Little Known Constitutional Provision Alert

Debt ceilings are issues for both individuals and the nation these days and as Jack Balkin and others note, paying OUR debts has constitutional significance.  We went down a somewhat similar road with Social Security a few years back.  What's next, the 3A?

No Justice: Token "Looking Back" Edition

This is pretty pathetic. More so that it is more than you expected.

Mets: Ruining the Buzz Edition

 

They also clinched a series win and, at 41-39, rose to two games above .500 for the first time since April 5. This is a team that was not expected to contend, and is still not contending - but it is playing respectably, and enjoying the moment.

What does this modest success mean, and how far will it take this team? It is useful to remember that, exactly one year before Wednesday night's game, the Jerry Manuel Mets were 43-34, and that record did not even represent their peak. They finished the year 79-83, lousy enough to cost the manager and general manager their jobs.

Our point? These Mets have not proven anything yet.

See here and here.  Yeah, okay.  Still, enjoy the moment. 

A Bit of History ...

Who needs time machines when you have books?  Once read Mr. Justice (edited by Allison Dunham and Philip Kurland, both men), a collection of mini-biographies of justices that included a chapter by one Mr. (sic) John Paul Stevens. The edition was published before he was even a federal judge, the library copy so old that it had an old address for the Mid-Manhattan library.  The book had accounts of justices from Marshall to Rutledge (Stevens was his clerk).

I recently also re-read a book, Justice William Johnson: The First Dissenter written a bit earlier than that.  The book is a bit of a trudge at times, but overall, it is an interesting account (focused largely on his career, his family basically disappearing after they came on the scene) of a largely unknown moderate Republican voice on the Marshall Court.  He had a restrained view of judicial power, but also accepted the basic lines of Marshall's view on the Commerce Power.  So much that when a state law infringed upon it (and the treaty power), he strongly rejected it, even it was a law involving black sailors coming from his own state of South Carolina.  He also rejected what he felt was hysteria over slave uprisings in other areas, including cutting back on due process rights.  I wrote the below early in the Bush Presidency.

A bit of history ....

Background: The slavery question was beginning to cause major excitement, especially after the Missouri Compromise.  A planned slave uprising was recently put down, and Charleston, SC strongly dealt with those accused, using special judicial proceedings ... but note even slaves in the heart of the slave South had judicial proceedings, if with limited rights.  Supreme Court Justice William Johnson (a South Carolina slave owner) was upset, since basic rights such as being able to confront one's accusers and seeing the evidence against you were not being protected.  As the proceedings went on, he publicly used an apparent earlier miscarriage of justice involving a slave to serve as a warning.  His fellow citizens were not pleased.  Thus, his sad words to Thomas Jefferson about a year later:

"I ... begin to to feel lonely among the men of the present day. And I am sorry to tell you, particularly so in this place. This last summer has furnished but too much cause for shame and anguish.  I have lived to see what I really never believed it possible I could see, --- courts held with closed doors, and mean dying by scores who had never seen the faces nor heard the voices of their accusers.  I see that your governor has noticed the alarm of insurrection which prevailed ... the best way in the world to make them [the people] tractable is to frighten them to death; and to magnify danger is to magnify the claims of those who arrest it .... strangers are alarmed at coming near us; our slaves rendered uneasy; the confidence between us and our domestics destroyed."

"[T]he governor ... consulted the attorney general on the legality of their proceedings, and you will be astonished to hear that he gave a direct opinion in favour of it. If such be the law of this country, this shall not long be my country."

The governor was concerned abuses occurred, and made such concerns official:

"The rules which universally obtain among civilized nations, in the judicial investigation of crime, are not merely hypothetical, or simply matter of opinion, but the result of the highest intelligence, instructed and matured by experience. They are given as guides, to assist the imperfections of human reason, and to enable it to combine and compare the various circumstances and probabilities, which occur in every case. Few minds are competent without these aids, to develop intricate affections of the heart."

But the state legislature was not pleased, and tabled the move to officially accept his statements. Instead, the state moved slowly toward their extreme defense of slavery, including harsh treatment of black (negro) citizens, such as trying to block entry of black seamen.  Of course, later there was a move to declare that all former slaves could never become citizens.  Congress also passed a law allowing alleged fugitive slaves to be returned to slavery without basic constitutional rights of "persons" (including some who might actually be free and therefore "innocent") put in place. Likewise, whites were harmed, such as not being able to receive certain literature or even to free slaves when they desired to do so.

Currently, another "major excitement" has led to serious threats to basic liberties, and another disfavored group are the primary victims, though in the process everyone is hurt. This includes the distrust and fear (and concurrent ire and desire to strike back) between us and those that are being victimized.  Finally, we are again left with a choice: respect our basic constitutional liberties, in place because of their value in obtaining our true happiness, or continue on a road of oppression toward total disharmony. Remember also, that things didn't look that bleak overall in the 1820s, but that didn't mean the seeds of future horrors were not being sowed.  

Legal Tidbits

After a break, the often interesting Findlaw commentary essays are back.  Another appeals court upheld the PPACA, conservative darling Judge Sutton concurring.  His dubious "not a tax" discussion suggests problems, but this is a big win for supporters.  Inactivity, huh?

Scarecrow and Mrs. King

Watching the various episodes of S1. Well done overall, though too many killings for what amounts to light entertainment. I love Kate Jackson's voice.  I thought it was geared to the calm somewhat befuddled suburban mom here, but she sounded the same elsewhere.

Supreme Court Watch

Final rulings.

I think Citizens United was okay, but today's campaign finance ruling was much more hinky. Kagan's voice comes out in dissent. "Except in a world gone topsy-turvy, additional campaign speech and electoral competition is not a First Amendment injury." I'm tired of simplistic statements of what CU stands for, but whatever this opinion means (and it will lead to more confusion in determining what public financing laws are okay) leads me to think that the critics have some degree of truth in their scorn.  Not that I find it pleasing that each side is spitting at each other. 

It was apparent that a California law that banned the sale of certain types of violent video games being sold to minors would fail, the only question is how badly. Interesting result. Scalia led the way, Alito/Roberts rested more on vagueness, Thomas dissented on his understanding of original understanding's limited protection of minors and Breyer on his pragmatic view that this wasn't too much of a limitation on freedom of speech. The statement that free speech is "principally to protect discourse on public matters" troubles me if it has any bite, but the idea children on their own have First Amendment (and others?) interests me.

Two other rulings, one unanimous (doesn't look that notable), one split various ways with Ginsburg (according to Scotusblog) orally dissenting, suggesting it is of some importance. It concerns personal jurisdiction, which can be important given it determines who gets to go to court, but Breyer/Alito's concurrence also limited the reach of the opinion. The Supreme Court also accepted more cases (such as concerning GPS) and Scalia had a chance to show some spleen in a dissent there. Not that big of a final day, really.

The Supreme Court goes on break and I wait a few months for my annual Cato Supreme Court volume.

"Republican Controlled Senate"

Yes, the NY Senate is split 32-30, Republican. The pro-SSM vote split 29-4. So, let's have a tad bit of perspective here. The old Senate was as evenly split, the balance a handful of conservative Democrats.

Not Cool Blogger Of the Day

Really, David, you are not really leading me to want to read your book. "Joe" responds (masochist tendencies seen in past posts too) here.

Cool Blogger of the Day: Jen McCreight

Boobquake originator and all around charming friendly atheist JM talked about dealing with a condition known as "dermatillomania." She wanted to inform regular readers where she was and also:

Mental health has a lot of stigma attached to it because people are so embarrassed to admit anything is wrong. And frankly, it's silly. We don't tease or shame people for having bronchitis or cystic fibrosis or other physical ailments. And hell, mental health is still physical - the brain is an organ, not some disembodied spiritual puppet master. If we don't mock people for being deficient in insulin, we shouldn't mock them for being deficient in serotonin.

See also, here. Right you are, Jen, and cheers for promoting good sense again. Talking about good sense, she inserts a video as well about how not to behave around women. Common sense. Often neither. That's why we need people like JM here. Right?

Most Charming Glass Eyed Actor Dies

Oh, there's just one more thing...

Memories.

Change Is Possible

Significant and seemingly impossible social and political change happens more often than we think, and it happens more rapidly than we realize.  Even the most momentous change is always possible if one finds the right way to make it happen.

Agreed. Some things stay the same, but things do change over time.

SSM in NY? Yes

Senate approval was the final hurdle for the same-sex marriage legislation, which is strongly supported by Gov. Andrew M. Cuomo and was approved last week by the Assembly. Mr. Cuomo is expected to sign the measure soon, and the law will go into effect 30 days later, meaning that same-sex couples could begin marrying in New York by midsummer.

The world doesn't stop, does it?  

FNL

Ticking down to finale.  The long-haired one is back.  Wasn't they going to take two weeks to decide?  Good to see Becky and Tami get some air time plus Vince's mom stand up for her son.  Some nice bits.  Pleasant enough episode that is symbolic of the season.

Scarecrow and Mrs. King

Another bit of nostalgia for people of a certain age, I passed the first season on DVD in the library.  Fun show.  I actually never saw the first episode and remember wanting to when it was still on.  This would be prime USA "characters welcome" material.  New books on panel.

Reason To Vote Democrat

Most Republican senators say they strongly oppose the [SSM] measure on religious or moral grounds.

Not to worry. Some aren't resting on breaching the First Amendment. Some rest on politics.

Supreme Court Watch

A legal blog has had a series of posts on a recent ruling that gave some rights to those subject to incarceration at civil contempt hearings, in part noting how state courts led the field after the Supreme Court interpreted requirements somewhat narrowly.

Meanwhile, today was another decision day, though a few of the hot button cases (e.g., violent video games) were left to the final week.  The cases today were somewhat less flashy, but still legally important and divisive, the 5-4 split more prevalent than last time. For instance, yet another ruling concerning Anna Nicole Smith was a 5-4 split that struck down on constitutional grounds one aspect of a bankruptcy law. A case on the  Federal Employers’ Liability Act had an interesting split where Thomas was the swing vote, (mostly) joining with the liberals.  A tort case split the Court in more predictable lines. 

Sotomayor wrote a dissent in that case.  She also concurred separately in a Confrontation Clause case (Kagan along with Thomas didn't join a portion of the main opinion, but didn't concur separately) involving lab tests.  The case was important to the extent it sent a signal as to how the new appointees would join the expansion of the rules in that area, the matter still somewhat unclear since she (but not Kagan) suggested the case today was not as open-ended as some might suggest.  Sotomayor also was the only liberal justice who joined a ruling striking down a regulation on use of drug information. Breyer wrote the dissent, suggesting more discretion should be allowed for commercial speech regulation (and, anyway, precedent doesn't require it).  It is notable that Sotomayor joined the more restrictive majority opinion on the point. 

The cases are of some interest but nothing overly exciting jumps out.  I am somewhat annoyed that in more than one case the majority wasn't able to control themselves and not include sections that a majority of the justices were able to join.  The Vermont case is a tad technical, but generally I agree with at least somewhat stricter tests for commercial speech than Breyer would seem to require.  Not sure if this case is really anything to worry about, particularly given while listening to the orals, it seemed the law was in some fashion particularly badly drawn or litigated.  And, if the specific matter in the Confrontation Clause opinion seems somewhat minor, the basic principle of consistency in criminal protections is ideal.

Anyway, even given the last few cases, this term seemed pretty unexciting this time around, the issues of the OLC and so forth more interesting at the moment. See, here and here for a taste why we should be wary about not only the result on the meaning of the WPA regarding Libya, but how they got there. 

SSM in NY?

It doesn't get much uglier than that. Tying the fate of same-sex marriage to unrelated disputes over money should offend New Yorkers on both sides of the debate.

-- Bill Hammond

Maybe so, but it shouldn't surprise them.  Politics is about horse trading and other somewhat unsavory actions, which do not suddenly disappear when really important stuff comes to the table.  Republicans as a class are no big fan of this legislation, even if some would vote for it once introduced or if given free reign.  Their base hates it or at best would not mind if it went away.  And, if it allows them some influence over something they do care about (tax cuts, apparently) or at worst to lead to some religious exemptions and such, they will do so.

The Democrats on some other issue would do the same.  The NY legislature is an equal opportunity political machine.  Has been so for a long time -- the film 1776 joked about it with some degree of truth.  And, we aren't just talking New York here.  When did the Thirteenth Amendment pass Congress? In a lame duck session and Lincoln probably helped pave the way by promising a few goodies for the lingering votes.  The Constitution itself, including slavery, was a compromise where "unrelated disputes over money" mattered.  So it goes.

Marriage is a fundamental right but has traditionally been the discretion of the states.  This includes as it underwent various changes (e.g., women having an equal status, easy divorce laws and other matters that affected the institution much more than same sex marriage* would today) over the years.  So, though ultimately a federal constitutional issue, state by state development is essential here.  Events in California suggest it is only a matter of time there.  If New York joins in, logical since it already recognizes out of state same sex marriage (though the highest court did not decide the issue), it would be a major step forward.  [See here for my comments on why "rights" is one proper way to address this issue.]

The lieutenant governor in this state does not have the power to break ties in the state senate in respect to legislation, so a tie will not cut it there.  The measure already was passed in the assembly.  The vote in the state senate is up in the air, one or two more votes needed.  This is a six or so vote improvement since last time, which is impressive.  The talk is that if voted upon, it will easily get a majority.  Problem is that Republican leadership has yet to agree to put it to a vote.  As I said, this is understandable, but that doesn't mean it lacks ugliness.  Yet again there is more than a dime's worth of difference between the parties.

A reminder of what is at stake.  Loving v. Virginia held that race was an illegitimate classification for marriage, even if interracial marriage burdened both sides. That is, each race having the "equal" right to marry only people of the same race was not enough.  The same applies if the classification is based on sex.  Some argue the problem in Loving was racism while this classification is benign.  As with selective concern for tradition (coverture? not making spousal rape illegal? the latter was true into the 1970s) , doesn't cut it.  Stereotypical sex roles, a major concern of sex discrimination case law, is not allowed either.

Some cheapen marriage by arguing that procreation justifies the [invidious] discrimination involved here.  But a ruling on marriage of prisoners underlined that marriage is important and to be protected even if every aspect of marriage is not in place in a given case.  This lesser known case warrants an extended quote:

The right to marry, like many other rights, is subject to substantial restrictions as a result of incarceration. Many important attributes of marriage remain, however, after taking into account the limitations imposed by prison life. First, inmate marriages, like others, are expressions of emotional support and public commitment. These elements  are an important and significant aspect of the marital relationship. In addition, many religions recognize marriage as having spiritual significance; for some inmates and their spouses, therefore, the commitment of marriage may be an exercise of religious faith as well as an expression of personal dedication. Third, most inmates eventually will be released by parole or commutation, and therefore most inmate marriages are formed in the expectation that they ultimately will be fully consummated. Finally, marital status often is a precondition to the receipt of government benefits (e. g., Social Security benefits), property rights (e. g., tenancy by the entirety, inheritance rights), and other, less tangible benefits (e. g., legitimation of children born out of wedlock). These incidents of marriage, like the religious and personal aspects of the marriage commitment, are unaffected by the fact of confinement or the pursuit of legitimate corrections goals.

Clearly, all married couples do not and sometimes cannot procreate, but that is but one aspect of marriage.  This excerpt suggests the breadth of marriage, which in basically every case applies to same sex couples.  This even can include legitimation of children, which can include legal recognition of the parenthood rights of two same sex people. As another lesser known case (leading Justice Powell to question its breadth given regulations of among other things "homosexuals") noted;

Although Loving arose in the context of racial discrimination, prior and subsequent decisions of this Court confirm that the right to marry is of fundamental importance for all individuals.

The right is personal.  It should not be limited based on the sex or likely sexual preference of the partner involved.  Doing so is wrong since there is no good reason - given the reasons for the state license in question - to fence out people on such grounds.  It is bad public policy and New York should act on that ground alone.  Its courts did not join with those that saw a constitutional (state and/or federal) problem, but there is one there as well.  And, as with other marriage and relationship matters, old ways or norms are not a good reason to do otherwise.  Change occurs there slowly, over time, and we are seeing yet another development here. 

It would not shock me if politics holds up the works here, things all so close.  Hopefully not.  If so, however, the true path is apparent and it is but a matter of time.  

---

* I continue to favor this term for various reasons.  It is what is at stake. The sexual orientation of your partner isn't the issue.  It also focuses on the sexual discrimination going on.  "Gay" even is arguably a problem since it often is limited to male homosexuals.  I realize that gays are obviously a big part of this whole thing, but SSM (it even is a nice acronym) is the appropriate term to use.

Summer

Welcome to summer, a season less ideal for adults who don't like the beach or the heat.  The exact beginning (13:16 EST) suggests the inexactitude of things (and Daylight Savings Time) since you'd think it would occur at noon, given the whole evenly divided day thing. 

Life on Top and Jane Austen

I have referenced this show already, perhaps partly to note a supporting character that charmed me in such films as The Devil Wears Nada (her personality, that is; her body is fine too, but it's her personality and humor that is particularly notable). My latest satellite package ("cable" no longer fully accurate) brings with it lots of channels, including some that has late night soft porn.

Most is pretty forgettable, but as with other pay channels, there are some shows and so forth of some note. Life on Top and Lingerie included. I earlier, in a brief form of this entry, referenced the first episode of the title series. I also saw the first episode (as with other shows, child, teen and adult, the episodes are replayed often) of Lingerie. More so than Co-Ed Confidential, though that has some charm, some of the characters on these shows are interesting.

Suffice to say, long form, soft porn needs more than breasts. That's said in part since that is the most evident thing, though other parts of the body (though rarely front male ... watch prison shows for that) are seen. One thing not seen is bodily fluids. This includes sweat. These people have sex at a drop of the hat, put their clothes back on (it helps, of course, that the women tend not to wear bras ... and not only because they are too small) and go about their business. The reference to a condom (even showing it) in the Life on Top premiere is as rare as a reference in the movie cited above of a character still smelling of sex.

The series premiere of Life on Top put some effort in making us care about the female characters (Lingerie has more focus on males, though the leads are women; btw, I notice many teenage Nick/Disney show lean female, while many animated shows lean male -- very few female characters, e.g., on Bugs Bunny), who also have some acting ability. It might be assumed that acting is not the point here, but for series television (and for some, even films), it does matter. The first episode even had one of the characters lead her partner in sex (that is, tell him to "go slower") while her sister had a sexy bit of foreplay in a car.  [I saw the third episode last night and it had a quite acrobatic sex scene that looked like it required some choreography to accomplished.]

These type of shows/films rarely have such context and lack something in the process. The "Bella" (and "Regina" aka Brandin Rackley) of Life on Top were also in a few soft porn films that are basically take-offs of other films. They are amusing ... when you aren't really expecting much, a bit of something means a lot. I guess it might be a matter of taste, but in this area, I like a bit more than soft porn sex with cheap music and a 50/50 shot (at least) of fake boobs. Tiresome. Might have to see what Disney/Nick re-run is on instead. Seriously, a bit of "pillow talk" and character goes a long way.

These shows have some, though watching a few episodes beyond the pilots, not enough. Still, the acting and writing is pleasant enough to be worth a look some night. It brings to mind a show from the 1990s (a "Desperate Housewife" was in the cast, long before she was that well known) called Bedtime, a cable soap opera with some explicit sex. I will now shift gears.

A re-viewing of The Jane Austen Book Club took place about the same time I tried Austen's first book (if one released after she died), since it seemed to have amusing elements and was pretty short. I was somewhat disappointed with it, since it didn't seem to focus enough on the "abbey" of the title. Persuasion kind of felt the same way -- after the lengths of the other books (and I have not yet read her longest, Emma), it seemed a bit too abrupt. The satire of "abbey" was not given enough attention in my opinion and too much of it took place at Bath.

The charm of her writing is her felicity of expression, the emotional lives of some of her characters and (often in particular) the many boobs and knaves among her casts. Like in many an adventure story, the good guys often aren't what makes or breaks things. It is the flawed characters, particularly the bad guys (or girls). Austen has lots of them and they are very fun. Looking at a collection of "her other writings" (including unfinished books), notes Jane herself took underlined the point. She lists various reactions to Mansfield Park, and many don't really like Fanny Price, one person thinking her "insipid," another "could not bear" her. Edward also got a mixed reaction, such as "cold and formal."

Austen's works are a social commentary of her times and she clearly finds much to fault in society, though she shows a certain "Tory" (one biography notes she was a loyal Tory) respectability. One source noted that she felt for Fanny, a bit of a dull sort who couldn't bear a somewhat racy (involving an unwed mother) play to take place while her husband was away. The notes cited shows many at the time liked Pride and Prejudice better while some even wanted Fanny to marry some lively young cad type that underwent a change of behavior once he fell for her. She had only one true love and when the love is respectable, the Austen way is predictable.

Austen had a limited range in her novels (an unpublished early work, Lady Susan, suggested she had the potential to focus on a more flawed character) in that sense. Pride and Prejudice was not only lively but had the most independent young woman character (though published later, in an early form, it was written years before) as well as the most interesting male one. Darcy fell for Elizabeth and though we read mostly about her family, he has a special role.  His emotional center of gravity fell apart and we get more of a sense of his inner feelings than male characters in other works.  More so than an Edward in Mansfield Park.  Again, I have yet to read Emma, which might be worth noting. Unfortunately, unlike her siblings, Jane died fairly young, so we did not see if future novels would go past the Fanny/Anne quiet heroine role.

I will comment on Emma (the source material for Clueless) when timely as well as whatever biography I choose to read. It is noted that Jane Austen's writings (including letters) are online, since even ridiculous modern copyright laws don't go back to 1817. Also, Becoming Jane -- not to be taken that seriously as biography (well, at least, with a large grain of salt) -- was pleasant to look at but around 1/2 way in, I got bored.

[Update: The commentary track was done in such a plodding way that it too was tedious.  I do think the lead, who actually wrote a thesis paper on JA, was pretty good. The film as a whole didn't do it for me, though.] 

Supreme Court Watch

The end of the term is approaching, but there was some degree of unity in the cases handed down today. There were some interesting splits, generally in reasoning, that will be the focus today.

In the one case where there was a full 5-4 split, ruling on the issue if there is "a right to appointed counsel for indigent defendants facing incarceration in civil contempt proceedings" [update: or, if not, what is necessary] in certain cases. Roberts/Alito didn't join the section of Thomas' dissent [on why his ethic issues aren't the same as Fortas', see my comments here] that rests on original understanding.  They also didn't join a section that was concerned that the majority opinion's balancing test "does not account for the interests of the child and custodial parent." The majority did cite "any countervailing interest" factored in the analysis.  It isn't clear how important this matter was to the ruling and Roberts/Alito very well could have thought it unnecessary to deal with the point.

The Supreme Court unanimously held that class in a major Wal-Mart gender discrimination suit should not have been certified, though four (via Ginsburg) would have done more to leave open an alternative route.  This case has received a decent amount of press (see, e.g., Slate or Democracy Now!), but it is not really that surprising that the broad claim that tried to bring in so many people failed. As with some other rulings this term, some will find this a very troubling development, but not sure how bad it is, long term.  Devil in details.

An attempt to use the federal courts to bring broad environmental claims that the EPA would logically handle was rejected, not surprisingly.  Sotomayor recused (it was from her old circuit), the Court was split on standing, the lower court upheld by an evenly divided court.  On the merits, Alito/Thomas felt obligated to remind people they disagreed with an earlier ruling, but since each side assumed its legitimacy, they would go along with the majority.  I find such a thing a tad bit gratuitous but it is a way for justices to continue not to respect precedent they find particularly wrong in some fashion. 

Kennedy wrote an interesting Petition Clause case that unanimously (Scalia and Thomas not agreeing with all the reasoning)  rejecting the claim because a public employee was involved and the petition was not a matter of public concern.  Scalia didn't want to accept that the clause applies to petitioning the courts, noting the matter was only cited in dicta (one case written by Justice Douglas, singled out by name, which is um interesting) .  Thomas said he basically agreed with Scalia's comments but brought up some other reason to rule as the majority did, yet again figuring out some idiosyncratic reasoning ala Stevens might.

Scalia's opinion has more than one interesting bit of reasoning that comes off as assumptions.  For instance, "a pre-existing individual right" like this one "means that we must look to historical practice to determine its scope."  Is the rule different for other constitutional rights? Why?  Also, when is "core" aspects not the right question (possible hint: when you aren't writing a compromise majority opinion?)? Scalia honestly notes that various scholars have refuted his stance on petitioning courts. This only reaffirms the limits of "original understanding." He also thinks saying the clause largely deals with "personal grievances" undersells things, but as the majority notes, many petitions (e.g., against slavery) were quite "public" in scope. 

Scalia actually dissented in part. I don't think "there should be no doctrinal distinction between them unless the history or tradition of the Petition Clause justifies it" (when the text doesn't clearly compel) is the reason, but am inclined to agree that a "public concern" limit to bring claims very well might be a problem.   But, the partial opening Scalia would allow in this case is barely discussed and not really taken too seriously.  It is basically since the other side didn't bother to dispute it.  So, I don't know how much value it really provides at the end of the day.

A few big cases, including involving video games, forthcoming.

Drop Dead Diva

The premiere had some cute moments, including a nice opening musical number and "gotta love Stacey" stuff.  Kim also continues to be someone you can root for.  The law stuff is still a bit weak. Will Grayson really marry? Decent start.  This quote got me a few hits.

Pet Peeve

The inability of some to see your point of view. It is not about disagreeing. It is about not even appearing to try to understand or respond to your arguments. Often done with an attitude or general clueless tone.  We are lost if we can't even truly discuss things.

Persuasion

This is Austen's last completed novel and is shorter than all but one of them.  Has various good Austen touches, including flawed supporting cast and some of her strongest emotional touches.  Story is not as extended as her best. Middle of the road Austen, perhaps.

FNL

I saw that Season Five is already in the library, but will hold back until I see some more on regular t.v.  The set has various extras, including commentary, so should be good. The episode this week was okay with Matt, I mean Luke, getting the victory.  Four episodes left.

Empathy is part of judging

The same day the Supreme Court (7-2) didn't apply the exclusionary rule to certain cases on appeal,* they ruled 5-4 to consider the age of the person when trying Miranda cases. Dahlia Lithwick used this to support "empathy" in judging. I'm not sure if it is the best example, but perhaps it is a decent one. I provided the below reply in the fray.  I have dealt with the issue of empathy in judging a few times already, but since it is repeatedly used as bludgeon in court fights, deemed "liberal" when so done, a periodic reminder seems appropriate. 

An article cited by Lithwick notes:

If anything, Obama’s comment was more neutral than Roosevelt’s. Roosevelt twice used “sympathy” which connotes identification with, or bias toward, another. “Empathy,” Obama’s misconstrued word, simply implies an understanding of, and sensitivity to, the feelings or experiences of another, not any predisposition in favor.

As Justice Blackmun once said:

There is another world "out there," the existence of which the Court, I suspect, either chooses to ignore or fears to recognize.

This is not a "liberal" or "conservative" world in any given case. The "common sense" or "grim roster of victims" (to quote Scalia and Alito in the recent California prison crowding case) the judge takes note of can be of a conservative variety. Each judge brings his or her own experiences and perspectives, which is the value of having multi-member benches as much as twelve jurors. This fact, as with Judge Walker being in a same sex relationship, doesn't make them unable to uphold their oath to evenhandedly apply the law. But, judges are not machines. They bring forth points of view. They bring with them human empathy, which is part of how they do their job.

We should be careful to take such judging purely on face value, as a simple application of the law, full stop. Such simplistic compulsion led judges to say that Dred Scott was merely what the Constitution demanded, human sympathy notwithstanding. Alito in dissent in the case here:

a "core virtue" of Miranda has been the clarity

Meanwhile, in a Fourth Amendment case he wrote that was released today:

When the police exhibit “deliberate,” “reckless,” or “grossly negligent” disregard for Fourth Amendment rights, the deterrent value of exclusion is strong and tends to outweigh the resulting costs. Id., at 144 . But when the police act with an objectively “reasonable good-faith belief” that their conduct is lawful,

All quite "clear" concepts, unlike taking into consideration the youth of the person interrogated! Lithwick again:

Therefore, she explains, "a reasonable child subjected to police questioning will sometimes feel pressured to submit when a reasonable adult would feel free to go" and that—empathy alert!—"such conclusions apply broadly to children as a class. And, they are self-evident to anyone who was a child once himself, including any police officer or judge."

Empathy or a reasonable approach to the question? But, "reasonable" is not a dry affair, without context or spirit. A spouse or friend who cries "be reasonable!" speaks from a certain point of view and position that the person s/he is trying to convince might simply not accept. A certain understanding that results in them being on a "different wavelength," which might explain how sometimes around here I simply do not seem to be "got" by some people (and they feel the same way, vice versa). Some understanding of another p.o.v., some ability to stand in someone else's shoes, some "empathy" is necessary to be able to even possibly reach some common ground.

It is also necessary to judge. How to properly balance the evidence and determine reasonableness which requires applying rules to people unlike yourself? You need to understand the experiences of others. You need to empathize. As Dahlia notes, each justice does it. As they should. The charade that it is somehow illegitimate was but one annoying aspect of recent Court nomination hearings.
--

* I respect the dissent, but can't get too worked up over not applying exclusionary rule guidelines not even in place (except in the ether as part of the Constitution) when the event occurred. The troubling part of the ruling really is the continued use of anti-exclusionary rule rhetoric and it is a small favor, if appreciated, that Sotomayor (but not Kagan) concurred separately.

She not only avoided the rhetoric but suggested the rule set forth is even narrower than possibly the case (see dissent). This plus (unfortunate) precedent makes the decision not that bad. The rhetoric is the true problem. And, Sotomayor's concurrence also suggests the "Obama's justices will help the burial" of the rule is a tad overplayed too.

Glenn Greenwald Tweet: Oh Shut Up

Anthony Weiner was forced from office, but George Bush & Dick Cheney - torture, illegal eavesdropping, 100,000s dead in Iraq - weren't.

Yeah, a lowly member [OTOH] of Congress is more disposable than the president and vice president in part for stuff Congress authorized (especially Iraq). Meanwhile, Bob Herbert accepts reality.

The "little bit pregnant" defense

Libya Edition. Yeah, don't really buy it.

Pride and Prejudice

My original review is here; I listened to the commentary track recently and enjoyed it. The movie is fairly loyal to the book though a few things are passed over largely to fit into a theatrical release.

Gay Rights: Good News Comes In Threes

The path to marriage equality has advanced in various areas of late. A bankruptcy ruling, a rejection of a Walker recusal claim and (best of all) a step closer to marriage equality in New York suggests sometimes good news comes in threes.

The basic sentiment of the recusal ruling is that being in a same sex relationship is no less a barrier to deciding the issue than being a woman would be when their equal rights were at stake. A judge can be trusted to do his/her job in such cases and beliefs otherwise are "unreasonable" under our system. A claim otherwise might need not be deemed "appalling" to be shown to be weak.

The basic rule put forth:

The fact that a federal judge shares a fundamental characteristic with a litigant, or shares membership in a large association such as a religion, has been categorically rejected by federal courts as a sole basis for requiring a judge to recuse her or himself.

Thus, another ruling held that "recusal was not warranted ... in an action brought by an abortion clinic against protestors of the clinic where one of the presiding panel judges belonged to the Catholic faith." Also, the claim of appearance of bias rests on "assumptions about the amorphous personal feelings of judges in regards to such intimate and shifting matters as future desire to undergo an abortion, to send a child to a particular university or to engage in family planning."

The judge in this position is in the same position as "the general public" and the alternative ignores that when deciding such questions ultimately as a legal matter, "we all have an equal stake in a case that challenges the constitutionality of a restriction on a fundamental right." The heterosexual could be as concerned if s/he thinks the law is acceptable as a way to protect marriage. I would add that some possible personal factor added only underlines the value of a diverse bench, just as sexuality shouldn't lead a person to be unable to be on a jury deciding an alleged hate crime.

To single out Walker might not rest things on sexual orientation alone but still ultimately rest "on the sole ground of Judge Walker’s same-sex relationship.” After all, there was no evidence of him planning to get married (this alone underlines why the claim was weak as applied to this case though in some theoretical case, the matter might be less easy) and a person in a different sex marriage can have concerns about the law as well. Such a de facto focus on personal characteristic has been rejected.

Some might have a kneejerk feeling that it is not totally off or bigoted to think Walker could not avoid an appearance of impropriety. But, it is hard to imagine such a rule would be truly applied evenhandedly. Any number of cases involve rights that might benefit the judge as well as the general public; did the judges in the Connecticut contraceptive cases have to lack an interest in using them? The logic of Prop 8 suggests the different sex judge (especially since the rules apply to something that involves a spouse and minor children) would be interested, since the law is "necessary" to protect their marriage or the safety of their children.

The bankruptcy ruling underlines the breadth of anti-SSM rules in place, including many federal rights that are reliant on different sex marriage. If you don't want to call it "marriage," what interest is there to deny bankruptcy protection to same sex couples, particularly if you do accept they can have "civil union" benefits. The chance that a few final votes will be found in the NY Senate (and the new governor is pressing the issue without having the weak hand of the old one) would mean a major success particularly given the likelihood California will follow in one way or the other within the next couple years.

I have a personal stake given my own state is involved. I recall the days when DADT first was an issue and Hawaii led the way on the idea of SSM. My access to the Internet wasn't the only things that changed and continue to change since then. Progress is not always in a consistent direction, but on this issue, remarkable changes have come to pass. More will follow.

Flag Day

Happy Flag Day!

Two Women

Netflix's dubbed version is a bit annoying, but it is done pretty well, though a bit of the dialogue doesn't work. As a whole, very good Sophie Loren. I was a bit surprised the rape came so late; the post-rape stuff seems a bit too brief.  Overall, powerful stuff.

"Justice"

Jesus answered, “You are right in saying I am a king. In fact, for this reason I was born, and for this I came into the world, to testify to the truth. Everyone on the side of truth listens to me.”

“What is truth?” Pilate asked

- John 18 (NIV)

There's justice in the barrel / Of a loaded gun

- Bon Jovi

What is "justice"?

Is it based on the "justice system" so that President Obama misused the term when he said OBL being killed ("shot in the head") was an act of justice? The use of rules of engagement, targeting someone who otherwise under the rules of armed conflict could be killed (not just a random "bad guy") and taking into consideration other issues (like his ability for years, if desired, to surrender to Pakistan officials, if desired) would not change this. It might be "moral" or "acceptable," though some think not, but it isn't "justice."

[I reference in this discussion arguments made in a few posts over at the Jurisprudence Slate fray.]

Wikipedia says:

Justice is the concept of moral rightness based on ethics, rationality, law, natural law, religion, fairness, or equity, along with the punishment of the breach of said ethic

Does "punishment" here only means via the court of law (here or in the hereafter)? Dictionary.com (if helpful) says this:

1. the quality of being just; righteousness, equitableness, or moral rightness: to uphold the justice of a cause. 2. rightfulness or lawfulness, as of a claim or title; justness of ground or reason: to complain with justice. 3. the moral principle determining just conduct.

Merriam Webster leads with the "the maintenance or administration" of a system that is "especially by the impartial adjustment," but this doesn't limit ourselves to the courts. When someone says "no justice, no peace," will peace only come in court? One example given:

We should strive to achieve justice for all people.

This brings to mind "social justice" as one activist promotes here. This usually doesn't just mean, though it often does partially mean, use of the "justice system," either criminal or civil. And, sometimes, the justice system, even run fine, is seen as patently unjust. The justice system, e.g., could protect slavery. Does this make the Fugitive Slave Act "justice"? And, if you seek out such "natural justice," where do you seek it out? It need not merely by the heavens as the UN Declaration of Human Rights, signed by secularists too, assumed as a given:

Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world

Justice? This board is limited to "jurisprudence," which seems limited somewhat, but broader themes and senses of justice pop up here too. As Victoria Justice says, it is "not so easy" to determine what the word means.

Somewhat Missing The Point: Example Infinity

And Also: Invasion of the Bee Girls is a fun (and pretty explicit) "B" film from the 1970s that was well worth the Netflix viewing.  It had a surprisingly powerful almost rape though Rabid had a more consistent look at societal reaction to some disaster.

Today, the Obama administration is aggressively pursuing leakers. Bradley E. Manning, an Army private, has been imprisoned since May 2010 on suspicion of having passed classified data to the antisecrecy group WikiLeaks. Thomas A. Drake, a former official at the National Security Agency, pleaded guilty Friday to a misdemeanor of misusing the agency’s computer system by providing information to a newspaper reporter. 

The tension between protecting true national security secrets and ensuring the public’s “right to know” about abuses of authority is not new. Indeed, the nation’s founders faced this very issue.

Such began an op-ed, "The Whistle-Blowers of 1777."  The whistleblowers there petitioned Congress concerning a powerful military official that they said "treated prisoners in the most inhuman and barbarous manner,” which has topical relevance.  They were sued for libel.  The suit failed and Congress eventually passed a law setting forth:

That it is the duty of all persons in the service of the United States, as well as all other inhabitants thereof, to give the earliest information to Congress or any other proper authority of any misconduct, frauds or misdemeanors committed by any officers or persons in the service of these states, which may come to their knowledge.

They also paid the legal fees and released the relevant records for public view. Later whistleblower protections were of a similar variety (putting aside perhaps the legal fees, though some result in some fiscal reward), including protecting against retaliation. Such things are to be honored as is special care to not use limited prosecutorial resources to deal with whistleblowers as a general matter.  There is no "zero tolerance" rule here, especially given semi-official leaks that go on all the time. 

But, Manning did not give the information to some "proper authority."  Drake did not.  And so on. They gave it to the press. The press is not what the law had in mind. Andrew Breitbart releasing secret material to FOX News is not the issue at hand.  It isn't even the Pentagon Papers, the famous Supreme Court ruling opposing use of inherent power to convict, not total security.  At most, only two or three votes for that was available.  The principle put forth here is a moral one, mixed with a question of discretion.

The example doesn't fit the principle in any real sense.  These people weren't arrested for releasing stuff to Congress; no libel suit was provided to target them.  Are we going to give NSA officials carte blanche, when they on their own so determine, to release classified material to the media (or blog?) of their choice?  The same media those who rail against Obama et. al. (out of some fictional assumption he was some civil libertarian, he of the voting for FISA breaking telecom immunity fame) don't trust to throw a stick at half the time?

Anyway, bottom line, the example is a leap. If the spirit of the op-ed is valid,* the example is not. Going through channels, having a duty to do so, is not the issue with Manning et. al.

---

* The last sentence is true enough:

Instead of ignoring and intimidating whistle-blowers, Congress and the executive branch would do well to follow the example of the Continental Congress, by supporting and shielding them.

Whistleblowers, in private and public institutions, are protected, though probably not enough.  But, giving carte blanche to those who don't go through official channels is a tad bit more complicated. 

Army Wives

The season finale (will be back "Winter 2012," January?) was another good episode, though the Michael subplot was finished a bit quick. It had a series finale feel at times with talk of the base closing and where they might end up. Drop Dead Diva will be back now.

I Spit On Your Remake?

And Also: The iCarly/Victorious crossover movie was okay, a bit more about Carly. The Wingless Bird was a good WWI era PBS drama.

Disturbingly (for those of us guiltily enjoying the bloody payback), it suggests that what happened to Jennifer took away not her sanity but her humanity, leaving a calloused spot where her soul once was. ... The filmmaking is circa 1910, with silent-movie acting to match. I Spit on Your Grave makes people angry, disturbed, depressed (Ebert's word). Of course it does. The camera just stares, refusing to editorialize or to put a stylistic barrier between you and the cruelty. You are there, and you're not doing anything to stop it.

-- Review of I Spit On Your Grave, 1970s exploitation flick

I first saw I Spit On Your Graves years back on VHS. It struck me then and still strikes me now; this is suggested by two reviews posted on IMDB among other things. The opening quote was originally used in a post about "Feminist Pulps," which included this:

The value of certain sorts of popular culture surely is debatable, even if we accept their importance. I Spit On Your Grave, for instance, is one of the more controversial members of the exploitation genre that is often viewed as guilty pleasures. Likewise, the fact that gratuitous nudity in horror films grows out of their reflection of social norms about gender norms doesn't mean they send positive messages any more than the violence in Dirty Harry movies. All the same, popular sitcoms often examine important issues, even if the sitcoms themselves might be pretty trivial on various grounds. And, a look at the comics page of your local newspaper is sometimes more striking than the front pages, and not just Doonesbury.

The subject arose again when I reviewed Descent (a more polished rape revenge flick) and Hard Candy (same, though closer to the original in the spider attracting the fly technique). In the latter, I said this:

The movie turns out to be a revenge flick. Now, I am not a big fan of this genre in various respects. My annoyance though tends to be when the movie simplistically twists our blood thirst and lead us not to care about the mindlessness of the vengeance. Consider Mystic River, an Oscar winner that I personally thought overrated. But, the movie suggests revenge is a dubious transaction. The actual revenge motif by itself seems to me a legitimate question to examine in cinema. This includes those that have exploitative aspects -- we actually see the victims being harmed in graphic fashion, often women -- perhaps most infamously shown in I Spit On Your Grave.

The original is not to be exaggerated as to merit. It is an exploitation film. It, whatever the claimed point of the director, seems to wallow in the rape and how the victim uses her own body to get revenge. It has some ridiculous moments. But, it also has some raw power, underlined by the type of '70s minimalism of music, dialogue and setting (in part, probably because of budget requirements) as well as the fact that we do see the victim has in effect lost her soul. Ebert might have felt disgusted by people in the movie theater taunting and egging on, but the same audience would have done that for a superior film. Others realize the film, also known as "Day of the Woman," as a horror blog by a college aged woman shows via its title, has value.

The remake, which I saw on DVD, was disappointing. The trailer for the original speaks of five attackers, though there were only four, but this one adds a fifth (a redneck sheriff). The original had Camilla Keaton, the actor's granddaughter (though at least one source as I recall suggested some doubt on the matter); this one has a character actor in a bit role. I toss that in as trivia. Anyway, the addition of the extra person, having the lead talk a lot more, a few touches updating the time period (such as her having a laptop and cell phone) and so forth really doesn't add much positive to the film. Some suggested the original star didn't have much acting chops, but I think her overall silence added to the proceedings. A few more sarcastic revenge tinged comments didn't.

I think the lead-up and intermission (after the rape, before the revenge) was done better in the original. A scene in some cuts of the original where the guys talk about the "city girl" was particularly powerful. Jennifer being being harassed by two of the guys passing in a motorboat (sorry fans of the original, not much motorboat related early or late here) not here. For some reason, they cut the scene of her going to church, praying for forgiveness for the sins she will do. And, unlike the retarded guy not being able to go through with killing her in the original, this one has a lame ass scene of her falling into the water, them not shooting at her or anything and then she pops up some time later ready for revenge. The original showed her right after the rape, the horror of the situation clear.

The rape itself is not as explicit as in the original (that really drew things out) and it suggests how remakes often are less gritty these days. The remake of Assault on Precinct 13 or The Taking of Pelham One Two Three both appeared from previews and what I heard about them to have similar problems. But, it's not really necessary to draw out the rape. That's not really the issue here. I do like the original Jennifer. This one seems more like someone out of some WB show. The clip of her walking nude after the rape was briefer here and as unrealistic looking as some stylish show there too. The original was gritter and dirtier. You might feel dirty watching it, but that's the point -- she was abused horribly and her revenge is psychologically understandable if not defensible (for some). The guys are not really much different though again the original set probably did the job better.

The revenge of the original has her trick the retarded guy and ringleader (the latter by having a bath with him!) in ways that turned their use of her around. Since she basically had died inside (the last shot again underlines this more powerfully in the original), use of her body toward this end was understandable. It was not merely some exploitation device though the honest viewer realizes that is part of it. What else is an extended nude scene in a bathroom, including her putting pins in her hair while talking to the ringleader, right before she castrated him with a pair of scissors? The second half of the revenge was quicker, but also turned around an earlier bit of harassment by two of them in a motorboat as well as the desire of one for oral sex.

The sequel does have an original worthy twist, this time concerning anal sex (with a gun) though The Descent probably has the best answer in that department. But, overall, the scenes were stupid. The basic problem was believability -- how did she actually move the guys around to set things up? She didn't need such strength (didn't seem to break a sweat) in the original, where surprise and guile did the trick. The bit where she pretended to be the cop's young daughter's new teacher (the remake gave the family man one less kid) was a nice touch. Still, if you didn't like her using her body in the original as much as she did, fine, but the remake's revenge scenes left something to be desired.

Overall, the remake was okay. As suggested, it didn't have the style of the original and some aspects hurt the overall flow of the film. The lack of a portion between the rape and her starting to gain revenge particularly was a major deficit. The deleted scenes showed that a scene in the church was shot, but that's all that we see even there. The lack here robs the film of a key dramatic element. It is as if The Descent skipped from her rape to her revenge, with her dealing with the trauma of the situation basically off scene or basically assumed. That is quite possible, but that's like assuming grief in a portrayal of tragedy -- the audience generally should see some evidence of emotions, not just take them as a given.

I might not "spit" on this remake, but it is sorta lame.

The past is not that far ago

Gay USA filled the absence of its hosts this week with a documentary about the civil rights bill passed  twenty-five years ago in NYC guarding against discrimination by sexual orientation. Striking stuff.  Sal Albanese was quoted; I do vaguely remember his mayoral run.

Cows: Our Competition?

"the law that sets him free" [HB Mapp v. Ohio]

[This was a reply to this article on the anniversary of Mapp v. Ohio, originally posted here.  Note a few of the petty replies, including some need to bring up shooting OBL in a "sarcastic" way (kidding on the square) that is pretty off-topic and of limited value to boot.  Such a tone is found in other comments on that and other message boards, resulting in a need to be extra careful to in effect be sure not to insult people's feelings. It is pretty tedious after awhile especially since some show no apparent desire to do the same or even seriously consider what you say.]

"The criminal goes free if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence."

Scholarship has suggested that "exclusionary" rules have a long pedigree, illegitimately obtained evidence leading to failure of prosecution. The ends justifies the means was not the rule in a nation where an overly invasive government was a major reason for rebellion. John Adams once noted the spark of the Revolution was a case involving abuse of the warrant power. The cases largely remained local in large part because criminal cases did -- there was much less involvement of appeals courts, particularly federal appeals courts, which back in the day (particularly before the Fourteenth Amendment) had much less chance (or even jurisdiction) to decide upon such matters.

Justice Stevens once suggested the value of such rules:

For at least two reasons, the exclusionary rule is a better remedy than a civil action against an offending officer. Unlike the fear of personal liability, it should not create excessive deterrence; moreover, it avoids the obvious unfairness of subjecting the dedicated officer to the risk of monetary liability for a misstep while endeavoring to enforce the law. Society, rather than the individual officer, should accept the responsibility for inadequate training or supervision of officers engaged in hazardous police work.

The rule is also of longstanding as a matter of Supreme Court doctrine. Justice Holmes in 1920, applying it to the federal government, noted without it:

It reduces the Fourth Amendment to a form of words. The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the Government's own wrong cannot be used by it in the way proposed.

It is not too surprising that a conservative would thus respect such a rule, particularly those who oppose government intrusion in respect to certain clear cases where the law provides a barrier to the government. The ability to use it without making it impossible (in the least) to prosecute also makes it quite reasonable for a former prosecutor to believe so as well.

Finally, Justice Tom Clark (who later wrote an influential law review article suggesting its application to the right of choice over abortion, pre-Roe) also noted in Mapp v. Ohio (which it bears noting that moderate/conservative Justice Stewart also later defended) that the rule was necessary to "the right to privacy" protected by the Fourteenth Amendment. Such a right, along with the exclusionary rule, is ridiculed by some, particularly some who think it was a creation of Griswold v. Connecticut,* but both are more firmly part of our system of liberty than all that.  [A good article on the ruling can be found here.]

Exclusionary rules are found throughout our system. Various things cannot be used, including information discussed in a confessional, with a spouse, a lawyer and items wrongly seized from one's body like a bullet or even one's blood without proper procedures followed. Exceptions are involved in various cases, but limits are the name of the game in all things. Even free speech.

Happy Birthday, Mapp v. Ohio. [June 19, 1961]

---

* Clark was the only justice that joined Justice Douglas' opinion without further comment, three justices also resting on the Ninth Amendment, two others on due process. 

Mansfield Park

My season of Austen continues (I might hit Gore Vidal eventually) with Fanny Price's novel. Fanny and Edward are rather priggish but the Austen charm is here. Fanny Price being pressured to marry by four people was a bit much though. Also, I wanted more of Susan Price.

Glad to see the right to privacy is so important!

[This is a response to Dahlia Lithwick's article on a Florida law limiting doctors' ability to ask patients about guns and put the matter in their charts. The selective concern police answered me here though someone generally conservative (though a doctor, I believe) added a word of reason.]

I am a bit unsure about where to go here. I'm all for "privacy" and respect the rights of firearm owners, so surely I think their privacy (such penumbras and emanations of the Second Amendment are of importance) important. But, I'm also for privacy respecting drug testing, abortion choices, medicinal marijuana, euthanasia choices and so forth and the people supporting this law seem less gung ho about such matters, though I'm sure some will find them copacetic.

Admittedly, I'm not sure how much "privacy" is protected in preventing doctors from asking their patients about matters relevant to the health and safety of their families and making relevant notations in their records. (Push comes to shove, free speech would make the law wrong even the doctor asked the question totally irrelevantly though I do not desire to settle every possible scenario here.) The information is private; it is discussed in the privacy of the doctor's office and the records are protected. I would understand if this was about releasing such information.

Justice Douglas, in a dissenting opinion foreshadowing his famous Griswold majority once noted:

Of course a physician can talk freely and fully with his patient without threat of retaliation by the State. The contrary thought - the one endorsed sub silentio by the courts below - has the cast of regimentation about it, a cast at war with the philosophy and presuppositions of this free society.

Such was a different age though and talking freely is a menace now. The law does not that there is an exception when "not relevant to the patient's medical care or safety, or the safety of others," which to the uninitiated seems to be an exception that eats the rule. But, this is apparently a misunderstanding based on the idea that gun possession is relevant to the safety of family members. The NRA, which professes to be quite concerned about such safety, particularly their safety course involving cute birds targeted to children, would one thinks disagree.

I am mistaken in my understanding conservatives and Tea Party types are necessary to pare back government regulation of the free market. If a doctor wishes not to take a patient who does not want to talk about something of this nature, it is clearly up to the nanny state to stop them. The free market, including Rand Paul type physicians, will not be satisfactory. Likewise, as Tea Party favorite Rand Paul (not as copacetic about his toilet choice) noted, we need to be careful about our freedom of speech. Dangerous speech is to be guarded against, including those who support sedition (other than "Second Amendment" remedies) and doctors asking questions.

Let me stop being coy. As a character noted in 1776 (a semi-fictional take on our Declaration of Independence) noted:

Well, in all my years I ain't never heard, seen nor smelled an issue that was so dangerous it couldn't be talked about.

This includes some doctor daring even to ask such questions. It is appropriate to put forth neutral requirements that doctors provide truthful information, including basic requirements to inform patients of risks. Sometimes, such a requirement would require a doctor to say something s/he rather not, for whatever reason, so Douglas' dictum should be taken with a bit of salt. But, this is quite different from a law that censors them from asking perfectly acceptable questions, more akin to forced pro-life anti-abortion information required in some states. This law is if anything more moronic, except as a telling reflection of the times.

As implied by someone found in the answer linked on top, it is clearly ideological, "privacy" latched on to when convenient to the party in question.

Weiner Caught Lying

[It is suggested in a comment here that he might have sent various pictures unsolicited. As I note there, this is a matter of concern, and not just "repressed voyeuristic titillation," to quote Glenn Greenwald, who again, is getting to be a tiresome scold. His overall talents make this depressing.]

I find the Anthony Weiner (who wants to be the mayor of my city some day) thing tiresome. My first sentiment, especially since Andrew Breitbart was involved, that there was nothing (so to speak) to see here. The young woman (I'm getting to be an age where that doesn't sound stupid) involved denied any knowledge of him actually sending her the photo. And, I found Amanda Marcotte's take reasonable. OTOH, she taped that a bit too early. Turns out he was being an ass about it and now Breitbart can crow. Charming that. The press should not trust the guy, but you know, short memories. Right here, right?

Rachel Maddow in effect isn't too impressed by it, telling Melissa Harris-Perry (on Monday) that she has a belief that members of Congress have a right to be "icky." MHP, often an insightful commentator, noted that a personal issue led Barack Obama to have an easy opponent for his Senate seat and the rest was history. And, like it or not, this sort of thing matters in politics. You have to deal with the environment as it is, not as you want it to be. I concur. Clinton lived and died by the MTV sword. Public image was always important in politics, anyways.

And, this is not just a private matter. I don't think Clinton's case was either: it involved a public employee and a civil suit. Sexual harassment, including sexual involvement with employees, is not some "private" matter, and Democrats should know that more than the next person. Put that aside. This is not simply about the guy and his family. It involved a Twitter account (Twit jokes just write themselves) and the "public" nature of the photo is what got him in trouble. Also, he didn't HAVE to go on Maddow and other shows and b.s. And, yeah, when you mess up in your private life (I don't care if he cybers or whatever, but the Twitter posting was a mess up) and it becomes public, a public official has responsibilities.

Let's not go overboard in taking him off the hook. Maddow starting Tuesday's show with the whole "Republicans are being so hypocritical here" is a bit tired. Weiner messed up and as a strong voice for progressives and an up and comer in his party, he hurt more than his family. It's not a resign-worthy offense though saying Republicans did as bad or worse things (though them being more hypocritical is true) is not really too helpful. Still, he f-ed up and people have the right to be pissed off at him about it.

Mets Win Again

The Mets won against another WC possible, good pitching and timely hitting (if not an ability to tack on, though a great catch helped here) led to a 2-1 game. Trading Wright would make sense, Murphy/Turner then having one more slot to fill. '11 Mets: enjoy them when you can.

Sen. Obama Speaks

In response to a comment (that he filibustered Roberts/Alito, which is false) about a non-judicial nominee blocked, a 2005 statement by Sen. Obama was quoted:

I shared enough of these concerns that I voted against Roberts on the floor this morning. But short of mounting an all-out filibuster — a quixotic fight I would not have supported; a fight I believe Democrats would have lost both in the Senate and in the court of public opinion; a fight that would have been difficult for Democratic senators defending seats in states like North Dakota and Nebraska that are essential for Democrats to hold if we hope to recapture the majority; and a fight that would have effectively signaled an unwillingness on the part of Democrats to confirm any Bush nominee, an unwillingness which I believe would have set a dangerous precedent for future administrations — blocking Roberts was not a realistic option.

I was against filibustering Roberts too though thought the Democrats as a whole should have voted against him on principle. I was more supportive of filibustering Alito, some noting that the Democrats should hold their fire with Roberts to use it for the O'Connor replacement. The rather unsurprising result was that Alito also was confirmed fairly easily, a token filibuster attempt getting about 1/2 of the Democrats. The false equivalence to let's say Liu is blatant, only underlining how hard it is (even when accurate) to oppose obstructionism by noting one side is worse. One side is worse, but shared blame and inclination (partisan and general anti-political sentiment, though often not totally neutral, in nature) makes it hard to make a case that meets "tipping point" quality.

The statement are worth reading in full, including his belief that issues, not partisan lines, should be the Democrats' focus and a reaffirmation that the party is the superior one, it's seriousness making it's job harder. The fact Sen. Obama craftily went out of his way to address criticism, including on blogs, is but one early sign of his future potential. And, darn if some of the comments (it was posted on Daily Kos) already was speaking of him running for President. This in 2005! It goes to show that there are various "qualifications" for a position, no matter what branch of government is involved.

I think well rounded view of the term is best applied across the board, actually, and in various cases I see the problem with those who are not really adequately qualified, even if they have some technical requirements of the position. A good example might be a pitcher. A pitcher can have the arm and knowledge, but if he does not have the mental toughness, the result might be not to the fans' liking. This underlines why a crafty veteran, who will be a reliable middle of the rotation guy, can be quite useful, even more so than a more expensive "talent."

So Random!

I'm with some on the message board that this replacement after the lead actress of Sonny With A Chance left was handled dubiously. Particularly, I think more focus on the characters and a better explanation of the changes regarding Chad and Sonny. Skits mixed.

Dr. Death Dies

Without help. How to Die In Oregon was on HBO recently and it powerfully looks at euthanasia and how important it is to have such an outlet. Mobile vans are not really the way to go, but the fundamental right at issue suggests he was a prophet, however flawed.

Film/TV Quickies

A few false starts on Netflix but Hide and Seek was a charming mix of fiction and document about a girl struggling with puberty in the early '60s mixed with clips of real life interviews with adult lesbians. Meanwhile, another good episode of Army Wives.

Hitler's Savage Canary: A History of the Danish Resistance in World War II

This is an interesting book, written on a young adult level but good for all, of stories of this remarkable struggle. A Day in October is a good film about the Jewish exodus helped by average Danes.

Well, There's Always The Bad Economic Policies

Comment to an article on Mitch Daniels' anti-Planned Parenthood law: "Pretty much, this article explains why there's no way I'll vote for a Republican (or antichoice Democrat) ever." Not that wrong. OTOH, the Obama Administration is fighting it. Not bad FNL.

What's the Point?

The Rep. Weiner stuff is an expected waste of time getting a lot of reporting and jokes, since well, come on. It's a gimmee. But, what's the point of a criminal prosecution now of John Edwards? One based on a questionable theory? Target the scum for a precedent? Blah.

Film Quickies

Bikini Time Machine is from the same folks that gave us some charms as The Devil Wears Nada, but without the usual suspects like Brandin Rackley or Christine Nguyen that gives them charm. More seriously, Vision is a good foreign film about a 12th Century polymath nun.

Buried

Ryan Gosling and Ryan Reynolds are two of my favorite actors, the latter in the title film about a truck driver trapped in a small wooden box, running out of air. Good minimalist thriller.

Civil Unions In Illinois

No recognition in other states, federal benefits and some private consequences (such as confusion over "civil unions") make them imperfect, but this is a big deal. Some links and discussion here.

Case 39

A lot of films with library/free Netflix month. This is a child at risk with a twist thriller with Renée Zellweger and some other good supporting cast (the child is a find too). It's a bit too pedestrian at times, but overall is an impressive "B" type film. Recommended.