Blue [SF] Team Up 3-1

"It being Halloween, the Rangers hitters have come dressed as the Mets offense."

Oh, those witty NYT bloggers.

"Photograph 51"

The final book on the side panel is in honor of a play about a famous photograph and the woman behind it that I saw in previews. Very good overall, the hints of romance (with a ff of events via dramatic license) didn't quite work. But, good job and nice little theater.

Sports Quickie

Not good for NY -- Buffalo again lost in OT and the Jets slogged through a 9-0 (three after a stupid fake punt, three after a desperation 4th and long) loss after a bye. Out of first. Meanwhile, the Giants are two innings away from being up 3-1. Lee up next.

Voting Issues

And Also: The NY Mets announced its new general manager, Sandy Alderson getting a four year deal while the old GM still is being paid. The opening announcement was bland, but one hopes for the best.

A Slate article recently argued that it simply isn't that rational to think (as compared to argue, one might say) that voter fraud is a real threat to democracy. As the article noted:

And for what? The prospect of winning a few extra votes for a candidate you support simply isn't worth the risk of jail time. (This is especially true for illegal immigrants, who want to vote even if it means risking deportation, according to some anti-fraud crusaders.) And for large organizations, there are much better, safer, more efficient ways to steal an election, such as bribing an election official or tampering with voting machines. The punishment is just as harsh, but those methods require the participation of fewer people.

Another article in fact did provide reasons to be concerned about those voting machines. Some continue to worry about the snipe hunt though and unlike some snipe hunts, real harms result [see one reply by Arlington here]. One example are the real burdens that occur when stringent id laws exist. I'm with the dissenting appellate panel vote in the ultimate voter id law (a facial challenge, the controlling opinion leaving open some challenges) that reached the Supreme Court:

I believe that most of the problems with our voting system--like deceased persons or felons on registration rolls, machines that malfunction, and confusing ballots (think butterfly)--are suggestive of mismanagement, [**22] not electoral wrongdoing. And I recognize that there is, and perhaps there may always be, a fundamental tension between claims of voter fraud and fears of disenfranchisement. But Indiana's law, because it allows nothing except a passport or an Indiana ID card to prove that a potential voter is who he says he is, tips far too far in the wrong direction.

I think the dissenting votes in the Supreme Court ruling were correct as well. The Arizona voting law case that was subject to some discussion of late, particularly given Justice O'Connor (sitting as court of appeals judge) took part, deals with id questions as well. The ruling held that citizenship provision was preempted by federal law (which it held required a weaker rule) but that upheld the id aspect. This included a reference to the 24th Amendment, holding that any cost was not what "tax" meant there. It is of note that the law does NOT require photo id; two non-photo ids that appear to be fairly easy to obtain (see FN2) will do.

Over here, we simply sign in, but showing a utility bill and bank statement etc. seems acceptable, though I can understand if there was some problems in certain cases that would have to be addressed. The U.S. Supreme Court case involved a state photo id, which is quite different. When a $1.50 poll tax is not acceptable, since it was seen as a way to suppress turnout with racial implications, the costs and bother of such id (and who are most negatively affected) would seem problematic as well. If nothing else, as a general illegitimate burden on voting, such burdens including of at the creative kind, and those clearly meant to favor certain groups. As the dissenting appellate judge previous referenced noted:

Let's not beat around the bush: The Indiana voter photo ID law is a not-too-thinly-veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic.

The Supreme Court in Crawford did not treat the question as a 24th Amendment issue as such. But in another case, involving another troublesome area (felony disenfranchisement, which has improved over the last decade), the dissenting opinion noted there was some debate on the subject among the courts that handled the question. I think the matter is pretty obvious. The case itself was a tricky one: "conditioning restoration of their voting rights on payment of court-ordered victim restitution and child support obligations." One aspect: the dissent notes that a small part of the money collected has a flavor of a tax. Anyway, as one case cited noted:

While requiring payment to obtain a birth certificate is not a poll tax ․ it is a fee ․ [and] Harper makes clear that all fees that impose financial burdens on eligible citizens' right to vote, not merely poll taxes, are impermissible under federal law.

That is, when the id required costs money in some fashion, in effect you are being required to pay something by the government to vote. Of course, voting could in some fashion cost something, in some sense. A trip to the DMV might cost carfare or gas. But, actually, it very well might cost nothing, at most a stamp to send the registration or mail-in vote in. An official non-driver's id and so forth does cost money though. The Carter/Baker Commission (see Breyer's dissenting opinion in Crawford) suggesting requiring picture id, but over a span of time, those financially unable having a chance to obtain it for free. Arguably, if it's a poll tax, ability to pay isn't the issue. It's illegitimate overall.

Still, we need not be absolutist here. The principle, however, is that voting is not supposed to be a burden or requirements discriminatory. In various situations, this rule is violated. 2004 Ohio underlined various possible problems, including certain districts having sub-par machines or long lines. Bush v. Gore flagged the problem of different voting standards, though the true victims were not the plaintiff in that case. The second Slate article underlines that it is still not that clear that our voting machines provide an evenhanded counting of votes, certain machines more problematic than others.

As noted in 2004: "Voting is kind of an irrational act anyway. It’s easy to discourage people from doing it." TPM has done yeoman work reporting the partisan nature of the effort against "voter fraud," leading the way reporting it as a key issue in the firing of the Bush prosecutors. Even when a few unlikely people who are found that have broken the rules, it is basically never nefarious. Some alien thinks those on the road to citizenship can vote. A released felon isn't aware of the rules. Some tricky rule leads to a double vote or a vote in the wrong place. The token number among millions of voters underlines that using a hammer to kill a fly is liable to lead to more problems. Overall, voter suppression, direct or indirect, intentional or de facto, is the true problem.

The Supreme Court basically said that the real concern behind voter id and similar laws was the image of purity, not actual evidence of a serious problem. This is not something to sneer at though the solution is not burdens on people's right to vote. The problem of distrust in the system, including voting, is clear. It should be, but is not, a bipartisan effort that addresses the various sides in a reasonable manner. One can add the issue of campaign finance, reforms in disclosure laws something that some bipartisan majority should find some room for agreement. The Arizona law shows an id law in a conservative state can be balanced; even picture id laws can be possibly handled if done correctly. Ultimately, it is important for our republican values, voting a core matter there, to do things right.

I fear that the results on Tuesday will not help the issue. We shall see. I think I shall skip the drawn out results watching and wait to the view them. Too much like watching the Giants hold on to a lead, well, before the World Series.

True Hackery Against O'Connor

[See here how someone thinks it is "clear" that she violated judicial ethics.  It just isn't hazy, mind you, or concerning, it is "clear."  The breadth of the concern, which if evenhandedly supplied would affect lots of judges, is notable.  Few, however, ever do that.  They selectively attack people, sometimes with a faux "evenhanded" approach.  It pisses me off.] 

This is pretty lame. Really lame.

Justice O'Connor is out there serving the public interest in any number of ways, ways that are not "partisan" -- promoting civics for school children and the public at large, hearing lower court cases, educating the public about a disease that killed her husband and speaking out about her concerns of judicial elections. I realize, her votes supporting George Bush [hearing Gore might have won, she noted "that's horrible!"], state immunity, extended spending for church related schools etc. aside, she seems "liberal" given how far gone we have gone these days. Another member of "the left," a former Republican legislative leader in Arizona and Reagan appointee. So it goes.

But, come on. Judicial elections in particular are controversial, problematic at best, the road to biased judges (again, since no one side controls the money, this is not just a partisan issue, though the leanings of her attackers make that seem otherwise) and often people no one really knows about. Obscure third party candidates are more well known than most judicial candidates on the ballot in my state. The issue of donations is of particular concern though. It should not and pretty clear is not a violation of judicial ethics for her to talk about such things:

But Shaman, along with another top judicial ethics expert, New York University's Stephen Gillers, don't see anything ethically wrong with what O'Connor has done in the first place in relation to the Nevada initiative. "She has a special expertise about these matters, and I don't see anything wrong with her speaking out about a matter of public concern like this," said Shaman, who asserts that O'Connor's advocacy falls in the category of speech about the administration of justice that the canons permit.

In fact, Supreme Court justices are not even technically covered by the ethics requirements, which allow "judges to speak to the public and to legislators about legal matters and the administration of justice" anyways. The rest is a bunch of what comes off as conspiracy theorizing. All very lame. Is this which we will be promised in the next few years? Public servants will be deemed unprincipled by unprincipled hacks?  While we have every right to be upset at the limitations of our "leaders" and how they have not done enough, there is a base line.  O'Connor is above it.

Her critics here along with many of those who will be elected on Tuesday are below it.  Sometimes, like serious adults (contra some of the land of unicorn comments here), we need to have a sense of perspective.  Her critics here surely don't.  They are the definition of tools and hacks. 

 

Cheery Future That

Krugman says to be very afraid on an economic front if Republicans win at least one house next week. True overall. Republicans have been horrible as a minority. I'm sickened at giving them more power. The "lesson" will be for Dems to be more conservative. Great!

Yankee Fans: We Couldn't Beat These Guys?

The Rangers' bullpen walked its team completely out of this game. Lowe walked in another run, making it 4-0. Then Renteria, tired of looking at bad pitches, knocked a single to left field on a 3-2 count, bringing in two more runs.

Lea Thompson

Lea Thompson gives a nice interview (those blog moments in NYT are often nice) to promote twenty five years of Back to the Future. Saw it at a former drive-in that I believe my mom went to. Fitting, huh?

World Series (or batting practice?) Begins

Kagan's First Dissent

Jeffrey Landrigan was just executed by the state of Arizona.* His offense involved a murder committed after he escaped from prison while serving a sentence for second degree murder. Underlining how even the small class of "easy cases" has problems, the Supreme Court rejected a claim 5-4 that he was denied a necessary hearing to determine if there was the proper degree of guilt. [I add this next part via a NYT op-ed, the dissent a bit opaque on first reading.] As would later be the case, the Supreme Court ignored lower court opinion on the matter:

The court’s whitewash highlights the arbitrariness of Mr. Landrigan’s execution. Cheryl Hendrix, the retired Arizona judge who presided over his trial, recently said, “Mr. Landrigan would not have been sentenced to death” if she had been given the medical evidence of the defendant’s brain damage and other factors. Mr. Landrigan’s inept trial lawyer didn’t submit the evidence.

She no longer had the power to alter his fate, but, in an affidavit for the Arizona Board of Executive Clemency, Ms. Hendrix supported his plea to have his death sentence commuted to life. “Since the courts have not corrected this injustice,” she stated, “I am compelled to submit this declaration on Mr. Landrigan’s behalf.”

The same split, the replacements following their roles (so it's Kagan's first significant vote), overturned a recent stay. After "a day full of delays" (oh no!), the Supreme Court overturned a district court stay that was upheld by the court of appeals. The district court judge had a respectable resume, including:

# Assistant state attorney general, Arizona, 1984-1986
# Assistant U.S. attorney, District of Arizona, 1980-1984, 1986-1994
# Chief of criminal division, 1989-1994

Her concern? The state was not willing to openly provide information about the origins of an execution drug obtained overseas, the special supply necessary since there is a growing nationwide shortage. [I see by that link that this is not the only challenge over novel sources of drugs.] There is a state law protecting the source, intended to protect providers from harassment and the like. The judge held that there was a federal constitutional right to avoid "significant risk of suffering serious harm," pursuant to a recent Supreme Court ruling on drug protocols. Without the information, how could she tell? The Supreme Court, 5-4, looked at it the other way -- there is no evidence now of problems, so we can't assume otherwise. The temporary stay for an evidence hearing was lifted.

I find this troubling. Yes, the appeals have been going on for some time, which is fairly normal. It is likely a delaying tactic. So? The overall purpose is to ensure that the system as a whole is secure, which includes providing judges who were state and federal prosecutors in the very state involved enough information to assure them specially obtained drugs to execute people are acceptable. Having the U.S. Supreme Court, 5-4, step in to interfere with lower court fact-finding sends a bad message and is generally a bad idea. What is the problem with dotting the Is and crossing the Ts in a case of this sort? At least, let the hearing go forward.

A regular contributor to certain blogs was quoted by the NYT:

Kent Scheidegger, legal director for the Criminal Justice Legal Foundation, a group that supports the death penalty, said that arguing over the safety of a drug for executions is “absurd.”

“As long as it’s a real drug manufacturer and not mixed up in somebody’s garage, it doesn’t matter where it came from,” Mr. Scheidegger said. While the Food and Drug Administration is supposed to determine whether drugs are safe and effective, he said, “in this case, safe and effective are opposites.”

Nope. "Safe" in this case is that the anesthetic works before the person is paralyzed and a third drug in administered in a way to cause "a conscious inmate to suffer excruciating pain." We are supposed to be overly concerned (see Bush years) of willingly obtaining cheaper drugs from Canada and so forth, but in a different context, the foreign drugs are assumed safe. The proof is on the side of the person executed. Seems a tad bit backward. Repeated problems with executing protocols underlines that this overall area is not a trivial concern. The physical pain from punishment is if anything the core concern of the Eighth Amendment. State refusal here underlines this is not merely a chance occurrence, the state not actively involved in the risks involved.

The shortage of drugs suggests that the Supreme Court reached out here at least in part to close up a potential area of delay in upcoming cases. But, even there, waiting a month (if that) for the evidence hearing could be as useful to close up a certain loophole. The route for a defense attorney now is to obtain more evidence that the source of the drug is tainted. A hearing could have determined what rule would be followed there. The alternative taken here is that there is one more reason to distrust the system, 5-4 likely to rush to judgment the next time some problem is flagged, not giving former state/federal prosecutors some deference.

I dissent.

---

* Another Arizona case in the news is a partial override of a state voting law, the concern being that it was pre-empted by federal law. It was a 2-1 ruling, Sandra Day O'Connor sitting by designation in her still quite active judicial role. Judge Kozinski strongly dissented. The tie breaker clerked for both of them.

"The Assassination of Dr. Tiller"

RM aired this documentary tonight. It is powerful and provides various sides of the issues. Of note also is a husband of a woman having an abortion lashing back at protesters. Also, three women who had abortions by him told their stories. Essential stuff there.

Giants Win, Bit Too Lazy in 4Q

Dallas QB out early, the NY come from behind and dominate, but then shut down and give Dallas a chance. Two back to back turnovers late probably wasn't appreciated by the head coach. Still, Dallas appears bye bye as Giants go to their bye. Next up: World Series baseball.

Yay for America!

Gary Farber over at OW provides his usual in depth type coverage on Wikileaks. The assumption, often taken for granted without much excitement, is that Republicans will seize control of the House. This means benefiting the primary enablers of f-ups in war, economy, etc.

Quick Thoughts

I feared that it would be a bit too precious, and it had a shade of that, but Fantastic Mr. Fox was fun with a bit of pathos. Good Luck Charlie was cute tonight and another good game, though the Packers should have won much more easily. One more close finish.

Week 7

Not quite, but it seems like one NY team is always playing a night game this season. It's the Giants' turn tomorrow. Today, there now one winless team, though it didn't look that way early. Oakland whipped Denver. The Browns, Saints. Yes, more surprises for fans.

Pink Flag?

A flare-up about unauthorized use of pink whistles suggests there is more than one "message" that can be sent, including "the perils of absolutism." Great pitching, energy (even after bad losses) and (often timely) hitting did it for the two WS teams. Good job.

Rangers/Giants WS

Three starters (4.1 innings) and a nail-biter finish (oh look, more runners left on) and the Giants slay H20 & company. Nice match-up, like Rangers, pitching favors Giants probably. Okay to me if either wins, really. Should be fun for both teams. NYT blog fun again.

The Civilization of Maxwell Bright

The path to redemption is a bit too simplistic and the second half is a bit weak, but this film is worthwhile to see Patrick Warburton's raw performance (who knew?) alone. Some additional good performances, including Eric Roberts and Jen Tilly (again not quite to type) helps.

Rangers/Giants WS? One Game Closer (Clincher 1)

Everyone was worried about facing Cliff Lee twice. Colby Lewis is about to beat them twice.

As that NYT blog notes, even a bad call that lead to a run helped the Rangers in the long run. And, Lee starting Game 3? No problem.

Reflections on Response to Juan Williams' Firing

Conservatives, who have zero use for NPR in the first place, called this another example of an elitist liberal organization practicing smug political correctness. They also suggested NPR had been thirsting for an excuse to fire a guy who has another gig - at Fox News, where he often tilts more rightward.

That could be true. It's also true NPR could have voiced its displeasure without firing Williams.

Let's at least consider, however, the possibility that firing Williams was NPR's way to reassert its commitment to a radical mission: trying to maintain a civil alternative in today's raucous media.

Such is the evenhanded remarks of the NY Daily News media columnist, David Hinckley, who is perhaps best know for his music/radio coverage. A lot better than the kneejerk remarks of the editors of the paper, showing their FOX sympathies. The paper still has various good points, but a center page with that, a guest columnist (worth reading, to be sure) and Charles Krauthammer does leave something to be desired.

Anyway, I wrote a lot about this -- see yesterday -- over at Slate. The responses were often depressing. Glenn Greenwald today does what Rachel Maddow did yesterday, use the blowback to focus on the anti-Muslim prejudice out there. Some of the responses reflected how this affects the ethos. Some found it outrageous to even suggest his remarks were "bigoted" (Random House being cited once to give it such an absolutist meaning to limit it to a select few) or at times even wrong at all. That is, to even suggest they were wrong. Pointing out that some find the remarks, not him as such, bigoted also lost some people. I was accused of calling him a bigot after saying he was not fired for being one.

And, of course, this was all some liberal plot by the NPR. As with the idea that singling out Muslim people for how they dress, Muslim garb "first and foremost" singling that they are Muslim (as compared to being one aspect of their being), and being afraid of them for being I guess too Muslim, is not "bigoted" at all, surely not, this is b.s. NPR, sorry if this ruins the framing, are not letting employees (not celebrity commentators) from going to the Stewart/Colbert rally. As DH notes, NPR is concerned about their image. It isn't just some liberal plot. Nor is keeping a brand pure "censorship" by NPR. Is hiring a Bill O'Reilly necessary for balance too? Ridicule the brand or not.

It is all depressing and it seems to get to me more these days. Firing him can be opposed. I don't really see it as a good thing. I don't think -- as DH notes -- what he said is so very horrible, especially as compared to a lot of other things. But, especially given his past actions* (contra those like the editors et. al. who seem to think this is a one-off, if I'm using that British term correctly), there is a reason to red flag what he said. Bill O'Reilly "is right" -- first thing out of his mouth -- after all, I'm not a bigot (Andrew Sullivan is right, that usually is not a good preface) and I fear Muslims. The later provisos (yes, I listened to the whole response) in effect make this defense more powerful, since it gives him validity. He isn't simply a tool, you see. Still, he does end up agreeing with BR about Muslims not being targeted after 9/11. The "you are right" to that ending sends a mixed message. You can interpret his words benignly, but then what is O'Reilly "right" about? Of course, again precedent helps here, the FOX enabling is why he is so useful to them. And, why the NPR has a reason to be concerned.

Another thing that bothers me is how many people don't really respond to what I say on such message boards. They provide an answer, but it isn't really responsive. They in effect state their opinion. They don't actually answer my argument. I often blockquote a comment, breaking it down, and respond to each part. This takes more time and is not always the easiest way to do things, but it is helpful and (ideally) forces me to focus on what is said. Also, I find that often the responses that don't do this don't really respond to what is said. I find it necessary to actually open up a new window and search past comments to reaffirm this. See, e.g., my discussion of "bigot" ... I go spend time commenting on this, how he isn't a BIGOT, but arguably said something bigoted (I provide a definition by Wikipedia etc.) ... and then am shamed (usually I'm above this sort of thing, apparently) for calling him a bigot. This leads to a level of stress usually left to sports.

Since I'm on the topic, need the get the navel gazing out of my system, it reminds me of a debate I had over some hot button topic. Someone in effect said that I was using facts that backed up how I saw things, my point of view. I noted in passing (tossing in something like "this could be") that this came off as a bit insulting. When I even hinted at bias or the like, the person's hackles got up. Calling the person on it got denials (no no, I'm not sensitive ... you are!). The person appeared truly surprised that I said that. Actually having a truly objective view of things (imperfect as that is given our biases) was not really possible. This is why s/he (I sort of assume, probably wrongly, many of these people are hes) wanted to know my beliefs. My beliefs were not really necessary to my mind since I was challenging a premise that did not go to beliefs per se. But, if objectivity, some common ground, is not possible, well, yeah. The road to perdition though.

If we can't fairly look at things and find some common ground -- with much room of disagreement -- to this extent, it's a big problem. Even when I agree with people on core matters, it is often troubling when a matter is dealt with unfairly. And, this includes looking things in a proper overall context. I personally find doing things in this way more productive and even enjoyable -- it is challenging and rewarding to look at things through someone else's eyes, often hanging them up on their own petards. It is also the road to true understanding. On that level, how helpful was the firing? Did it only worsen things on some level?

Hopefully, there is some good to it all, for the reasons cited in the opening as well as a window into other matters. One can hope.

---

* The whole discussion at the link is worthwhile. But, the link to NPR's response is particularly notable, in part to get an idea of the problem given its standards. This in response to some who said he was just being honest, so what's the problem:

NPR, like any mainstream news outlet, expects its journalists to be thoughtful and measured in everything they say. What Williams said was deeply offensive to Muslims and inflamed, rather than contributing positively, to an important debate about the role of Muslims in America.

Williams was doing the kind of stereotyping in a public platform that is dangerous to a democracy. It puts people in categories, as types – not as individuals with much in common despite their differences.

I can only imagine how Williams, who has chronicled and championed the Civil Rights movement, would have reacted if another prominent journalist had said:

"But when I get on the plane, I got to tell you, if I see an African American male in Dashiki with a big Afro, I get worried. I get nervous."

BTW, the NPR Ombudsman (person) saying this also was once attacked by Glenn Greenwald for supporting not using "torture" when discussing American actions. But, hey, the NPR is just a pro-left group here. It's so tiresome to deal with this b.s.

Next Up: Game 6 x 2

Phils took advantage of an error, Giants didn't.  So, Phils go on.  Boo.

Georgia Anne Muldrow's 'Run Away'

Nifty animated music video thanks the Rachel Maddow's blog.  I think Glenn Greenwald et. al. are right about William Saletan's piece today on Juan Williams' firing; yes, again WS is wrong.  Shocker.  See also, various "Joe_JP" posts connected to WS' article.  Enough on that.

Rangers/Giants WS? One Game Closer (Part II)

The Game 1 re-match was not that pretty on either side, but only the Texas side gave up all those walks and homers.  So, the ace was good enough to force a Game 6.  Oswalt failed to get a hold, making it 3-1 Giants.  Lets nip this in six (five will do Giants!), okay guys?

O'Donnell Voices A Common Sentiment

And Also: Walking Naked is the U.S. debut by Australian young adult author Alyssa Brugman, a well written examination of peer pressure and more tragic matters (dark foreshadowing comes early).  It has universal appeal, but some Australian terms add nice flavor.

[The below was originally in response to this article by William Saletan.  See also, my response here.] 

With all of this reality (and much more) staring it in the face, how can the Court possibly assert that “ ‘the First Amendment mandates governmental neutrality between … religion and nonreligion

 -- Justice Scalia (with whom The Chief Justice [Rehnquist] and Justice Thomas join; Kennedy did not join this part of his dissent)

I listened to Rachel Maddow discuss O'Donnell's 'cockiness' last night in tones similar to Saletan here and was a bit distraught. It brought to mind this plea for religious fluency. This includes at least not being shocked when common beliefs are cited. It's like when CO talked about lust in our hearts being wrong. I did not see one person note Jimmy Carter said the same thing, resulting in similar patronizing ridicule. I admit the masturbation context had an additional titter factor.

It is a broadly shared sentiment that there is no "separation of church and state" protected by the First Amendment. Many now (and in Jefferson's day) think the 1A is in place to protect religion, particularly certain religions, but think it a bit ridiculous to think separation actually does that. Some are loathe to even think of non-Christian (Judaism gets honorary junior partner recognition -- "Judeo-Christian" and all that) groups as even "religions."

Some think a principle that was around in the days of the Pilgrims (by Roger Williams in particular*) was just something Jefferson wrote in a letter one day, not a basic school of thought on what the amendment means. It is one that -- in various degrees (Coons didn't say "strict" separation, did he?) -- shared by a majority. But, especially in connection to certain matters, a strong vocal minority thinks it is an anathema. This troubles many of us and keeping it from being the dominant view is part of why people don't want her side to win in November.

As Coons noted, the principle of separation is not literally found in so many words; it is a principle that grows out of those words. A principle some think is absurd. Many more than someone who is so easy to make fun of.

 ---

* Roger Williams is often cited as the source of a common metaphor:

"[W]hen they have opened a gap in the hedge or wall of separation between the garden of the church and the wilderness of the world, God hath ever broke down the wall itself, removed the Candlestick, etc., and made His Garden a wilderness as it is this day. And that therefore if He will ever please to restore His garden and Paradise again, it must of necessity be walled in peculiarly unto Himself from the world, and all that be saved out of the world are to be transplanted out of the wilderness of the World." [Roger Williams, "Mr. Cotton's Letter," Roger Williams: His Contribution to the American Tradition, Perry Miller (New York: Atheneum, 1962), 98.

The Supreme Court took it up in the 20th Century, but as noted in the seminal case, the principle was around for some time, including in the 1870s:

The structure of our government has, for the preservation of civil liberty, rescued the temporal institutions from religious interference. On the other hand, it has secured religious liberty from the invasion of the civil authority.

The pushback was always there too, including a felt need to amend the Constitution to reaffirm God's role protecting our nation, a theme that eventually led to the addition of "under God" to the Pledge of Allegiance.

Rangers/Giants WS? One Game Closer

The $82.5 million man had lost seven of his last eight regular-season decisions, was dropped from the rotation in the first round and hadn't pitched since Oct. 2. Since 1952, pitchers starting postseason games with 16 or more days' of rest are now 0-11 with a 7.43 ERA in 15 starts, according to STATS LLC, and Burnett joined a list of losers that includes Roger Clemens, Catfish Hunter and Kerry Wood.

"From Obama, the Tax Cut Nobody Heard Of"

Repeatedly, and torture enabling doesn't help, we get complaints that Dems didn't do anything worthwhile.  So, tools will be elected come November.  This article provides yet more evidence of the contrary, the intelligence of the tax break (oh vey!) hurting the Democrats.

More on Sotomayor

Sotomayor's solo dissent is getting some attention and this provides me a chance to discuss things more in depth.  Also added a link to her recent 12 Angry Men appearance.  Busy gal!  And, Sen. Kirsten Gillibrand gets good press.  A bit of a puff piece there Vogue!

Republican Quickies

It's not a high point, but I think the positives over at TPM are right overall about the Conway "Aqua Buddha" ad. I like Meghan McCain overall, but why is she on This Week AND Rachel Maddow back to back?  Alito comes off bad saying this now. Tad partisan.

Note to NY Daily News

Yanks won't win in 5 ... a couple predictions aside.  Texas won the first time via Lee (and Price playing badly).  This time they were impressive so far, except for one killer inning.  Up 2-1 now. 

Blue Footed Booby

Recent context. Another context.

Sotomayor Again Shows Her Liberal Cred

Justice Sotomayor wrote a solo dissent from denial of cert. concerning a prisoner allegedly punished in a way that threatens his well being for refusing to take his HIV medicine to protest his transfer to a prison facility. She flags the Eighth Amendment problem.

Just Asking For Trouble Watch

The effective end of NYG game: "Drew Stanton pass intended for Brandon Pettigrew intercepted by Antrel Rolle RETURNED from NYG16 for 36 yards." This with twenty seconds left, no time outs for Detroit. Why not just take a knee? Same applies last week for the Jets.

Week 6

Messy games, the Giants seemingly wanting to give Detroit the game (but they didn't want it), but both NY teams won. SF finally won but the Chargers lost again to subpar competition. East still division to beat overall. Other good games as well. Not a bad season so far.

Important Employment Case

The funeral protest case received a lot of press while some criminal justice cases did as well in Slate and elsewhere, but there was a statutory case that recently was orally argued that warrants some coverage too. Scotusblog links us to this summary:

Kevin Kasten filed an anti-retaliation claim under the Fair Labor Standards Act (FLSA) after his employer terminated him for multiple time clock violations. He had orally complained about the placement of the time clocks but had not filed a written complaint. The location of the clock precluded employees from punching in and out until after they had donned or removed safety gear. As a result, workers were not paid for time spent putting on or removing safety gear. The issue is whether FLSA anti-retaliation clause applies to internal, oral complaints.

Many justices were wary about the word "filing" -- how can you orally "file" something?  And, that is required pursuant to the law in question.  As noted by a comment here (the blog itself predicts a loss to the workers/government, the Labor Department [hey TPM, remember them?] on their side), the point here is retaliation.  Why wouldn't retaliation arising from oral complaints not be covered?  Someone is fired for complaining to a supervisor and it's acceptable?  The textual argument, one the government supports here (and administrative agencies have broad discretion here in applying text with more than one possible meaning), should favor Kasten here. As Justice Ginsburg notes, referencing a 1930s provision, what about the illiterate? 

Without more research, I can't determine the proper path, but the scope of the issue is notable; from the original summary:

Regardless of which way the Court rules, its decision will likely have wide-sweeping effects for numerous employers and employees. Amici note that a study of worker complaints about wage and hour violations found that 95.5 percent of workers raise issues with their supervisors verbally. A 2008 report by the U.S. Government Accountability Office found that 72 percent of Wage and Hour Division investigations were instigated by worker tips. Most of these tips are reported orally. In its amicus brief, the Solicitor of Labor emphasizes that many federal agencies, including the U.S. Department of Labor and EEOC, permit employees to file complaints orally, either in person or over the telephone. If the Supreme Court were to rule that a complaint must be in writing to be protected under FLSA, such ruling would require the government, and likely many private employers, to change their established practices.

And, from another analysis:

In some ways this case is a bit of an odd-ball.  Over the past couple of years the only employment civil rights laws that have been relatively safe at the Supreme Courthouse have been those protecting employees against retaliation.  If the Court rules against employees in this case and holds that the FLSA anti-retaliation provision only protects employees who lodge a formal, written complaint with the government, they will effectively end anti-retaliation protection for many if not most employees in overtime cases and will call into question retaliation protections found in other statutes.

As we focus on some hot button cases, these important statutory cases (remember Ledbetter?) should not be lost in the mix.  The oral argument can be accessed here -- it is fairly  interesting.  One more thing: it does give a person a chance to hear one of the big names in Supreme Court advocacy, the company lawyer here. 

 

Second Day: Better

The ace pitchers gave up seven runs combined, not two hits, the Giants coming out ahead.  The Rangers managed the split they needed, if blowing a shot at 2-0.  Even anyways, with Lee coming.  Still, today I'll be more concerned with NY football.  Go R/Gs!

The Age of Impeachment: American Constitutional Culture since 1960

[Update: Talking about Nixon, good NYT article on campaign donation disclosure put in a historical context.]

David E. Kyvig's book is interesting and worthwhile in providing the details and background to the serious attempts at impeachment in the last fifty years, after providing a quick summary of the history up to then. When a federal judge is currently being tried with very little coverage, it is useful to learn about the three impeachment trials during the 1980s involving judges, two others never getting that far.  We also learn about Fortas, Douglas and the presidential impeachment developments.

My concern is with the thesis that somehow this was an "age of impeachment" as such, or rather, that it is particularly troubling that it was.   The author leans toward seeing impeachment as it was for much of our history -- a little used development, one that often (see Andrew Johnson, Justice Samuel Chase or somewhat trivial seeming judicial impeachments)  done for questionable reasons.  The message seems to be that it was rarely necessary, aside from Nixon and perhaps the random judicial case that probably was no major concern either.

Things get off on the wrong foot, after all, with "Impeach Warren" signs and all.  But, the effort -- even among conservatives like William Buckley Jr. -- was not really taken seriously.  The targeting of Abe Fortas was portrayed as a novel political attack, but the book is a bit selective here. It doesn't address the issue that other lame duck Presidents beforehand had trouble confirming end of term nominees.  And, Fortas' conflict of interest (including as a presidential adviser) was a red flag.   As to Douglas, he was not your average justice and the failure was a useful lesson ala Chase about the limits of impeachment.  Some aspects of the situation were troubling, including Nixon's involvement.  Still, overall, other than a partisan effort by some conservatives later, judicial impeachments don't seem that notable after this Warren Court interlude, particularly with the expanded judiciary and more attention given modern media and fairly benign judicial councils set up to keep track of things.

The book does see impeachment as a sort of unwieldy process, drawn out and messy, as seen in the Nixon case.  Yes.  The book notes that the Nixon case in effect stereotyped "necessary" impeachments to cover the narrow situation there, a situation that didn't even take into consideration his bombing of Cambodia.   This opened the path (along with a distaste with attacking Reagan personally and the whole mess of impeachment, it's so much trouble, makes us look bad etc.)  of treat Iran Contra at best as bad policy.  But, impeachment if nothing else is meant to address such "encroachments" of congressional prerogatives and dangerous foreign adventures is exactly the sort of thing the Framers were worried about when putting limits on executive power.

The book correctly notes that letting Reagan off the hook because he seemed out of the loop and all is rather ironic since "the buck stops here" is a primary purpose for having a single executive.  The author suggests the Congress did not adequately take Iran Contra seriously, noting as well that later evidence showed that Reagan was aware of what was going on.  Likewise, the independent counsel eventually determined the vice president also knew what was going on, making his pardon of various participants particularly nefarious.

But, this seems more a matter of investigatory laxness, since he treats opposition to the last President as basically political.  This drove me crazy since he repeatedly cites ways he broke the law and his constitutional duties.  A lack of will to prosecute doesn't mean there is no grounds of prosecution.  Pelosi taking impeachment off the table was cited as a reflection of what the framers thought impeachment should cover.  I was not aware that this was that if something wasn't supported by the people or political will.  If lying us into war, torture, breaking the law, etc. is not covered, what is?  The book ended on such a lame note.

It is true that impeachment was on the table a lot more after 1960.  But, only relatively speaking. Fact is, only a handful of judges were targeted (at least one not impeached arguably correctly), a few convicted, and none until now after around 1990.  Reagan's impeachment was never really seriously considered.  Nixon was clearly a special case.  I would argue that Bush was too.  The fact that Republican presidents in recent years warranted impeachment and Republicans wrongly targeted a President for one is notable.  On that front, we did have an "age" of impeachment.

How bad it was in each case is another question.

Game 1: Are The Twins Still Playing?

Local paper had the Yanks winning in 5. A tad bit much. But, after blowing a gimmee, who knows? Nauseating. Giants might be best hope to avoid a "like who wants this" re-match. Not that I actually feel like watching either the Yanks or Phils even now.

Kneejerk Conservative Moves on Gay Issues?

Though it has sixty days, ignoring my senators among others, the DOJ asked for a stay on the injunction of DADT right away. This was not compelled. Ditto (see my comment here) on a pretty narrow DOMA lawsuit. This invites scorn, making other moves harder to accept.

Paladino Apologizes; Ruins His Crazy Cred

[Rabbi] Levin said today in front of St. Patrick's Cathedral in New York City that he can no longer support Paladino, "until such time as he straightens out."

Said with a straight face? I know a filter didn't seem useful so far, but Paladino might want to use one now that he is allegedly a serious candidate. OTOH, open confused bigotry has some honesty to it.

More Audio

Oyez.com has put up audio for the 2009-10 Supreme Court Term as well as begun to post 2010 Term audio with "access and search 2010 Term audio in 'expanded view' to isolate segments or speakers." The novel (here any SC audio) will soon become routine yet again!

Rays Play Sloppy as if Lee Needs Help

Drugs and Justices Watch

I have never seen cocaine myself

-- Justice Stevens (speech is interesting too)

Denial of Cert Watch

News item from 2008:

Weise and Young were among three people, referred to as the "Denver Three,"* removed from the museum before Bush started speaking. They had obtained tickets for the taxpayer-financed event from a local congressional office, but when they pulled into the parking lot in a car bearing the bumper sticker "No More Blood For Oil," they were pegged as potential troublemakers by White House staff.

The White House has a policy of excluding troublemakers — even potential troublemakers — from appearances by Bush. Daniel ruled that previous courts had allowed a restriction of speech at presidential events.

Such behavior was a concern at the time and no matter what side you are on politically, it should then and now send up a red flag on First Amendment grounds. As Justice Ginsburg (joined only by Justice Sotomayor, who has had a fairly consistent liberal record so far) noted today:

I cannot see how reasonable public officials, or any staff or volunteers under their direction, could have viewed the bumper sticker as a permissible reason for depriving Weise and Young of access to the event.

As the Supreme Court rules on video games and such, it will allow this restraint of "potential troublemakers" stand.

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* This is a common technique (particularly by lefties) to give catchy names that harkens back at least  (probably longer) to Vietnam days and is a tad too cute. 

BTW, the photo is from here, which provides further discussion of the case with some quotations from the dissenting opinion below.

Jets Win 29-20, But Not Easily

 And Also: A Republican strategist/commentator was on Rachel yesterday to respond to the recent anti-gay comments by Republican candidates.  He noted some Republicans don't go that way and that the party should recognize the future/true equality. But, it doesn't now, buddy.  It aids and abets prejudice. It doesn't deserve our votes as long as it does that. 

Brett Favre has jumped the shark, but he was playing the Jets, so his act was not wanted this week anyways.  The flawed greatness aspect of the game also included new Vikings, Randy Moss, who was not likely to have know enough plays yet to have a complete role.  A resurgent Jets team, the defense continuing to shine, was helped early on by heavy rain.  Well, somewhat.  Including right before (and after, when the rain cleared up)  the end of the First Half, the Jets repeatedly only scored field goals.  Minnesota has a pretty good defense too.

It was 9-0 at the Half, and 12-0 mid-Third Quarter.  And, it took only one good drive (and nearly forty yard pass) to make it 12-7.  This was follow-up by ... another field goal.  15-7.  Those field goals and that defense did matter, all the same, even when the Vikings again scored ... but missed the two point conversion try.  Holding on to a thin 15-13 lead now, the Jets eventually finally scored a touchdown. Nine point lead, 4:30 left. Then, the Jets really made it interesting. First, a special teams f-up led to a return to nearly mid-field. Next, they allowed the Viks to score in less than a minute and a half.

Finally, after getting a First Down at 2:47 with the Viks having one time out, showing how even a few more seconds on the Viks drive would have been important, poor clock management led to a Fourth Down at the Two Minute Warning. So, a perfect storm of bad special teams play, what looked to me pretty lax defense to allow a quick score and poor clock management (after a promising start), gave BF nearly two minutes to get into field goal range. This really should have been enough time with a Jets penalty helping on the first series. But, the Jets D this time held -- many Jets fans surely were nervous with all those second half points -- and the Old Man made one of his now infamous picks.

This made it 29-20. The fact is that the player should have simply took a knee or went out of bounds at the goal line. All scoring did was result in one more mostly garbage time drive (but, hey, who knows) that was unnecessary because the Viks were out of time outs. Oh well. Though the Jets late game slip-ups could have been fatal against a better team, the end result was sweet. There is even the amusing tidbit that "some mild tendinitis in his throwing elbow" might have affected his game. The Jets remember him playing hurt. And, though four of five of them were mid-range or short, five field goals is a good sign.

Next up: Rangers v. Rays. Almost sounds like a cheap movie on whatever they call the sci-fi channel these days. I think the Rays have an edge, since it's their ballpark, they have the momentum and David Price wants to pitch like an ace this time around. He already dueled the Yanks ace to a draw, so why not do the same with Cliff Lee? But, it can go either way, helping the Yanks with the teams wearing each other out and using their aces. We will see how that and lay-off time will affect things, including when the Phils play the Giants.

Sports Update

The pitching held up but injuries led to too many errors and lack of hitting, though SF pitching had something to do with the Braves being out after four.  Meanwhile, helped by sludge worse there than over in my area, the Jets have a thin 9-0 lead though dominating the Half.

Ideology Aside, Wouldn't You Rather Vote For Him?

Rachel Maddow has discussed how various Democrats running this year are speaking out, defending their record and often focusing on local issues.  She mentioned the underdog in the Senate race for Alaska and this local coverage (go girl!) underlines the point.

Sometimes, Reading (It All) Isn't Fundamental

A comment here wonders why people finish bad books.  Well, lately, I have stopped reading (or skimmed over) some books that I just couldn't get into.  Sometimes, this is true with movies -- I could not get into the film version of FNL, so I shut it off about 1/3 through. 

Go for it Ginni!

And Also: Talking about the Supreme Court, see here about a case where technicalities can lead someone to miss the forest for a single tree, a concern that listening to the oral argument only reaffirmed. [Update: See this blog post as well.]

The NYT and Dahlia Lithwick (who quotes the former) had articles on Ginni Thomas' Tea Party activism.  Yes, Mrs. Justice Thomas.  Lithwick notes that Ms. Thomas is very youthful and energetic.  She looks a bit less "youthful" in one of the articles linked, but if 90 year-olds can play tennis, the fact she is full of energy in her 50s is not too surprising. Many readers know of the energy level of parents, some are even around that age themselves, and they are full of life. Having a cause you believe in and fighting for it helps in this respect.

I don't begrudge her the right to be an activist and the fact a few of many justices' wives had a hard time doesn't mean they all do. Ruth Bader Ginsburg's husband apparently did rather well for himself and the wives of most justices appear, with the usual troubles of being a spouse of a public figure, did okay. Others play a public role while their spouses have judicial roles. As a NYT article linked in the piece notes:

In past interviews, Mrs. Thomas has suggested she is being singled out unfairly; other spouses of judges are politically active, she has argued, usually mentioning Gov. Edward G. Rendell of Pennsylvania, a Democrat who is married to a judge on the Court of Appeals for the Third Circuit. Mr. Rendell has to disclose direct contributions to his campaigns. And parties can appeal to the Supreme Court should his wife not recuse herself when her impartiality is questioned.

Of course, a justice is more important than a lower court judge and there is some dispute over disclosure in Mrs. Thomas' case, but we should be well aware that the justices' family aren't all living in a monastery or something (though at least two of their children, that I know of, are members of the clergy).  Judge Reinhardt's (the famous/infamous liberal judge from the Ninth Circuit) wife plays a role in the ACLU.  Ginsburg's husband was a tax lawyer/professor, who surely had public opinions about tax laws the Court ruled upon.  As Tocqueville noted, the Supreme Court eventually rules on most everything, down to issues involving education (guns in schools, funding issues, drug testing, etc.).  Some people are more directly involved than she is, given her role in more political, than legal interest group related. 

As to her railing against the PTB and being the wife of a justice (reference in the Slate piece), well, there does tend to be a certain myopic view there. Hubby is different. My congressperson (or gay friend or whatever) is different. And, he's surely one of the select -- he is fighting the good fight. We can trust him.  And, the Tea Party has a tendency to be selective in their focus. This is not unique to them; note how coverage is selective too -- large numbers of peace activists did not get as much attention as some noisy anti-health care reform activists. 

I can understand how this all has a distasteful feel for some people, but again, they might not have been Tea Party sorts, but other wives and family members played political roles or had a voice in political causes. And, the fact it wasn't done quite like this in the past was at least partly a matter of wives not having such equal roles in political movements.  It is not like she is on FOX or has her own radio show.  The average person, even many who pay some attention to right wing causes, probably isn't aware of what she is doing.  Targeting her (or her husband as a lousy justice, as if the fact he asks questions, often largely to clown around, makes Scalia somehow better*) has a feel of sour grapes, a dislike of her politics or her husband's views.

If looked at calmly and evenhandedly, the purity sought might not work as well as some think.

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* A court watcher recently noted:

Finally, part of the in-the-flesh experience of Supreme Court arguments is not only watching the justices speak, but also watching them listen.  Several panelists at today’s symposium expressed their deep appreciation of Stevens’s ability to listen patiently and politely to the arguments as the other justices’ seemed preoccupied with internally formulating their next questions.  These scenes cannot be conveyed over audio.  From Justice Thomas’s brief-thumbing to Justice Ginsburg’s trained stare at the advocates, the justices’ listening styles may speak as loudly as their amplified voices about their commitment to the case before them.

Mike Sacks is getting to be a must-read for court fans!

Sports Update

Twins total losers again, Texas has Lee to try to stop that, injuries cost the Braves a game, Reds commit yet another error (and get swept) and the NY Giants win as there continues to be some football upsets. But, not SF, who have but another killer loss. 

Bullying Issues

This week's Gay USA broadcast centered on bullying, especially the recent outbreak of suicides arising from such behavior. The hosts -- both gay -- argue that criminalization is not the ultimate answer. In fact, they doubt a local case in NJ was necessarily the result of anti-gay animus. The fact his roommate filmed his sexual acts could be a heinous prank, one that would have occurred if heterosexual sex was involved. The solution is a change of environment, particularly of those on the sidelines.

One host referenced a tweet by 50 cent that some saw as anti-gay. The other said not to go there since it didn't seem to be the intent. As 50 cent himself noted:

The other night I made a joke about a blow job. My male followers enjoyed it. So I then went on to joke about women receiving the same. Some how they turned a simple joke about oral sex into a anti gay statement. I have nothing against people who choose an alternative lifestyle in fact i've publicly stated my mom loved women. Its funny how people think negative statements are news worthy but positive statements are not worthy of coverage.

But, it is important in this and other contexts that consequences, even if a direct intent is not present, matter. This can be seen in the context of our criminal justice policy (some interesting comments there, including on the fray), which can be racist in effect, even if they are facially neutral. A prank can be worse if done against someone particularly at risk as compared to someone else. Filming sexual acts can be an invasion of privacy, but certain types of acts are likely to be more harmful. The same applies to certain types of speech. Again, this is just not a criminal matter.

To toss in a political comment, this underlines why I find it hard to accept that allegedly neutral/independent sorts are able to support Republicans. As the hosts note, Republican after Republican say that homosexuality is a choice, a bad choice and are loathe to support anti-bullying legislation and programs. I can see how people can support various causes that are wrong-minded, but these are nasty people and/or those who aid and abet it. The Phelps clan can be scorned as gauche, but who at the end of the day is more dangerous? More hateful?

Million dollar judgments against them won't stop the hate and suicides. This is why the hosts are firmly on the side of free speech in the Phelps case, particularly since their side was targeted for causing emotional distress outside of churches and so forth. And, bottom line how extreme was their p.o.v.?

Playoff Baseball: Error Rich (Ump or Player)

It looked like the Giants would go up 2-0 but two errors (one helping their ace closer to blow things) plus not taking advantage of a bases load situation did them in. Advantage Braves now though the closer had to leave. But, unlike the Mets, the Braves might handle that.

Quick Thoughts

Six errors, four by the Reds. Losers. Meanwhile, the Supreme Court released some audio per their new policy. Listened to the Phelps case. Good stuff. The "private figure" question in emotional distress cases might be the reason for cert. since it has not really been covered.

Almost Evenly Match Game

After five mismatches (the Twins toying with us a bit), there was something of a good game last night when the Giants beat the Braves 1-0, though the one run was perhaps aided by (a now totally unsurprising) questionable call. Four or five game series?

Health Care Reform Act: First Ruling

And Also: The Rays are playing as badly as they did against scrubs at the end of the year while the Yanks continue to play with the Twins in the playoffs like a cat plays with a mouse.

The first lower court ruling on the "Health Care Reform Act" (so hard to say! must use "Obamacare" instead; simply for the brevity ... no other reason, really!) was handed down. One charm is that it is brief (twenty pages of indented discussion, half on standing that can be skimmed over) and to the point. The standing comes because even thought the "individual mandate"* at issue isn't required for years, arguably current fiscal decisions are affected.

Three quarters of the way through, the opinion gets to the heart of the matter. The excerpts below include the core arguments and a summary provided by the court as to how they apply in this cases. I combined them and separated the two by notation:

First, the economic decisions that the Act regulates as to how to pay for health care services have direct and substantial impact on the interstate health care market. Second, the minimum coverage provision is essential to the Act’s larger regulation of the interstate business of health insurance.

[1] Far from “inactivity,” by choosing to forgo insurance plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now through the purchase of insurance, collectively shifting billions of dollars, $43 billion in 2008, onto other market participants. As this cost-shifting is exactly what the Health Care Reform Act was enacted to address, there is no need for metaphysical gymnastics of the sort proscribed by Lopez.

The plaintiffs have not opted out of the health care services market because, as living, breathing beings, who do not oppose medical services on religious grounds, they cannot opt out of this market. As inseparable and integral members of the health care services market, plaintiffs have made a choice regarding the method of payment for the services they expect to receive.

[2] The Act regulates a broader interstate market in health care services. This is not a market created by Congress, it is one created by the fundamental need for health care and the necessity of paying for such services received. The provision at issue addresses cost-shifting in those markets and operates as an essential part of a comprehensive regulatory scheme. The uninsured, like plaintiffs, benefit from the “guaranteed issue” provision in the Act, which enables them to become insured even when they are already sick. This benefit makes imposing the minimum coverage provision appropriate.

Thus, the unique nature of health care in particular make the "inactivity" here really just a play on words, since people aren't really being "inactive" at all, but making active decisions that significantly affect matters of interstate commerce that the Congress can control in this fashion. This includes via a penalty added to further the end:

Congress is authorized by the Commerce Clause to impose a sanction “as a means of constraining and regulating what may be considered by the Congress as pernicious or harmful to commerce.”

So, this is not an illegitimate "direct tax" either. The argument is not dwelt on given the focus on the Commerce Clause, but it also isn't a direct tax (I would add) because it is an excise on the "activity" in question. A "direct tax" is truly a tax on inactivity, particularly on a person (the main concern was slaves here, but a blanket poll tax can be deemed one too) and land.

Finally, "inactivity" was addressed before, at least, activity not directly involving interstate commerce. As noted by the ruling, growing wheat or marijuana for personal consumption and not selling to black people were deemed things that can be barred when they significantly affect interstate commerce. And, not buying insurance, particularly given mandated insurance coverage when desired (I would add bankruptcy protections and emergency care), fits the bill.

A good little ruling to start the ball rolling.

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* There are various constitutional arguments, most pretty silly, even (see Orin Kerr and plenty of comments over at Volokh Conspiracy) though attacks on the individual mandate are too. As the ruling notes:

The Individual Mandate requires that each “applicable individual” purchase health insurance, or be subject to a “penalty” or “Shared Responsibility Payment.” The definition of “applicable individual” is “an individual other than” religious objectors who oppose health insurance in principle, non-residents or illegal residents, and incarcerated individuals. The Act, and the Individual Mandate, therefore, apply to everyone living in the United States, unless they are excepted.

The income limits plus the exceptions covering lots of people alone, this only starts to underline the slim "threat" at issue here.

Chokers of the Night: Twins

Twins had their ace on the mound and got three runs (home run/manufactured run) off the Yanks' ace. And, then gave up four in the sixth. Choke. Tied it in the bottom. Gave up two in the seventh. Choke. Lost 6-4. So f-ing annoying. Choking when it counts.

Playoffs

Two whippings, one slipping away as I type. The battle of the aces went the way of Cliff Lee, two errors by TB helping. The Reds avoided a perfect game via a walk, the game basically over before the third. The Twins went up 3-0 but gave up six in the sixth and seventh.

Supreme Court Watch

Listening to Justice Blackmun say "schmuck" repeatedly here in serious tones was something. This is calling really splitting hairs:

I concur in the judgment of the Court though I do not join its opinion. I join Justice O’Connor’s opinion except insofar as it joins that of the Court. I join Part I of Justice Ginsburg’s dissenting opinion, but I do not dissent from the Court’s reversal of the District Court’s decision.

The advocate for Rev. Phelps today in front of the Supreme Court is his daughter, a "study in contradictions." Yes, homophobes do come in all kinds. I'll be sure to listen to this argument when the Supreme Court releases it in a few days per its new audio policy. The information privacy case also sounds interesting, a chance to address what the Court only dealt with explicitly in a few cases (including Whalen v. Roe). As Justice Douglas noted in his Doe v. Bolton concurrence, limits on providing private information to the government has a long history.

See here for some good coverage on both. The latter one might be closely tied to its facts, but disgusting as it might be, I think the funeral picketing case is a slamdunk.* The last account by a senior Supreme Court onlooker underlines the fallacy of suggesting that empathy and passion isn't mixed in here. It also seems a bit ironic that it was the "liberals" who at times tried to be more focused on legal matters, particularly the women among them. Passion is spread out, but the conservatives justices repeatedly are not just concerned about the law, but do so with an edge in their voice. A dry transcript would not give us a full feel of such an oral argument.

Interesting term right out of the gate.

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* The hosts of the weekly advocacy show Gay USA have opposed laws that silence people, even when they voice hateful rhetoric. There is a line where speech becomes harassment, but if these people were protesting in public -- a point made by one of the hosts on this very issue -- how can we silence them? See also, here. There should be no "funeral exception" to the First Amendment. There can be some sort of buffer zone but particularly for funerals of public note, it can't be endless.

[I later said some more about this case in response to a Slate post here.]

Post Season Begins

But, first, the Mets fired their GM and didn't re-hire the manager. With Santana due to be out or subpar for months and overpriced dead weight blocking major signings, the best thing to do is to get rid of the weight and start fresh. Let's see what happens.

Low bar alert

Scotusblog and Volokh Conspiracy referenced accounts that suggest Kagan did a good job yesterday. Who would think a law professor appointed in part for her collegiality would handle Q&A well in two cases she had weeks to prepare for? Some coverage of the cases too.

That Crafty Roberts!

Dahlia Lithwick and co-writer provides a somewhat heavy-handed account as the new Supreme Court begins on how the Roberts Court "disguises" its conservatism. This opens things up for the usual heavy-handed discussions about guns, abortion and so forth. Some of the article however invites such a tone. This is unfortunate, since the core of what they say is often correct. But, the tone and some reflections on the details can close some minds and/or are somewhat misleading.

The metaphor is more than apt. There's another, newer, layer of illusion at work at the highest court of the land. Under the stewardship of its boyish chief justice, John Roberts, the court has taken the law for a sharp turn to the ideological right, while at the same time masterfully concealing it. Virtually every empirical study confirms this rightward turn. Yet recent public opinion polls indicate Americans continue to see a bench that is, if anything, a wee bit too liberal.

The evidence is a Rasmussen poll that says "38% Say Judges Too Liberal." There is evidence, on the other hand, that Rasmussen itself is too conservative and not reliable. But, I don't claim to know all the details there. Still, I need more to determine that "polls" so "indicate." The poll found that people found the Supreme Court somewhat less liberal than judges as a whole:

Just 33% believe the Supreme Court is too liberal while 27% say it’s too conservative.

A telling number, I think, since people don't actually know much about judges as a whole, even less about those not on the Supreme Court. Anyway, with a +/- 3% in accuracy, this would suggest that people have a certain Goldilocks opinion -- a third think they are just right, and the rest are about split on too hot/too cold. Calling Katy Perry.

Again, since people are not too aware of what the courts actually do, I don't know how much Roberts has to "disguise" his conservatism. Off bench indicators and influences probably have as much of an effect here. People can be sort of selective about how they see the federal government.

And, the "tricks" are not novel. An upcoming bio on Justice Brennan will show "shrewd" tactics like choosing an appropriate person to write the opinion (it's an old trick, e.g., in 5-4 cases to have the shaky justice write it), take a case with "attractive facts" (this was done in the New Deal -- both to find nefarious and innocent exercises of federal power), have a "win" that on its reasoning is actually a lost for the other side in various ways, etc. have been around for some time.

This doesn't suggest that Roberts isn't a talented "magician" in various ways. The most talented Chief Justices over history tended to be so from John Marshall on down. It belies his "we are just umpires" b.s., though, which makes what he is really doing look more nefarious. A Justice Breyer can upfront talk about judicial capital and all that but that sort of thing will ruin Roberts image, since he is not supposed to be so -- yucky -- pragmatic.

Happy First Monday, y'all.

Giants Defense Strikes Again

Back in the day, the Giants relied largely on defense. Last night's game had a throwback feel on that level, knocking out two quarterbacks, and basically leaving the Bears to give up with 2:30 left. There was some offense, but it still often wasn't pretty.

More Sports

After tying it late (shocker), Colts lose via a 59yd field goal. Padres can't get that last win. Few points in the Second Half, but Vick out earlier, Redskins hung on. Barely. Two football games left, lots of playoff baseball. Go Rangers/Twins and Reds/Giants. Perez? Really?

More on FNL and Other Sports

FNL: Watching the second half of Season Four again, I probably appreciated parts of the season finale (though not the Tami stuff) a bit more than the first time around. It still felt a bit more about tying up loose ends, but there was some good stuff there. Also, though I'm not as emotionally attached to him as Matt (or even Jason Street), the full season did show that Luke is a good character. He has various moments, including related to the abortion subplot (both with his parents* and Becky). And, even Mindy (Tim's sis-in-law) had some charm.

Baseball: Various teams limped into the playoffs, including Tampa Bay (tying in the ninth today / winning it late but Yanks' loss clinched first, though winning against Kansas City twice in the first three games could have done the trick) and Atlanta (hoping the Giants manage to win a game this weekend to avoid overtime baseball). The Mets, this is f-ing insane really, pissed me off, ended the season with -- get this -- a Perez loss. In the 14th, with relievers like Dessens unused, Perez was sent out there. He got one out, walked three, hit a batter and gave up the winning run.

And, then the starter from Friday came out and got two outs. I'm sorry. This is a FU to the fans. Am I the only one to think this? Again, almost the LAST THING the fans gets to see (clinching fourth place and 79 wins, though that took some more Mets non-hitting in the bottom the frame -- maybe, they just wanted to get the heck out of there) is OLIVER F-ING PEREZ do that, and he isn't even the last pitcher out there. Please, GET RID OF HIM NOW!!!!!!! It's the last day, I doubt many want to see that guy, and there were other arms to use for at least another inning or two. What are you saving them for? Bye Jerry.

Football: Four teams are 0 and 4 ... three of them had a decent shot at winning against superior teams today. The third, the Bills, kept the Jets somewhat close with an end of the First Half TD (the 17-7 score was closer than it could have been), but did little else, getting shellacked in the Second Half. The Browns did manage not to be 0-4 and a couple other mediocre teams managed a second win. [Browns position corrected.] The Redskins/Eagles match-up is 17-6, Redskins at the Half. So, some good games going on today, though less upsets than there could have been thus far.

Oh well. Giants up 2-0 for that last spot mid-game. I think Citifield fans are still booing Oliver Perez. I think his '06 playoff heroics might be officially dead and buried now. The other Giants play the Bears tonight with a promising to be good Patriots/Dolphins game tomorrow night as well.

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* The first episode I watched is the one in which Becky gets her abortion. But, though the episode shows Becky interacting with various people here (and the episode is in fact mid-story arc), there is a lot more to the plot. Luke and Vince have major scenes, and not just about one thing. And, there is more stuff as well, all done rather well. It was a good first episode for me to watch.

A model for conservatives?

In the end, this is a valuable account. Hezbollah has found a supple and sophisticated extremist formula — the combination of social services, an aura of incorruptability, jihad and inspiration — that can and may well be replicated throughout the region. It also represents an alternative value system, popular and horrifying, to the freedom proselytized as “God’s gift to humanity” by George W. Bush. As such, Hezbollah, sadly, may prove over time to be the strongest indigenous response to the colonial hubris visited upon the Middle East by Western powers since the end of World War I.

-- Book Review

It is a good m.o. and trying to suppress them without providing an adequate replacement is folly. I also can understand if some conservative entity in this country (see, e.g., here) impresses people, even if I find their ideology dubious (at best). In fact, another article in today's paper showed this in regard to the head of Hezbollah itself. This also works for progressives trying to get a foothold in conservative areas. Being a blue dog tool is not the only path. The poisonous ideology (if one that is bent in certain cases) is still there, sure, but the "tool" part is unnecessary.*

But, repeatedly, I shake my head because this isn't the case. Do people SERIOUSLY want to replace Pelosi (a totally credible Speaker, if someone you can oppose on ideology) with the current alternative? I mean someone even halfway neutral about the politics of it all? Efficiency alone is lacking there. Must be that drink sand thing that was referenced about desperate people in American President. The need also suggests progressives (and greens and whomever) should work at it too, there being various cases where some seat is open with the right person and approach. Some token loser or dubious Tea Party style extremist is not the only approach here on either side.

Meanwhile, the co-writer of a book on red/blue America, Naomi Cahn, previously wrote Test Tube Families: Why the Fertility Market Needs Legal Regulation. It does a decent job covering the subject, but it is a bit hard going for the general reader. Still, it is not written in such a way only some specialist could appreciate. Bottom line, a rich area for research and legislation, plus an area where the courts have a very important role as well. Worthwhile middle of the road approach here.

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* I'll make a FNL reference. The charm of Tim Riggins is suggested by a scene where Becky is blabbering on about true love. He tells her to shut up, but not in a mean way, adding "please" to it.

NY Mets to Fans: There's Always Next Year

Rumors that the GM and manager will be totally gone soon are okay, but why not ensure a few players will go too? Anyways, Valdes pitched in both games of a doubleheader and started a few days later: all pretty well. Mets have a shot at 80 and 3rd. And, 3 races still open.

More on FNL

Slate had an ongoing conversation going on (ala the "Breakfast Table") about FNL for the last two seasons, so it is not surprising that a lot more can be said about the first half of last season alone. Just watching the episode after Matt leaves (or parts of it) brought up made things to say. This is the charm of the show: it has so many layers and moments. The actors, writers, camera work (you can see the grainy nature of the hand-held cameras) and more all are involved here. As I said, the opening music (and montage) is key as well.

For instance, a minor character from the team, Tinker, has a few good moments in that episode with Luke in the cafeteria and later helping him fix his fence, since Luke (who had to go to East Dillon since Buddy ratted him out to Eric, the whole school issue also a subplot) was a good teammate. Helping him here is helping the team. The team is a major aspect of this show, including Eric's role as a leader of young men. Football is a sort of religion in Texas [see also, Whip It, where a lawn sign for the player who lives there played a part as well] and the reaction (in public and private) of Vince when he is made quarterback underlines a reason why. As does Tinker helping some white kid fix a fence. And many more things. I say this as a fan too.

One important aspect of the show is its addressing of class and income. Tami confronts a funeral director who was charging Matt's family a few more thousand than necessary -- for some, that would not be an issue. It is for him. Luke's dad had to keep him out from school because of lack of funds to pay for help. Tim's brother repeatedly broke the law to have money for his family (in particular, his new wife and upcoming kid). Maybe if we had real health care in this country, caring for his pregnant wife wouldn't be as perilous. High school jobs weren't just for pocket money. And, we see the differences of funding for East and West Dillon.

There are as noted a lot of good moments and interactions, including stuff like Matt's internship with a talented but somewhat loutish local artist. Him about to berate him for upsetting Julie but then staring in awe at a sculpture he made was a powerful moment. Tami dealing with various conflicts. Matt's proposed eulogy: "Here lies Henry Saracen. His mother annoyed him. His wife couldn't stand him. And he didn't want to be a dad so he took off in the army, because that's the only way he could come up with to ditch all his responsibilities." Becky's mom berating her dad on the phone: "I don't care if you're hauling pieces of Jesus' cross back to Bethlehem." The goofy assistant coach asserting himself when the Dillon QB harassed his players at Sears. And, those freckles -- Tami and Julie are both so cute.

I will probably say a bit more about the abortion subplot but one additional issue last season was race. East Dillon is a primarily minority show, and as the Slate discussion notes, that means black here. [There was an earlier incident that also addressed Matt's new role in the team at the time involving a Hispanic player alleging someone called him a wetback, when it was in fact another black player.] There does appear to be Hispanic players, but that is one issue the show does not address too much, though Buddy going to the Spanish radio station underlines that it is an issue. The show is on dangerous ground with a possibly stereotypical character like Vince* though Jess (she also had a few good moments in deleted scenes), Tinker and others suggest the complexity there. And, though the Vassar background of his now drug addicted mother is a bit much (so noted Slate, but I missed that tidbit the first time around), I think Vince is handled pretty well in all respects, including the performance itself.

The moment where Eric decides to try to address the needs of a park in a black area didn't work that well. But, the season did cover some ground here, including when former East Dillon players Eric calls in to help doesn't trust him. Showing a possible means of unity, Buddy saves the day, his arrival finding a common denominator based on football (he played on the rival team, but they still respected him for his ability). Landry and Jess had an uncomfortable moment at the dinner they had at his place. It calls to mind the problems Smash had with his white girlfriend, race also being an issue for the team -- recall his boycott over comments made by an assistant coach.

Maybe, we will see more in the fifth season, Tami going to East Dillon suggesting more singular focus on that one locale.

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* Among the deleted scenes, in fact, is one involving him and a friend being taught how to steal cars and later stealing one -- did they want to tone that down a bit? The implication in the finished product was that Vince went back to doing things like that when he (health care alert again) needed money for his mom's drug addiction treatment. The car ring connects with Tim/Billy running a chop shop. These characters are all so interconnected, aren't they?

[I edited this point after finishing this post, adding the Spanish speaking radio bit plus the Sarah Vowell reference to the last post. This just underlines all the different things that can be said about the show. I guess I will just leave it be, knowing more can be said, even on the topics addressed.]