause is a primary source. The ruling of Heart of Atlanta Motel, Inc. v. United States, in particular, aspects of Justice Black's concurrence, provides some useful information in this context. I will provide some excerpts that show the breadth of the power, the rightful control by the feds when the matter is beyond the concern of a single state and how a system as a whole justifies a policy even if looking at a few stray individual cases might suggest differently. Some citations are removed:

It requires no novel or strained interpretation of the Commerce Clause to sustain Title II as applied in either of these cases. At least since Gibbons v. Ogden, decided in 1824 in an opinion by Chief Justice John Marshall, it has been uniformly accepted that the power of Congress to regulate commerce among the States is plenary, "complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution." Nor is "Commerce" as used in the Commerce Clause to be limited to a narrow, technical concept. It includes not only, as Congress has enumerated in the Act, "travel, trade, traffic, commerce, transportation, or communication," but also all other unitary transactions and activities that take place in more States than one. That some parts or segments of such unitary transactions may take place only in one State cannot, of course, take from Congress its plenary power to regulate them in the national interest. The facilities and instrumentalities used to carry on this commerce, such as railroads, truck lines ships, rivers, and even highways, are also subject to congressional regulation so far as is necessary to keep interstate traffic upon fair and equal terms.

Furthermore, it has long been held that the Necessary and Proper Clause, Art. I, § 8, cl. 18, adds to the commerce power of Congress the power to regulate local instrumentalities operating within a single State if their activities burden the flow of commerce among the States. ....

But, in deciding the constitutional power of Congress in cases like the two before us, we do not consider the effect on interstate commerce of only one isolated, individual, local event, without regard to the fact that this single local event, when added to many others of a similar nature, may impose a burden on interstate commerce by reducing its volume or distorting its flow. ....

"The genius and character of the whole government seem to be that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the States generally, but not to those which are completely within a particular State, which do not affect other States, and with which it is not necessary to interfere for the purpose of executing some of the General powers of the Government." Gibbons v. Ogden.

The broad use of "commerce," back to the days of CJ Marshall, underlines how immigration fits in, particularly "travel" (another comment cites a case where states were stopped from blocking travel given it burdened commerce) and "trade," including (as Dilan notes) the relation it has to other countries. The fact some stray person might come here to see a baseball game or the like does not remove the fact that regulation of immigrants in this context has a primary effect on commerce. As noted, the fact that "some part" might affect the state itself does not remove the plenary power because the overall scheme affects the nation as a whole. This makes sense since "the external concerns of the nation" reasonably are the concern of the nation, not individual segments therein acting perhaps in competing ways.

Along with the "necessary and proper" clause, also cited by Justice Black, federal regulation of immigration can usually be easily fit in the commerce power, along with other assists such as the treaty power. This is often how it was so regulated in the 19th Century as well. The lawsuit seems on solid ground.*

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* Republicans are having a bit of a disconnect since the judge has received their support in the past. This includes -- how surprising -- selective use of "activism":

"She didn't overturn the law," said Sen. Jon Kyl (R-AZ), the second highest ranking Republican in the Senate. "She said that portions of it -- the bulk of it -- needed to be enjoined because of her view that it was pre-empted by federal law because it created undue additional burdens on the federal government. This judge is not an activist judge. She had to make a decision. She made a decision. I don't happen to agree with it, but she's not an activist." ...

"I don't know if it's so much judicial activism as it is a failure to understand the federal government's responsibility when they don't carry out their responsibility then the states have to do it for themselves as a matter of security," said Sen. John McCain (R-AZ).

Very clarifying. I jest. McCain's statement too. What other federal functions can states do if the federal government (in his opinion) doesn't carry out "their responsibility," I wonder. Let's see. Congress has various enumerated powers. If they don't properly carry them out in a way some state thinks burdens their interests, individual states have the power to step in, even when their actions affect "external concerns of the nation."

Yes, unlike some, I'm glad this guy isn't President.

Knuckleballer to the rescue

They were right to keep Niese, even with Oswalt being offered, since team needs another pitcher, not just a replacement for a rising star. R.A. Dickey went 8.1 innings on three days rest, which works better without the losing that came before it. Look forward, huh?

Mets Won Yesterday, So No Win From Santana

The team did pick him up after he had a real lousy first inning, but they still lost in extras, though no Perez appearance this time. Anyone who thinks coming back from six down is still a moral victory is thinking like a loser. As this team still is.

Some Viewing

Friday Nights Lights (via IMDB -- has five episodes so far from this season) was a good touch since it has been an iffy week on media. Two books on interesting subject matter (including polygamy) just was written in a way that I could not handle. One was too graduate school, the other too flowery in a fashion. Annoying. I have read relatively little fiction over the years in part since I generally have trouble finding a style of it I like. Nonfiction can be like that too.

Netflix was not totally ideal either. The Vicar of Dibley second series and final two episodes were a mixed bag. Overall liked the first series about the first female vicar to a small English town, first seeing a bit on PBS (and not the main channel), later seeing the first six episodes on a DVD from the library. Amusing show, but one comment somewhere was correct: it got a bit too focused on the main character and at times went for the cheap joke. Often the most charming part was the final bit after the credits, where the vicar tells a joke to her "verger," who never gets it. By chance, the profane farmer character once guest starred on Doc Martin. These shows eventually always run together.

I just saw a good movie that I first watched in a charming theater downtown near a bridge. The Sticky Fingers of Time (there are five fingers you see -- the past, present, future, what might have been and might still be), the director of which later making another film I later watched. IMDB will tell you what one. Creative indie this one is with a perfect sense of style and character. And, soy milk isn't that bad. You just need to get the right kind.

Time passes. The theater is no longer there, nor the time. The 1990s are no more.

Sherrod Lessons

John Stuart Mill once said that even glaring error should be allowed to be spoken, not criminalized that is, because truth can come with collision from error. This doesn't mean we want to encourage such error, but it's likely to come all the same. And, like in the Shirley Sherrod case, we better try to learn something from it. Including all the stuff that it brings to light.

Lots of stuff, it seems. The perils of being weak-kneed and knee-jerk in particular, especially when people with stated desires to destroy the left [as a clip on Jon Stewart showed], even if it requires fraudulently edited video to do it. Fool me once .... Did not we learn from the ACORN debacle, shown to be filled with crap as well?

But, the strength and insight of the woman herself was inspiring, especially those who learn about her life story. In a different context, Sherrod (and the white farmers who spoke out for her -- farmers who some might at first glance stereotypically say look like those likely to be racists) sounds like someone President Obama would provide as a symbol.

The story also brought to light a little known federal lawsuit:

Five months after President Obama announced a $1.25 billion settlement for black farmers who faced overt discrimination by the USDA in the eighties and nineties -- and several days after the Sherrod case brought the issue up again -- Congress again refused to authorize the money.

A "settlement" underlines that the courts aren't the only place we go to obtain justice. It also shows that even after discrimination is found, it takes the other branches to deal with the situation, which has not been fully accomplished -- this thing has been going on since the 1990s -- here.

Those who have read/listened to more than a couple minutes of her speech also learned a bit about the history of racism on the ground. Again, Sherrod knows something about that given her father (a black farmer) was killed by a white person when she was a girl, the grand jury refused to indict. It helped her decide to stay and work for justice; it is in that context that she then noted that eventually she learned it is about helping poor people of all races. It is something like if someone was raped, pledges to work for the rights of women, but finds out some college frat boy had his rights violated by the policies of the college and -- though she isn't really interested at first -- helps him.

Sherrod also spoke about the history of law enforcement in the state, including two racists sheriffs, one the subject of a major civil rights case back in the 1940s.* We too often forget that such perversion of the role of the government was not that long ago, putting aside that it still occurs in certain contexts to this day. This led to some discussion of lynching, including historical attempts (in part blocked by filibustering) to address it on the federal level. As the links suggest, this led to some attempts to call her a "liar" or the like for her use of the term "lynch," but also that (as with her treatment as a whole) even some natural critics (including people at American Spectator) think the people went too far here.

Does that mean the likes of Andrew Breitbart will be shown as persona non grata by them? It is a long process -- doesn't take too many dissenters, as shown by Republicans for Obama in '08, for some progress to be made. Anyways, hopefully some lessons will be learned here.

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* The SC was closely divided in part because the use of federal civil rights laws were still fairly novel; the opinion started:

This case involves a shocking and revolting episode in law enforcement. Petitioner Screws was sheriff of Baker County, Georgia. He enlisted the assistance of petitioner Jones, a policeman, and petitioner Kelley, a special deputy, in arresting Robert Hall, a citizen of the United States and of Georgia. The arrest was made late at night at Hall's home on a warrant charging Hall with theft of a tire. Hall, a young negro about thirty years of age, was handcuffed and taken by car to the court house. As Hall alighted from the car at the court house square, the three petitioners began beating him with their fists and with a solid-bar blackjack about eight inches long and weighing two pounds. They claimed Hall had reached for a gun and had used insulting language as he alighted from the [325 U.S. 91, 93] car. But after Hall, still handcuffed, had been knocked to the ground they continued to beat him from fifteen to thirty minutes until he was unconscious. Hall was then dragged feet first through the court house yard into the jail and thrown upon the floor dying. An ambulance was called and Hall was removed to a hospital where he died within the hour and without regaining consciousness. There was evidence that Screws held a grudge against Hall and had threatened to 'get' him.

Prayer

And Also: I watched Friday Nights Lights a few weeks ago for the first time because of an abortion themed episode, but after watching a few more episodes, this might be a keeper. Knock on wood. Good writing and performances does the trick.

In answer to a Slate Explainer column, I noted:

For one, Catholics, who unlike Protestants believe in purgatory, think prayer helps speed the transition from limbo to heaven.

Why is this different from helping people go into heaven itself? That is, under the logic of the belief structure? From personal experience, I also wonder how many Catholics truly believe in purgatory or limbo these days.

Under that logic, when a Christian prays for someone who has died, he is also praying for himself. He therefore brings himself closer to God and closer to salvation.

This seems the most logical path. For instance, a prayer of thanksgiving recognizes one's blessings and helps one remain humble about them. A prayer in honor of someone who died, including to obtain solace and strength, also is personal and humble. Like chanting, yoga, mediation and other devices, prayer also is a means to center onself and reach what many see as "sacred," a special place that often but need not solely be in some fashion ultimately about a God-type being. It also might be a means to be right with nature. This makes it a type of "religious" experience in my eyes.

Prayer is personal as well as having a communal aspect. A group of people praying can be like any other group -- each person on their own is one thing, as a group, there is a certain power. It also can be important to know people are praying for you. Maybe, this even works while in limbo? Anyway, just like someone appreciates when they know a person is thinking about them, knowing a person is praying for you can help. To the degree that well being is in part mental, this also might have some value when you are sick. Someone alone, for instance, might have a harder time of it even if they have the same disease, the same medical resources.

Of course, some faiths -- especially in mythology -- believe that supernatural beings are listening, and do care if many people are appealing to them through prayer.

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* The photo has the woman appearing to hold a rosary. Such items can serve as a means of focusing yourself. It is something like the idols of the old, sometimes ridiculed as if people were praying to stones. But, many didn't think the idols were gods themselves, but means to focus oneself to a supernatural that humans could not themselves see.

Some thoughts on Wikileaks

And Also: Prof. Levinson talks about filibusters and judicial nominations, leading some thoughts from you know who, including a link to a criticism of Sen. Graham's theory on judicial nominees.

Secrecy News last month provided this fairly negative take on Wikileaks as an irresponsible organization with self-promotion tendencies. Given the critic's organization is in place to promote openness, the essay not surprisingly resulted in some negative responses. And, I think it was a too heavy-handed attempt (one shared by some journalists who have talked about the organization, if not in so negative of a light) for balance. Are they to blame that their leaks were not taken as seriously as others? Yes, the "collateral murder" label on that now infamous video was a bad piece of misguided commentary.

The MSM has its share of excesses all the same, including involving fairly unimportant individuals and revelations that needlessly violate privacy. The criticism is bit too much like this one by television analysts against "anonymous bloggers," which btw shows that similar complaints can be made on the Internet as a whole. The material could and would be leaked in various ways; Wikileaks just provides a platform. And, it does limit itself, such as only releasing lower level "secret" documents, not truly top secret stuff (as noted by the founder in press conference aired on C-SPAN) and redacting names (as noted by a guest on Rachel Maddow, well guest hosted by Chris Hayes) last night.

The increase of the use of "secrecy" (both the label and the selective secrecy of information that still is leaked when deemed fit, including by semi-official sanction) recalls Justice Stewart's opinion in the Pentagon Papers case. He probably relied to much on the good graces of the executive, but his words are ever more true:

I should suppose that moral, political, and practical considerations would dictate that a very first principle of that wisdom would be an insistence upon avoiding secrecy for its own sake. For when everything is classified, then nothing is classified, and the system becomes one to be disregarded by the cynical or the careless, and to be manipulated by those intent on self-protection or self-promotion. I should suppose, in short, that the hallmark of a truly effective internal security system would be the maximum possible disclosure, recognizing that secrecy can best be preserved only when credibility is truly maintained.

Like prosecutorial discretion, the reality of leaks provide a safeguard to excessive secrecy and the resulting dangers. As Justice Douglas noted in the same case:

Secrecy in government is fundamentally anti-democratic, perpetuating bureaucratic errors. Open debate and discussion of public issues are vital to our national health. On public questions, there should be "uninhibited, robust, and wide-open" debate.

What was the net result from the release of the papers? It is hard to provide a concrete answer, I think, it more of a symbolic move along with one with clear but somewhat inchoate consequences. Same here. There is lots of coverage on the matter as touched upon above (see also, Democracy Now!) that provides the breadth of the material covered and the possible consequences. But, two important functions are to provide a more concrete sense of what is going on (use of certain incidents, events and so forth as compared to general themes) and to serve as a continuing reminder of them. The people "in the know" might be aware, but how it is covered is important. It is like any problem: sometimes, we can in effect accept it as a given, something we rather not really think about.

The resources provided, even if it is unclear how many people will wade into them, is therefore important. As to the danger of unregulated leaks, that is a concern, but it is one that will result in any case in the modern landscape. And, to the degree Wikileaks wants to be taken seriously -- and this seems to be true -- as someone to be taken seriously, some "due diligence" will be done. If leaks will occur, some sort of medium -- even one rather free form -- is likely better than nothing.

And, lest we forget, the recent document drop was made to major publications, who can choose what to do with them. As with the original Pentagon Papers, their actions are important though. Daniel Ellsberg tried to get the attention of Congress before releasing things to the media. These days, there is a question if the media is doing their "due diligence."

We're Wrong, but don't dare get mad at us!

This is f-ed up. The Mets later won because an umpire (again) blew a call. So, I guess there is some cosmic balance and all, but GIVE ME A BREAK. Why the hell are you suspending him for a game? What stupidity. Why not suspend one of these moronic umpires?

Santana Saves Mets From Another Sweep

[Let me re-write this to expand on the subjects and television from tonight.]

Sports: Well, more accurately, the Mets yet again only won the game he started. They almost blew a game earlier, but the umpire felt they deserved something back, and in a messy season for umpiring, the Mets benefited. Not to worry, in another game, a changed call (the second base umpire saying a person was hit by a pitch, leading the home plate umpire to overturn his call -- Manuel was quite pissed and got himself tossed; the inning/game went downhill from there). Anyways, the Mets aren't hitting, losing today 1-0. It's too painful to watch, but who's really surprised?

Television: I got the second set of episodes of the British series William and Mary, briefly referenced earlier, from Netflix. A bad year of movies sort of continuing (maybe, it's just me?) into 2010 meant that it was easier to watch the few movies I wanted to see on DVD or directly online via Netflix or some other service. [And, a few of the movies I did see, such as Creation, were disappointments.] For instance, I saw one lesser movie directly through Fios pay-per-view. TiMER was already available via that route while it still was in the movies (or a week or so gone), but even cheaper to wait a month or so longer for Netflix.

I am also watching the 4th season of the show Doc Martin via Netflix, the first three available on IMDB. I already mentioned that the female lead of that series led me to two British police shows; the male lead led me to William and Mary. It is a romantic comedy/drama (more drama really) about an undertaker and midwife who meet and fall in love via a dating service. Nice balance there; also the leads are no movie stars in the looks department, though she's cute (but has those bad British/Scottish teeth). His wife died in a car crash, but he didn't really love her; she found out her ex (black) was an ass. His first experience leads him to be quite passionate about doing it right this time around.

As remarks over at IMDB and Amazon note, the show is well written and the leads charm you by not being stereotypes but well rounded people. Each really can have their own show, her dealing with various working class births, he funerals with a deft touch, even if he never wanted to get into the business. Her mother is an annoying character, though she is a bit less hard to take in the second set of four episodes (three seasons, six apiece, but the last is not available in the U.S.). The second set of episodes are something of a downer -- dealing with both her ex and mother while his mother (older) dies -- but the leads hold our interest.

I would add a bit about Drop Dead Diva tonight -- in one case, a chimp was allowed to do sign language to get a sense of whose custody he wishes to stay in and not only was one of the two people allowed to do the signing, but no independent sign language person was available. Unless the other person knew sign, which was not evident, not only could the chimp be picking up on cues, but who's to know if his signs were accurately translated? That is pretty lame, even for a show that is a bit lax on the legal end.

The actual idea that chimps can be treated as a person in some contexts and the emotional connection we can have with them was a nice subplot. OTOH, Leelee Sobieski as "Deb's" birth sister was pretty stiff, which unfortunately for her is not a total surprise. The actual case was okay. Her guardian angel again was an amusing presence while still adding some serious words.

Army Wives, however, was overall a good episode. One aspect that it does pretty well is to show the complications of married life and the nature of the characters' relationships. I'm not sure if that is done enough on various shows. I like that about William and Mary too, including aspects that arise from their situation, though it does rush through their relationship a bit. In fact, I do wish more focus would have been put on their relationship in episodes 5-8 than on the drama around them.

Book: And, a bit more about Perchance to Dream, the book referenced earlier. The first book introduced us to Beatrice Shakespeare Smith, a seventeen year old apparent orphan who lived in an enchanted theater where actors (and four fairies) are the actual characters they play, including Ophelia from Hamlet. The author, a theater lover and writer of plays, provides a rich and often amusing (with a serious undertone) universe here in Eyes Like Stars. It ends with her finding out who her mother is and going out into the real world to find her father and her kidnapped potential love interest, the pirate Nate.

She also finds out her power to write plays and have them come true ... in a fashion. I add that bit because in the sequel, B. is not quite able to harness this power, perhaps because of her tendency to write poetic lines that could have more than one meaning. Anyways, this book is largely about a journey, but it does not really take time to have use get a sense of it. In fact, more than once, B. uses her abilities to try to rush it along, and other times something else stops certain scenes from continuing. This might be somewhat intentional (the flashes a sort of "dream," dreams often hazy and abrupt in some fashion), but it got annoying and hurt the flow of the book. It also made us unable to get to know new characters.

We didn't even get the same about of emphasis on the few returning favorites, including her fairy friends, Ariel (the mercurial free-spirited sprite that loves her) or of course Nate (mainly off screen). We meet her dad, but he doesn't really come off that well, even though he is type of mythical bird-man creature. The best part, if not free from bother, is the final part. The charm actually is that the book lets the story play out, the exposition grabbing us more than more disjointed earlier scenes, written in a bit too precious of a style.

I do wonder if the author's comfort with the theater world made it something of the "write what you know" variety, while this was a tougher task. The first also dealt with her growing-up, her heart split over two guys and other personal issues, but did so in the midst of a better story. I thought the bit where we find out she loves both of them equally (akin to a coin landing on its side) a bit dubious. Her final escape also seemed a bit of a deus ex machina. But, overall, it was that the first 2/3 of the book was too much of a trudge, a potential good account of her journey and who she met on it not given a chance to breath.

I hope the final chapter of the trequel works better.

Perchance To Dream

Perchance a better sequel to Eyes Like Stars, a charming fantasy about a teenage girl and an enchanted theater? Maybe the author is more comfortable with that milieu; this more disjointed and no way as fun, especially character-wise. Okay, but ... one more part left.

If you can't hit, at least get rid of Perez

Who would have thought those would be the last hits and runs the Mets would get for the final seven innings? Anyone who watched Wednesday’s game.

Perez came into this extra inning game too, got out of another jam, but this time lost it the next inning. Same basic result, just more chances blown. The hitters are at fault, but really, isn't it rubbing our noses in it having him in there losing games?

Braceface

I forgot all about Friday Night Lights last night, but Wizards was okay. Besides, I want to watch the show from the beginning and IMDB has the episode. One more overload: new sources of video. Many episodes, e.g., of the charming cartoon Braceface on YouTube.

Show Me Love (F-ing Amal)

The charm of this Swedish film is that so many characters, including the adults, are sympathetic in various respects. You care about them in part because they seem real. This adds to the main story: two teens who find they like each other with a complication involved.

At least SOMEONE Seems Truly Upset

"This is when it hits home. This is when those men in the locker room realize this is for real, we're awful," Ojeda said. "We're going through the motions. We face the worst bullpen in history and manage one hit."

Compare this to the prattling of the analysts during the game, including [edited] talking about non-Mets incident, apparently flubbing the part about the umps not letting him know and leaving out the disagreement over the rule. Blah blah as the Mets suck.

Kagan Nomination (Part I)

And Also: Just to toss it in, someone (not just those over at Volokh Conspiracy) used the Kagan nomination to raise some usual canard about the health insurance law. I put in my .02 here.

[Update: Sen. Graham was correctly praised for his support of Kagan, including his honest account that he rather someone else be nominated, but given the limited role of advise/consent (taking a slam at Sen. Obama here, which is less defensible), he will vote for her confirmation. But, a tad gratuitously, he did say Goodwin Liu did not meet his approval, making him out to be some sort of radical. More of same. If those with progressive views cannot be appointed to lower courts under Democrats, I guess it's perfectly fine for Democrats to oppose conservatives like Miguel Estrada.]

It is interesting how various bits of information are often not well known or emphasized. For instance, how the military recruitment policy at Harvard was not somehow solely targeted at the military, but that the military was treated just the same as any other group.

But, this tidbit really is amusing, giving all the Estrada love going on. Sen. Graham in fact read a bit from the letter he had Kagan write in support of Estrada, a top conservative that Bush nominated for the appellate bench but who was blocked by the Democrats. Kagan supported him then too -- they were pals from law school. Ironically:

The post Estrada hope[d] to fill is vacant because Republicans blocked action on two Clinton picks for the court: Washington attorney Allen Snyder and Harvard law professor Elena Kagan.

Yes, President Clinton nominated Kagan for the appellate bench in '99, but she was never given a hearing. Synder was, but his nominated languished too, even given (to quote Wikipedia) "his support from conservatives like Rehnquist, Sen. John Warner, and former appeals court judge Robert Bork." Estrada, as was the case of others, had a shot because of Republican obstruction of an "up or down" vote.*

Anyway, it's a shame. She later became Dean and all, but she would have had more experience if she was confirmed. It is doubtful she would have lost an up/down vote, since that rarely happens. Republicans (including Sen. Hatch) are partially against her for lack of experience. They really have themselves to blame there.

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* It is shocking really that Estrada was blocked. Not the other two, of course, since they aren't Republicans. Sorry, that's wrong. I don't want to be called "partisan."

Appointments Not Lack of T.V. Is The Problem, Arlen

I discussed why the Prop 8 trial should have been available for wider viewing here and overall think broadcasting (including audio alone) Supreme Court oral arguments and judgment days is a fine idea. But, Sen. Specter expects a bit too much. More on the thread here.

Did North Korea Remember This?

Via Netflix, I watched a National Geographic special with Lisa Ling, whose sister was later detained by the same government that in effect was the subject of the piece. It used a humanitarian visit by an eye doctor to (natch) give us a vision of the closed society.

Shirley Sherrod Ponders a Lawsuit

Turley explains some of the law, while GG thinks it might lead to interesting discovery. I lean toward this more dubious perspective. Sounds like she might do it, but I fear it might make him into a martyr or backfire. Meanwhile, she is part of this major lawsuit.

Fun Late Viewing For Mets Fans

Ollie Perez made an appearance, a fairly typical stress inducing one, if in relief this time. But, it was Nieve who gave up the ghost deep in the night, the Mets' plummet continuing, this time being swept by the Diamondbacks. The postgame analysis was on point: this is pathetic.

Merchants of Doubt: How a Handful of Scientists Obscured the Truth on Issues from Tobacco Smoke to Global Warming

Exhaustively researched and documented, it explains how over the past several decades mercenary scientists have partnered with tobacco companies and chemical corporations to help them convince the public that their products are safe – even when solid science proves otherwise.

Important subject, a bit of a trudge at times.

Missing the Point Alert

And Also: Okay, you [Tom Vilsack] were wrong on Shirley Sherrod ... buck up, admit it, and beg her to return. Her story (see the whole video or the old couple defending her) is Obama-worthy sentimental. People make mistakes; the non-wankers make them right.

[Update: I would add that the idea this law forces us to think about touchy issues is a perspective as curious as saying smearing Shirley Sherrod -- the video by the way is truly powerful as is the old farmers' appearance on CNN -- forces us to think about racism. Victimization of others is not the only way for us to be educated, is it? .... Done. Glad it was such a "teachable moment" for you btw.]

Sherry F. Colb is not someone feminists and others might fear of not "getting it," but her recent essay "An Oklahoma Abortion Law Raises New and Different Rights Questions" raises just such red flags. The essay concerns an Oklahoma law that "prevents a patient from suing her doctor for failing to reveal the presence of a fetal abnormality." Prof. Colb argues that this is a fairly atypical abortion restriction, since such laws "generally make it more difficult for a pregnant woman who wants an abortion to get one in the time, place, and manner of her choosing." In particular:

In other words, the actual Oklahoma law -- and the hypothetical law that bans outright the disclosure of fetal abnormalities -- do not have the effect of pressuring or forcing a pregnant woman to continue a pregnancy against her will. What these laws do, instead, is to limit the options of women who want to remain pregnant, but only on the condition that their babies will be born normal.

This is a very curious way of looking at it in my eyes. A woman who thinks about having an abortion desires to be informed of all relevant information necessary to determine if the right is best for her. If important information -- such as perhaps the child is not her husband's -- is kept from her, she is in effect a victim of a fraud. It is essential in any number of cases to know all the details. Yes, she is not "forced" to do anything here -- she is potentially tricked into it! This is fundamentally wrong.

The essay cites Bodily Integrity and Offspring Selection interests, but does so in too narrow ways. The first is not merely a negative matter of "not" having a child in various cases, but a matter of complete control and knowledge of one's body and health. The second also includes knowing all about the offspring in question, even if there is a fear that such knowledge will lead to "wrong" choices. Colb's essay also clearly considers "trusting the woman" as a matter of debate. After all, that might mean in a few cases, women will abort a girl or a potential homosexual. But, so what? Freedom of religion includes the freedom to believe and promote hate. Why is this different? Is a woman's body something so open to compromise?

As is sometimes the case with artificial thought experiments, the essay ignores important issues for effect. A possible legitimate reason for such a law is offered this way:

If one were to consider the fetus the equal of a newborn baby, then it would seem to follow that a woman considering whether or not to remain pregnant generally would not be entitled to find out that her fetus suffers from an anomaly. In other words, once a baby is at issue, the woman can no longer claim the right to obtain information that would facilitate a decision to kill the baby because he suffers from Down Syndrome or some other anomaly.

How about if she has to prepare herself emotionally and otherwise to deal with the baby's birth defect? Again, for some reason, the author does not find this quite relevant matter a reason for requiring the doctor to provide the information. Since it concerns something inside of her, I would think that alone would warrant the information be told, even if the girl/woman is not allowed to abort. This seems to be the idea: it is a backhanded way to try to limit certain types of abortions (sex specific abortions are also cited). This seems patently unconstitutional but again even in respect to the sex of the child, it would be useful to know in various cases. But, in this context, several concerns -- including economic and preparing to care for the special needs of the child -- arise.

Finally, the essay doesn't raise the problems with a doctor having the right to hold back information that would be quite important to the patient (including those who don't want to abortion) surely out of some dubious criteria. What cases would this arise? I reckon too: some sort of negligence where the information is not provided out of neutral action or because of moral beliefs of the medical people involved. The emotional health of the patient being negatively affected alone suggests the two are really interlocked. The essay however assumes the law makes us think:

For someone who believes that a fetus is morally distinct from a baby, and that the right to abortion is at least in part about deciding which children one wants to have or avoid having, the law requires us to confront our own prejudices and to ask ourselves whether a genetically-impaired future is truly worse than no future at all.

Because we do not have to face up to that fact now?! Prof. Colb's musings reminds me of Justice Ginsburg's dissent in Gonzales v. Carhart:

The solution the Court approves, then, is not to require doctors to inform women, accurately and adequately, of the different procedures and their attendant risks.

Colb ponders a case for hiding certain information from girls and women because they might use it unwisely, even though the information is important for those who and who do not have abortions. This is to me a horrible result, robbing someone of bodily autonomy and the right to make their own moral choices. It also opens up the possibility of abuse of power by the medical profession, akin to pharmacists denial morning after pills. And, doing so based on limited discussion and ignoring that the issue here is far from novel. Women, for instance, have to determine complex moral decisions on "worth" in a myriad of cases, including poverty, domestic and sexual abuse, teen pregnancy and so forth.

Why is this such a novel situation? Why should we imagine it is just to withhold fundamental information whose withholding cannot only inhibit full choice but negatively affect even those who wouldn't abort even with said information? Colb imagines:

This question [cited above] is not an easy one to answer, but the Oklahoma statute effectively raises it, without confounding the issue with bodily-integrity concerns in the way that a direct restriction on abortions for "bad reasons" would. Thus, whether intentionally or not, this law cleanly presents the questions whether and when there is a right to discriminate on the basis of disability in the unique context of procreation.

That is, somehow, restricting information without liability is somehow not a "bad reason" since it corrupts the decision-making involved in a somewhat nuanced fashion. I don't think so. The result is that "bodily integrity concerns" are raised, making the law much less "clean." As to "a right to discriminate," yes, when dealing with intimate matters, you can do that. For instance, if you don't want to date a person of the opposite race or sex, it is your right to do so. Where is the stopping point here? Colb is somewhat consistent. A past essay suggested maybe death penalty for rape is legitimate, since it protects against sexual violence.

The dangers of a one track mind.

Tuesday TV

Penguins of Madagascar was funny yesterday, including "Private" once playing miniature golf out West. Rachel Maddow covered the Sherrod story well, but elsewhere didn't note Iroquois also are U.S. citizens. Covert Affairs, however, didn't work for me. Turned it off.

Kagan: Judiciary Committee Vote (13-6)

Fairly standard, but Sen. Graham (sole R yea) took the eloquent approach (if again taking a swipe at Sen. Obama for making his votes too personal) and Specter voiced various quite valid concerns (see also, here). Sen. Kyl went all out in opposition. Another summary.

Jen McCreight Strikes Again!

Get a F-ing Starter Please

Pushing Pelfrey back to pitch against the Ds didn't help much; result: an embarrassing loss. The Mets are falling into a hole here and need another starter. If they don't get one while Perez comes back to taunt fans, the earlier signs of life will be seen as some sort of sick joke.

Obama's War On Science?

I did not really agree with a conservative response to an article regarding scientists having problems with Obama, particularly its sense of equivalence with the Bush years. Chris Mooney, who should know, provides a concerned but still tempered perspective here.

Since the Show Is Usually In Such Good Taste ...

On one level the “Family Guy” producers understand that some of their jokes — a scene in which Lois is impregnated by Peruvian natives wielding blow-dart guns; a lengthy Warner Brothers parody in which Peter stalks Lois with an Acme Miscarriage Kit — may not have treated the abortion debate with proper gravity.

Bored of the show, but this (with reading assignment!) sounds good.

Deja Vu With A Twist

Three chances to stand up with the big boys (Reds, Braves and Giants), three times when only Santana starts a winning game. This time two other starters pitched well (the third not so much, still don't want Perez back) and it took a blown call to salvage the game.

William and Mary

The Blockbuster near me closed up a few years back and these days it doesn't surprise me: Internet, multiple channels, Netflix etc. providing stuff like this, a charming romance with an edge. Often instantly. Ready access in video stores has a much narrower value.

Stevens Gone, but Supremes Still Active

5-3 action by Supremes upheld broad discretion in detainee cases including:

In Mohammed’s case, District Judge Kessler at one point ordered a high government official, Daniel Fried, to appear in her courtroom and, under oath, submit to questioning about his assurances that detainees would not be mistreated in countries to which they were sent. That part of her order, too, was summarily reversed by the Circuit Court.

Cf. Souter's concurrence here. How would Kagan rule? Who knows?

"Bush Aide Says Some C.I.A. Methods Unauthorized" (But So What?)

Good article; let's not forget this:

A five-year investigation by the Justice Department’s ethics office sharply criticized the memorandums and found, in a report disclosed this year, that the two men had committed “professional misconduct.” But that finding was rejected by David Margolis, a career lawyer at the Justice Department who made a final ruling on the ethics review. Mr. Margolis said the work of Judge Bybee and Mr. Yoo had “significant flaws,” but said that any assessment should consider the climate of fear and urgency after the Sept. 11, 2001, attacks.

Well, that makes it okay. "Unauthorized" also sounds like "illegal."

"The many challenges of Second Amendment jurisprudence"

And Also: The Catholic Church does something right, but then screws it up by clouding the issue with something else and not doing enough. This sort of thing is why people can't take them as serious people.

Various Second Amendment issues are already being decided by the lower courts:

Steven Skoien has two convictions for “misdemeanor crime[s] of domestic violence” and therefore is forbidden to carry firearms in or affecting interstate commerce. 18 U.S.C. §922(g)(9). Wisconsin informed Skoien about this rule; he signed an acknowledgment of the firearms disability.

The provision was upheld by a 2-1 vote, the dissent wishing to remand the issue to the district court basically for more factual analysis and a determination if non-felons are truly not protected. The majority held that this statute fit within one of the exceptions cited by the Supreme Court in Heller as a type of provision that the ruling should not be assumed to override. That is, gun ownership by those convicted of a crime, or more specifically, a class of people specifically likely to cause "armed mayhem." Cf. Martha Stewart with this offender.

Heller's citation of "felons" and other categories in conclusionary dicta however doesn't conclusively decide the issue. And, the number of non-violent felonies alone suggest some need for clarity. Should some tax offender be denied the right to have a firearm at home for self defense? OTOH, released felons are denied voting and other rights, including having less privacy from home visits and so forth. How about someone who was in some sort of mental institution some time back for some eating disorder? Are they now mentally ill and able to be denied a right to own a firearm? What should be the basis of determining such things?

For the category where limitations were left open, factual data is relevant:

Both logic and data establish a substantial relation between §922(g)(9) and this objective.

And, the ruling cited such data. The dissent accepted that up to a point, except where the 2A categorically bars that -- for instance, if non-felons are protected, the choice is made constitutionally, not by use of scientific data. One problem, inviting some questionable rulings, is that the Supreme Court did not clarify how the lower courts should rule in this area. A historically commonly accepted firearm at home is one thing, but there are lots of situations where the answer is unclear. As with other areas, the rulings are facially broad, but in many ways quite shallow.

Ditto giving rights to detainees in Gitmo, but leaving to lower courts the power to determine that exactly that means, often without too many people paying much attention.

"Specter: 'Kagan did just enough to win my vote' "

It may be understandable that she said little after White House coaching and the continuing success of stonewalling nominees. But it is regrettable.

Sen. Specter is right, but it takes two to tango -- the senators accepted her playing the game and his grumpiness didn't really change matters. Her nomination was safe as were her hearings.

Stuart Taylor Gets It Sorta Right

Stuart Taylor, a conservative leaning angry sort, points to the subjective nature of "originalism" in "Supreme immodesty: Why the justices play politics." As I noted here, the op-ed leaves various things to be desired, but I guess it sorta helps as a whole.

Finally

The outfield was made up of players from bad teams, but a good play and poor baserunning in the ninth kept the NL from blowing it again. Meanwhile, Covert Affairs started in unbelievable fashion, but the fun lead held up her end. Oh, a V. Plame served as a tech adviser.

TiMER (and Non-Partisan War On Science?)

A charming small film of the type chain theaters should offer. It concerns a family's experiences in an age where you can install a timer to determine exactly when true love has arrived. Meanwhile, as "Joe" noted here, not convincing. Lame really. Tiresome.

Supreme Court (and Kagan) Watch

Tom Goldstein has been a cheerleader, a bit too much of one, on Kagan. All the same, he provided a lot of good material, and his defense/analysis on the abortion controversy is worth reading. Meanwhile, Sotomayor is writing a biography.

Sunday on TV

Mets end 1/2 by losing two home series, if against top teams, Santana winning both lone wins. Drop Dead Diva and Army Wives were good episodes. Good Luck Charlie decent, but we just had a younger brother/girl episode. Other stuff amusing.

Corporations

In one reply to the DOMA rulings, someone noted that the judge was wrong to say that there were no classes between "persons," pointing to corporations. But, the quote, and the article in question quotes correctly to show this, concerns "citizens." Corporations don't have federal constitutional rights as citizens, except for purposes of diversity in court. But, we can address the wider point.*

As to corporations, corporate personhood has roots in the Middle Ages, it recognized that for legal purposes, recognizing them as persons for "some" purposes has various benefits. Thus, a national corporation can work out its contracts and so forth in each state courts as one entity, for instance, or the NYT can defend its press rights as one entity.

It is not "personhood" of corporations, again of a special type with only limited rights, that caused problems, but the lack of proper regulation as large business corporations expanded their economic powers. I don't know if many fear small corporations or even non-profits (though many don't like their causes), which are what most 'corporate persons' are.

Without violating any rights, corporations can be regulated and restricted; corporations, for instance, can only be allowed to perform limited duties, have short life spans, have high taxes, be required to inform and get the consent of stockholders before doing things like supporting a candidate via an ad, be subject to lots of regulations that restricts its power or even not be chartered if deemed dangerous to the public good.

Regulation is much more likely than doing away with them; and if we do away with them without properly regulating them, the BPs of the world will continue to be dangerous, since their power will remain in lots of ways, just as there are various dangerous human people who are not restrained.

I can definitely respect those who muckrake against corporate power, but these attacks against corporate personhood to me seem pretty misguided. It is not really the way to address what they are worried about in most cases, while also not likely to happen any time soon.

---

* The whole quote, cited in this context in Romer v. Evans, is worth repeating:

The white race deems itself to be the dominant race in this country. And so it is in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time if it remains true to its great heritage and holds fast to the principles of constitutional liberty. But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved. It is therefore to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a State to regulate the enjoyment by citizens of their civil rights solely upon the basis of race.

Not being "citizens," corporations can be put in another class, again, having limited rights ... some rhetoric notwithstanding.

Sunday Thoughts

For some reason, the search function on the Slate fray only sends me to comments I made last year or before,* but did find this old post concerning "dignity" and how we determine the meaning of various constitutional provisions. This is appropriate as well since I just received my hard copy of It Is a Constitution We Are Expounding: Collected Writings on Interpreting Our Founding Document, though it is also available free online (I obtained it via Amazon; ACS doesn't provide a means to purchase it).

A interesting article on squirrels. And, one on Justice Sotomayor's first term. Again, I liked the choice and overall I was not disappointed. I hope Kagan makes my doubts about her look mistaken, but it is not that I think she will be bad. I just fear that we could have done better. Not alone -- repeatedly, people have noted she would have made a great third choice. But, so be it.

The British Muslim lawyer is back over at Balkanization,** slumming by debating with the resident Tea Party provocateur (the main reason many participants don't allow comments), adding this eloquent discussion of charity:

Islam has one of the earliest versions of capital redistribution of wealth. It is called Zakaat and it is compulsory for every Muslim.

The tax is levied as 1/40th per annum of one’s capital, excluding such items as one’s primary home, car and professional tools. In Islamic states, Zaakat is paid to a Zaakat Authority which uses it for charitable purposes.

Individual charity is, of course, also encouraged, preferably in secret. Among relevant hadith (sayings of the Prophet):-

"Charity is a necessity for every Muslim." He was asked: "What if a person has nothing?" The Prophet replied: "He should work with his own hands for his benefit and then give something out of such earnings in charity." The Companions of the Prophet asked: "What if he is not able to work?" The Prophet said: "He should help the poor and needy." The Companions further asked: "What if he cannot do even that?" The Prophet said: "He should urge others to do good." The Companions said: "What if he lacks that also?" The Prophet said: "He should check himself from doing evil. That is also an act of charity."

Further, pious Muslims have since the earliest times endowed hospitals and institutions of learning by the establishment of waqfs or trusts. In Islamic jurisprudence waqf is the detention of specific thing in the ownership of waqif and the devoting of its profit or products "in charity of for the relief of the poor or other good objects"

By the 11th century, every Islamic city had hospitals supported by waqf trusts as well as schools and higher educational institutes. Many such trusts exist today.

Bart should remember that an important principle of Islamic theology is that everything belongs to God, and that wealth is therefore held by human beings in trust.

Love that summary on charity. Islam is a sadly misunderstood religion, one with a fascinating rich history, including in the area of social welfare. As with Christianity, there are various aspects that -- especially if taken literally -- are problematic. But, again, that is the case for Christianity and most religions. And, the practices often are more cultural than mandated by religion. This is so by full length covering of women, which is clearly not required.

I have read some about Islam, but as with various other things, it is a subject that warrants further reading. For instance, one of these days, I need to read a good summary of the Koran. I read one of those "little" books that summarize various topics, and it was somewhat helpful, but it covered so much ground. I was more interested in the Koran itself, like various books analyze the Bible. Oh well. I have a book on reserve about Mormons and polygamy, so there's that too.

[One comment after posting this ... to reference a reply to the quoted comment, religion was deemed essential by many Framers to a good public policy because it is a way the public to be motivated to be good citizens. Personal morality overall can serve as a means toward good public policy without unreasonable mixture of church and state being the result.]

On the t.v. front, I caught some of Secret Diary of a Call Girl last night on Showtime. Seems okay -- not a bad time passer, not too deep really. Saw an ad for Weeds -- that show bored me. I wanted to like it, since I like the lead, but didn't care for its style. I guess I only like her when she plays more troubled characters, like two plays I watched her in some time back. My new Fios connection does provide more chance for such adult entertainment, like the soft porn with plot Co-Ed Confidential. Still find television more dreary than in the past ... I think it's partially since so many shows these days try to be 'deep' in some way.

Or, maybe it's just that with the Internet, I'm done after watching a different type of "small" screen. OTOH, that too provides another route to watch t.v. programs.

---

* Back in the day, I also received email alerts to responses of my posts, something that can be done in respect to various blogs, IMDB comments and so forth. It seems this still is done for many people and there is a box to check off. All the same, for some reason, I do not get alerts. It's annoying, since I feel an urge to constantly check to see if I get responses (and notice the view count, which is a mixed blessing), which would not be as necessary if the old system was in place.

** Prof. Levinson is one of the few who do provide comments. Levinson seems like a sad soul -- clearly gentle and polite, but quite honestly horrified and disgusted at the state of things. And, it's fine that he has a place to put forth his cries from the heart, but as many tell him, he must realize they are at times exaggerated and misguided. This includes he dream of a major upheaval of the Constitution, which people try to tell him is of the "watch what you wish for" variety.

As to comments in general, Prof. Balkin's posts alone show the problem with not allowing them. He puts forth quite open to criticize material, at times with some sarcasm, which is okay, but blogging is valuable in part because people like him can get feedback. A blog like TPM can limit comments since it has a large news component; a blog mainly for opinion is less ideal in that respect.

I basically talk to myself here, but I'm not a law professor who writes for a broad audience, someone who should welcome feedback, even if it requires a bit of regulation of a troll or two.

Mets Fan After Last Two Sh**** Games?

Way to end First Half on a bad note: sad series loss to Braves.

Kagan Answers Some More

Nothing too surprising, including some empty answers now that she is the one in the dock, but the simple "no" to any personal problems with the death penalty is a bit sad. You can have some and still think its constitutional. Burger did. Meanwhile, Sotomayor enjoys Chinese.

Friday Night Lights Sampled

I never saw this show, though discussions over at Slate rave about its skill, including concerning sexual matters. Watched tonight's episode, which was very good; it has shades of Once And Again intelligent adult/teen drama. The teen abortion subplot was well done, the complexities of the situation handled in a realistic fashion.

Section 3 of DOMA Struck Down

[I almost forgot -- Hawaii is what started us down this road. Showing the stupidity of the measure, a state court ruling was overturned by an amendment, giving the state legislature power over same sex marriage. A legislative attempt to protect civil unions was just vetoed by a conservative leaning governor, rightly ridiculed last night by Keith Olbermann in a more substantive than usual "worst person" citation. Meanwhile, a timely film to watch while these things run their course.]

While we wait for the Prop 8 case, a pair of important cases out of Massachusetts were decided by a federal district judge, concerning an often forgotten aspect of DOMA:

U.S. District Court Judge Joseph Tauro, appointed to the federal bench in 1972, ruled this afternoon in Gill v. Office of Personnel Management that Section 3 of the Defense of Marriage Act violates the equal protection of the laws guaranteed by the Due Process Clause of the Fifth Amendment to the U.S. Constitution. A companion decision in Massachusetts v. U.S. Dep't of Health and Human Services also was issued, with Tauro finding that DOMA also violates the Tenth Amendment and the Spending Clause of the Constitution.

As one of the rulings noted on study determined that there are "1,138 federal laws tied benefits, protections, rights, or responsibilities to marital status," benefits that will not be secured by state action alone, be it "marriage" or "civil union." [GAO report] The issue in one case were federal health benefits, social security benefits and the ability to file taxes jointly.

The Obama Administration had a tricky time with these cases, since he is after all on record being against DOMA, and in support of broad civil union benefits for same sex couples. For instance, the court here says that the rationales stated by Congress were rejected:

(1) encouraging responsible procreation and child-bearing, (2) defending and nurturing the institution of traditional heterosexual marriage, (3) defending traditional notions of morality, and (4) preserving scarce resources

Reasonably so, since the arguments are shown here to be lame, as they have been [but as with making fun of a lesbian's looks or assume some neutral clothing regulation is involved, they keep on being tossed around as if they are not; see some ugly comments to this article] repeatedly. This includes the fact that "same-sex marriages by all fifty states would actually result in a net increase in federal revenue." The Administration was left with defending the "status quo." But, the judge will not let them get away with that either, particularly:

Importantly, the passage of DOMA marks the first time that the federal government has ever attempted to legislatively mandate a uniform federal definition of marriage–or any other core concept of domestic relations, for that matter.

Marriage changed greatly over the years in a great number of ways, and in no way consistently, but such a federal limitation was not put in place to "slow things down," even when the changes came -- as is the case here, since same sex marriage is available in the U.S. both via court and legislative action -- via court process. In fact, in a companion case -- brought by the state -- the Tenth Amendment was invoked. In the MA case, the state sued to obtain "spousal" federal veteran burial funds and health related funds [millions of dollars in total] blocked by DOMA.

[As I note here, if the feds want to retain the status quo and not get bogged down in the conflict, this is a somewhat irrational way of doing so, given it goes out of the way to do just that. Meanwhile, here's a good analysis of the rulings from a new favorite blog. Some time ago, I referenced a tidbit about "general" laws that was not addressed here, but seems to me relevant here.]

The court holds that the fund limitation violations equal protection. But, likewise, marriage is a specifically state function, and the federal government could not single out one type of marriage for disfavor in this fashion. Interracial marriage was not back in the day, and history suggests doing so here would be unique as well. The judge was appointed by Nixon, so such federalism and history based arguments very well might be more appealing to him. Don't know how they will fare on review, but it does underline there is a conservative aspect to this case.

DOMA was specifically set in place to stop the mandated recognition of out of state same sex marriages, but a troubling rider was brought with it -- even if a state legislature (as has occurred a few times already, putting aside D.C.) by majority rule recognizes same sex marriage, the federal government will single out them for denial of over 1000 benefits. Meanwhile, first cousins can marry and in theory (as actually occurred once) a religiously based marriage between an uncle and niece can be allowed as well. Even race -- including in the 1950s -- did not lead to that animus.

This ruling, which might or might not stand, is justified on both equal protection and federalism grounds. Though the reasoning can be applied to overturn DOMA completely, the other aspect -- letting states not recognize out of state marriages -- is at least less irrational on federalism grounds. The rulings have a strong federalism component, so are not completely applicable to a state same sex case (or marriages in federal territories), where control over marriage is somewhat different.

And, now for the Prop 8 case ...

[And, for the New Republic-like warning: Jack Balkin warns liberals to not drink the kool-aid of these rulings. But, he himself tries to prove too much. The rulings do not say ALL federal regulation of marriage is a problem; they are saying that selectively barring this category of marriage rights is. Same with the Tenth Amendment -- the rulings are not saying all funding is a problem, those with a strong equal protection problem are all the same. Unpopular or not.

As to "way ahead," how does Jack know that as to having states determine on their own what marriage is and not be selectively burdened in regard to veteran's benefits or whatever is a problem? The case doesn't authorize same sex marriage. It supports local option, one with implications that many probably have not really considered too much. And, rulings of this sort -- like in Vermont et. al. -- tend to nudge people to accept things. Meanwhile, more time will pass in appeals and more pressure will be put toward legislative change DOMA.

Sorry, don't buy it. Nor does a colleague, at least half-way. Not that I can tell him (or his colleague!), since because of a troll or two, he blocked off comments like a weasel.]

Fiction Thumbnails

The film Agora has already led me to read more about the main character. Now, I saw Tesis (Thesis), another film by the writer/director involved. It is a Spanish film from the 1990s concerning a student getting a bit too close to her subject matter while doing a thesis on violence in film. It starts well and has a great atmosphere with good performances, though one character is a bit over the top. I did think it went on a bit too long and ended in a bit lame fashion. This tempered my enjoyment, but as a whole, it was a good film.

Winesburg, Ohio is a somewhat interrelated collection of short stories written by Sherwood Anderson, written in 1919, but talking about a small Midwestern town in the 1890s. Connected by young reporter, George, the town is filled with repressed unhappy souls, generally seeking for connections (often erotically tinged) that they cannot obtain. I'm not sure if there is any one person in the book truly happy. The stories are not of equal interest, but as a whole, I enjoyed them. A nice find among the "great works" of literature.

I tried to watch the second series/season of The Vice, but found the plots inferior, the characters not being used in good stead. The first set of episodes made me care too much about them to be able to watch them be poorly handled in such a fashion. I'm in the process of watching the third set of episodes of Doc Martin, and though earlier episodes were better (I do miss Mark), the drop-off isn't quite as bad. On the Caroline Catz front, the second set of Murder in Suburbia episodes also were pretty good.

Only the first half of The Girl With Green Eyes (so they say -- the film is B&W) since it was taped, and apparently I had accidentally set a reminder for the t.v. show Doc. This automatically changed the channel. Oh well -- a means to program two shows on different channels at once, harder to do these days, especially without DVR. The film was interesting but I'm not sure if there was enough going of for another hour (even minus commercials). Anyways, I reserved the book, which apparently is part of a trilogy. Will get back to you.

Doc was pleasant enough; it even had an unhappy aspect, a patient dying. Shows of this sort (see also, Drop Dead Diva, where she did lose a case eventually) do need a touch of unhappiness to keep them honest.

Threats To Legalized Abortion

A reference to attempts to make abortion illegal led to a reply saying it was all b.s., abortion politics really a matter of extremes on both sides shouting, while nothing really changes. The problem is not illegality, though South Dakota and a few other states (and places like Guam) might do that if given the chance (SD tried not too long ago), it is a myriad of limitations that affect many girls and women:

1. Some states having one abortion clinic

2. People in the military, prisons and so forth not being able to get access

3. Lack of funding, even for those who require expensive abortions for health or in respect to a dead fetus inside of them (or one that won't survive birth)

4. Teen notification/consent laws that provide judicial outs to deal with anti-abortion parents via some complex obstacle courses, sometimes infused with religious teaching

5. Limits on a particular procedure that for a few women might be needed to protect their health and/or ability to have children in the future

6. Abortion doctors and clinics under siege, including the one the state has access to

7. Morning after pill supply being threatened, including by rape victims brought to Catholic hospitals; in fact, access to contraceptives overall is threatened, not only for minors, but via lack of coverage (while Viagra is covered)

8. Any number of abortion specific burdensome regulations to complicate and make abortions more expensive or make it a harder procedure for women, such as forced ultrasounds

9. Deprivation of funding to inner city clinics that even talk about abortion or overseas family planning where abortion is some small aspect of its services

10. Any number of non-legal issues, such as non-coverage of abortion in film/t.v., failure to note choice is not a one way street in religious faiths etc.

The net effect is that some are blocked from abortion services (e.g., waiting periods pushing abortions until its too late) but the immediate concern more often are a myriad of burdens that in any other fundamental right would be deemed truly unjust. Thus, a law that targets animal cruelty in the production of crush videos is deemed too broad,* while a myriad of burdensome regulations here are allowed. State protections and the ability to travel (and/or get funds) will mean overturning Roe won't be a total disaster, but even now, the rights that case protects are in jeopardy in numerous ways.

Attacks on those who want to do away with the protections, often based on selective religious beliefs, therefore might be somewhat exaggerated, but have a valid core.

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* Rust v. Sullivan alone underlines the First Amendment free speech aspects to this cause. Certain biased counseling rules also are not merely a matter of infringement on abortion rights, but a certain type of invasion of doctor/patient privacy involving free speech geared to a specific patient. Two parent requirements can invade familial privacy (association), particularly when one parent has custody and/or makes decisions of that sort. And, the First Amendment religious issues are readily apparent as well.

I can, but won't, provide lots of links related to each area.

More Like It

On a day when it hit a record 103 degrees in the city, Santana steamed around the bases after capping a tenacious 12-pitch at-bat with his drive off the right-field foul screen.

Given lack of run support and bullpen problems, a home run/complete game might have been the best chance for a win for Santana.

Saletan Furthers Fake Kagan Scandal Meme

And Also: Fios basically provides me lots of channels with little extra stuff to watch except for some old shows (e.g., Trapper John M.D.) and lots of late night soft porn to flip past. Oh, and other stuff that is rarely of interest. More time for online stuff?

[And Also: "JackD" over at Slate, succinctly responds to my second post: "Kagan, as a competent advocate, was simply putting an articulation to the experts that they accepted. She obviously phrased it the way she wished it phrased but they, as experts, accepted it. This process happens all the time in litigation. It is when communication meets expertise." As to Saletan, "Like too many in today's journalism, he's a tool for making the muck swirl instead of assisting in bringing clarity."]

Slate is my main base of operations respecting posts that have any real readership and the articles do have some interesting aspects, so I appreciate it, even if the new comment system has put its fray on the road to be moribund and the columnists are all all too often tools. For instance, I had posted at Kausfiles for awhile until the fact he is a total boob there (something I was told by at least one person who knows him personally) made it no longer proper to add to his page count.

Other writers, including William Saletan also of this class. Jack Shafer, for instance, spent multiple posts complaining about Bill Moyers, focusing on something he did in the 1960s and the his alleged failure to own up to it. This led to some readers to point out that Moyers is an asshole and anything he did decades later really is irrelevant. I have criticized Dahlia Lithwick as well, since Supreme Court reporting is important to me and think she too often leads with shtick instead of well rounded analysis. Saletan's tool qualities, including on abortion, has been referenced by others. This is so even if now and again he is not a boob.

A recent piece on an over decade old "scandal" involving a statement by the American College of Obstetricians and Gynecologists (ACOG) is all too standard. He says he is a pro-choice [here used given that legal choice is what matters, not the morality of the matter] but analyzes the matter in such a way akin to Lieberman caucusing with the Democrats, but going on FOX to legitimize that other side. This includes suggesting that his side should admit to how abortion is "bad" but should be legal. Since, as we all know, everyone can differentiate between the two.

If you go to the fray linked to the article, you can see my "Saletan's Emphasis Problem" post, which noted that it promoted anti-science Republican talking points (Kagan supposedly "deceived" the courts, who didn't realize an advocacy group, the ACOG, didn't have a Chinese wall between them and the political branches, underlining we should not put so much "faith" in science based organizations) and anti-choice (one person flagged the word, as if any word is really neutral here) groups (the D&X procedure a wedge issue -- also, see below).

[The replies are telling -- the cry of "partisan" with a high standard of proof while the person makes a bald statement without any of what "appears" to be the case while the other person who makes blanket statements on the other side is ignored for some reason. Failure to admit a medical decision is being made or refusal to answer a repeated comment on how part of the statement doesn't really say what the person claims it says. And, a reply that in effect says Saletan is great on this issue without responding to my extensive discussion. Oh, a few people who make sense.]

Anyway, I posted a follow-up, avoiding politics, starting with a quotation:

All of us should be embarrassed that a sentence written by a White House aide now stands enshrined in the jurisprudence of the Supreme Court, erroneously credited with scientific authorship and rigor. Kagan should be most chastened of all. She fooled the nation's highest judges. As one of them, she had better make sure they aren't fooled again.

Right after "a sentence" was cited, the Supreme Court in Stenberg v. Carthart said ... again the VERY NEXT SENTENCE:

With one exception, the federal trial courts that have heard expert evidence on the matter have reached similar factual conclusions.

The original statement spoke of the potential that the procedure would be critical for the health and life of the girl/woman involved. The final statement said it might be the best or most appropriate procedure. The original statement was based on the expertise of the group. The final statement said it in slightly different words. Where is the lack of scientific rigor? The expert testimony (the ACOG itself providing some -- again one sentence is not the reliance here*) suggests just the opposite. What "fooled" the judges? Did they rely on a sentence or the whole testimony and record provided? What should Kagan be chastened about?

It is useful to recall as Judge Posner did, that the procedure ban is:

not because the procedure kills the fetus, not because it risks worse complications for the woman than alternative procedures would do, not because it is a crueler or more painful or more disgusting method of terminating a pregnancy.

Justice Ginsburg, concurring. It should be kept in mind that the law in question banned a certain abortion procedure. It was the necessity of the procedure that was in question here. But, the abortion is separate. Even if the procedure is not used, the abortion could be performed if it is pre-viable or necessary for the health/life of the woman.

Either way, the abortion will disgust many people. I guess maybe some will say so, but is the legal alternative really less "disgusting" to many people in these cases? If so, it is so based on personal moral predictions that resting on just that is a pretty dubious reason particularly given the chance that it will endanger some woman's health or very lives. If the abortion is necessary, resting on the procedure that is less "disgusting" for the woman involved seems the most reasonable path. Either way, the statement does not say this procedure is more dangerous for the woman. Symbolism is the driving force here, and the possibility it will be a wedge issue.

The symbolism underlines the possible effect of articles like Saletan, in "liberal" publications, arguing that Kagan somehow "deceived" the courts and thus some big scandal is afoot. The organization originally said the procedure should be legal; the new phrasing (which they agreed to) seems to me just a way to state their position in a somewhat different way. As I said in my first post, the problem with editing scientific reports is not the editing per se, but illicit politically motivated change in content. Where is this here, especially given later ACOG statements? The procedure's legality was deemed "critical," and the new sentence in effect says why -- it might be the best one to use in some future case.

The bottom line is (as some comments on the article page itself note) simply not very exciting. By, using emotional laden terms, saying otherwise, WS is being a tool. This also in that the sensitive nature of the situation makes it open to mischaracterization. Is he somehow so above the fray that he doesn't realize this?

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* The opinion notes:

We cannot, however, read the American College of Obstetricians and Gynecologists panel’s qualification (that it could not “identify” a circumstance where D&X was the “only” life- or health-preserving option) as if, according to Nebraska’s argument (8), it denied the potential health-related need for D&X. That is because the College writes the following in its amici brief:

“Depending on the physician’s skill and experience, the D&X procedure can be the most appropriate abortion procedure for some women in some circumstances. D&X presents a variety of potential safety advantages over other abortion procedures used during the same gestational period. Compared to D&Es involving dismemberment, D&X involves less risk of uterine perforation or cervical laceration because it requires the physician to make fewer passes into the uterus with sharp instruments and reduces the presence of sharp fetal bone fragments that can injure the uterus and cervix. There is also considerable evidence that D&X reduces the risk of retained fetal tissue, a serious abortion complication that can cause maternal death, and that D&X reduces the incidence of a ‘free floating’ fetal head that can be difficult for a physician to grasp and remove and can thus cause maternal injury. That D&X procedures usually take less time than other abortion methods used at a comparable stage of pregnancy can also have health advantages. The shorter the procedure, the less blood loss, trauma, and exposure to anesthesia. The intuitive safety advantages of intact D&E are supported by clinical experience. Especially for women with particular health conditions, there is medical evidence that D&X may be safer than available alternatives.” Brief for American College of Obstetricians and Gynecologists et al. as Amici Curiae 21—22 (citation and footnotes omitted).

IOW, as it originally said, the procedure might be "critical" to protect the health and life of the woman. The Kagan influenced phrasing very well might more clearly state just what it was trying to say originally. Kagan probably knew that the courts don't rest on such statements alone, but expansive medical testimony and briefing of this sort.

This underlines the reduced importance as a legal matter of the edited statement, which makes Saletan's suggestion the courts were fooled in any significant fashion (if at all -- many justices in the majority worked with legislative bodies and was likely aware that this sort of thing would be shown to some political actor) plain foolish.