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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Thursday, March 31, 2016

Trump Saying The Silent Things Aloud

A NYT piece covers on how Trump mixes big lies with plain truths gatekeepers have been denying including how Republican voters don't oppose entitlements ... if they think they are okay for them. The "have your cake and eat it too" plus garbled emotional approach does look bad at times as seen by his pullback from his treating women who have abortions as criminals (which for "murder" is logical, right?). But, along with lousy competition, does explain the guy's appeal. If he was 1/2 serious as a candidate, he very well could win.


I found this on the free rack, and as someone who watched the series but not the film, it's more like the film. Various familiar characters though some like Frank Burns aren't around much. Quick reading but a bit tiresome over the top without much of the t.v. show's dramatic balancing. Meanwhile, To the Bitter End: Appomattox, Bennett Place, and the Surrenders of the Confederacy was fairly interesting if somewhat of a shallow read that at some points seemed a bit garbled. Nice photos; like such more obscure details.

Tuesday, March 29, 2016

Friedrichs v. California Teachers Association

As noted during the live blog at SCOTUSBlog, this was set up to be a test case, Scalia ruining everything by dying. The only question is why they waited this long to dispose of it per the equally divided route. The "agency fees" for public unions question will be held in abeyance until that fifth vote though USSC could vote to rehear. Strange for them to say "backsies" now. Second equally divided vote. Seven person bench in the Fisher affirmative action case.

Update: Further briefing to try to get a just perfect accommodation on birth control

Monday, March 28, 2016

Odds Catch Up to Me

Over the years, I did my own taxes and often the taxes of one or more other people. As commercials suggest, especially with software, that is often easy or at least doable with some effort. Had to add some information sometimes. But, the odds got to me and slipped up on how to properly file my health benefit. Led to stress to a third party.

Saturday, March 26, 2016

Zubik v. Burwell Orals

Liberals with their pluralism and conservatives with their support of religion should get behind the basic concept of reasonable opt-outs of generally-applicable laws. But when RFRA is gamed like this, it destroys the broad support for RFRA and imperils its continued existence.
The blog that argued this had some good things to say about the latest contraceptive mandate case oral argument (good play by play), including explaining why Alito/Roberts tried to say the government had alternatives simply not available under ACA.  Others also pointed out the problems there.  Marty Lederman continued his epic coverage at Balkanization (in Hobby Lobby, he had something like twenty posts; as here, not short ones either).

In my view, the basic idea here is that contraceptives are important preventive care [compelling state interest], protected as part of guaranteed coverage in ACA. There are exemptions for such religious institutions ("churches" is an imperfect summary) but other religious groups like a religious college are given accommodations. They notify the government they have  a religious objection and the government separately works out with the insurance company (or third party administrator -- ML's posts show how the weeds here are myriad) to provide the coverage. This is important since a "seamless" one stop shopping employee based system is the whole point. Along with the limits set forth in ACA and other laws (the S.G. gave a litany there), this accommodation is (using the lingo) the "least restrictive means."

The groups complain for two basic reasons. The one most emotionally salient is that the government is trying to "hijack" their plans (poor nuns!) to promote things (including in their view "abortion" aka IUDs etc.) against their religious beliefs.  They are forced to be "complicit." But, THEY alone aren't covered here -- they wish to hire employees who do not share their views as well as in some cases colleges with students and so forth.  Merely paying them salary (insurance is a form of compensation here) will provide some "complicity." The connection (here their insurance company separately giving benefits)  is weak enough for most courts and others to challenge the "substantial burden" they need to show for RFRA to kick in.

Early in the argument of the government, Justice Kennedy basically said that he thought the sincere belief that the accommodation violated their beliefs here met the test.  This seems to take the word "substantial" out of the equation, especially given the limited connection -- the tax fine they have to pay cannot do the trick. There is going to be some indirect connection (like salary that is used for abortions) which a person or group will have to handle or suffer civil or even criminal consequences.  Use of words like "collaborators" (where Paul Clement ended up) like we are treating them like those that helped the Nazis is just over the top. 

Anyway, and it looked like Kennedy accepted the accommodation for this reason in Hobby Lobby, even going past that first step, the compelling state interest here warrants this limited means to advance it even then. Such is the reality of society -- even if something burdens a religious belief (such as vaccination requirements), there will be neutral laws that are legitimate.  As covered in that link, even Prof. Laycock, a strong RFRA supporter accepts that this also goes to line-drawing as to the second matter.  The government for purposes of religious accommodation can place special rules for churches without similarly broad exemptions for religious people and groups generally. This is particularly the case when dealing with employees who are not members of the religions in question. If employees like some janitor at a religious run soup kitchen is going to be burdened, as Kagan suggested, who is to say the fair path would not to have less (after all, putting aside ministerial exemptions, these are constitutionally optional) exemptions across the board? 

In the view of some, the government -- so hard to believe given how the other side tars them as tyrants, I know -- is bending over backwards too much as is.  It repeatedly, at times pushed by the courts, tried to find a middle ground provide exemptions and accommodations.  Not surprisingly, some are still not satisfied, especially those who despise ACA or simply do not want to in any way be involved in the ideologically laden subject of birth control.  The principle goes further -- see the "religious liberty" not to serve gay people -- leading me to continually believe that the net result will be selective concern, since this level of micromanagement simply cannot be upheld to apply to every religious dissenter.  Establishment problem, especially when it harms third parties.

Prof. Laycock covers the "conservatives" in the opening quote though he has joined with religious liberals at times too.  This suggests the overlap present though the quote, reflecting how it is often expressed, suggests there is an ideological divide here. That is, liberals are not just concerned with providing women with health benefits or with gays not being denied equal treatment at courthouses or bakeries.  S.G. Verilli, who I think did a good job here again, ended on the right note there. The government is dealing with a diverse society with a range of faiths and provided a fair solution that balanced all the sides.  There isn't going to be some perfect solution here though it would help if some justices knew what they were talking about.

Again, it might have helped if the women (again, the principle applies broadly, and in some other case, men might have their health insurance choices burdened) had an advocate directly voicing their interests.  We have one side and then the other who is balancing everything. I will end on a point that I have noted in the past -- the "pluralism" on the liberal side includes religious pluralism.  Alito in the stun gun case noted how the right to use one was in part a matter of conscience, since some morally are opposed to using a more dangerous arm.  Same here -- use of birth control to avoid unwanted pregnancies is a matter of morality for many people.  Some speak of abstinence, which is unrealistic anyway, but many think sex is an important morally compelled way to bond with a partner.  This eases things there, putting aside that individual autonomy itself is for many an important matter of conscience expressed in their religious beliefs.

The law in various ways advances the interests of religious liberty and I fear that the discussion here does not fully focus upon how BOTH SIDES have such interests at stake. Not merely in a negative fashion of resisting burdens from those with beliefs different from one's own.  No.  ACA also helps employees exercise their own religious beliefs as suggested by Sotomayor (again strong in oral argument) when she noted birth control can reduce abortions.  A general benefit, but for many also a basic matter of conscience. 

Friday, March 25, 2016

North Carolina Anti-Trans (etc.) Law

A core concern in Becoming Nicole was usage of restrooms, which is a thing anti-trans activists latch on to these days. This includes N.C. going out of their way to pass such a law, including to gratuitously prevent local option. Meanwhile, others suffer along the way, if those less easy targets. Trans using facilities for those they look like is common sense.

Thursday, March 24, 2016

The Rape of Nanking

I re-read this book regarding "savage butchery [by Japan] in China [during] the destruction of the city of Nanking in 1937, then the capital of China." I also once read her book on the father of the Chinese missile program, basically thanks to the Red Scare in the U.S. that drove him out of this country. Did not read her history of Chinese-Americans yet. She later committed suicide and my free copy had the local news clipping reporting that.

Tuesday, March 22, 2016

SCOTUS Opinions and Not That Super Tuesday

Hobby Lobby II: This time it's safe (without Scalia, at worse it's 4-4, and nearly all the lower courts reject the claim the accommodation isn't enough) comes for oral argument tomorrow.  Today, it was Puerto Rico debt, with only seven justices (Alito recused).  Meanwhile, without recorded dissent, final appeals for a Texan about to be executed were rejected.

[Update: Coverage today suggests 4-4 very well is possible with Kennedy showing some sympathy with the idea that the government is trying to "hijack" religious institutions' health plans. The idea being that giving them an accommodation is not enough since their insurance provider still is separately giving employees health insurance they deem immoral. The level of burden is trivial enough that I simply don't believe the rule will be applied evenhandedly.  There just would be too many cases if we took this seriously. Instead, concerns will be selective, de facto establishment.

One other thing also continues to really bother me. They want to inhibit their employees from practicing their own religion as they deem fit here by means of choosing to use their compensation (here health insurance, not wages directly) as their morality deems appropriate. In this fashion, the nuns etc. are burdening the religious beliefs of others.  If nuns want to use employees instead of using fellow travelers, they shouldn't have the power to do that. THEY aren't being forced to buy contraceptives.  They are paying employees (with money or insurance) and employees can choose in both cases to do so. ACA furthers religious choice too.  Or, is it the wrong type, so it doesn't matter to others?]

The justices yesterday sat in their new order on the bench. Today, Scalia's absence (still a bit weird to say that) led to the first 4-4 ruling (an earlier possibility avoided by a settlement), a SCOTUSBlog analysis perhaps a bit too optimistic of a quick settlement. A case involving a hovercraft in Alaska, another statutory dispute, was settled unanimously.  A class action ruling was divided, but only 6-2 (Roberts concurred; Alito going along in part but not with the judgment).

The final case also has some history, this time regarding dividing up Native American land and sovereignty.  It involved the Omaha Tribe (about 5000 members) having the ability to regulate alcohol (gather the core concern for them were fees) as applied to a locality that for some time basically had very little to do with them. The late in the day use of the tax power was noted briefly at the end of the opinion and seemed to be the core concern of the town's lawyer.  But, the question answered was if tribal control was "diminished" -- it was not, since Congress did not clearly say as much.  It could not be deemed to have been done implicitly.

[In little things that annoy me news, the tribal official named in this lawsuit actually was replaced midway, so shouldn't the person holding the position today be there instead?  Noted it on Twitter, including in answer to a tribal tweet, and emailed Lyle Denniston of SCOTUSBlog.  He emailed me back: "The usual way the Court learns about that is by letter from counsel.  I don't see such a letter in this file. The Court does not monitor that on its own." Huh. Seems a lackadaisical way to do it.]

Meanwhile, Arizona and Utah will have primary/caucuses for both parties while Idaho will for Democrats and American Samoa for Republicans.  Trump probably will hold serve since he is favored in winner take all Arizona and even though Utah looks to be strong Cruz territory, Trump probably will pick up at least a small percentage of delegates. AS is unbound.  Clinton is favored in Arizona while Sanders might do well in Idaho and Utah (white caucus states).  And, Utah passes a law to promote an "In God We Trust" license plate.  A lot of words there.

Update: Hillary and Trump dominated Arizona (nearly 50%, about his ceiling; his anti-immigration message fits well in "papers please" territory) while Sanders and Cruz dominated Idaho (just Democrats) and Utah.  The rules of the game meant Cruz's dominating win gave him all the delegates, but even however the nine from American Samoa split (and one count gives Trump and Cruz one each already), Arizona's 58 trumps Utah's 40.

One thing that stood out to me by looking at the numbers in Arizona is the math didn't add up.  And, looking at the Talking Points Memo breakdown, we see that various other people on the ballot received some votes. The most notable thing was Marco Rubio received about 13.5%, not too bad for someone not in the race, and more than what John Kasich received.  One is left with wondering why this guy is in the race, if the not asshole (when this is mentioned, some want to remind he is kind of one; but Trump/Cruz really upped the game there) gets less votes than someone not there. OTOH, maybe early voting helped Rubio here, but how much?

The 4-1 numbers for Sanders in white caucus states helps his brand, but the less than net ten delegates he received is not going to mean much if one worries about actually winning the race.  Still, though Sanders will not want to say this aloud, nor many of his supporters, "winning" basically has to be given a different meaning than that. Nothing novel in this: challengers in these races do not only benefit from winning the most votes while otherwise they get nothing. Sanders' message has matter, including pushing Clinton left, which helped her win last Tuesday. 

Monday, March 21, 2016

Supreme Court Watch

Note: SCOTUS also heard oral argument today and on Twitter it was noted that this is the first day the justices are arraigned in the post-Scalia style. Before, they kept the old way with black over his chair. 

Today was a day for the Supreme Court to hand down orders and like when it summarily rejected a non-recognition of same sex adoptions on Full Faith and Credit Clause grounds, we had a bit of a surprise today.  We can put aside the usual cert. denials, taking of what doesn't appear to be an overly notable case for argument and sundry matters.  Nothing seems of interest.

The decision not to decide a dispute among states arising from the negative effects of marijuana legalization in Colorado was not. The dissent (Thomas/Alito) had a point that they really should have took the case on "original jurisdiction" grounds. Or, at least, they should have discussed their simple "nope" more, particularly given the special role of the Supreme Court to settle interstate disputes.  This is true even though their avoidance here was not a novel move, they did it in the past.

The surprise was the per curiam dealing with the stun gun case that I discussed, which seemed readily avoidable even if the challenge had bite.  The Supreme Court has not substantively dealt with a single Second Amendment claim since McDonald, even though there probably was a conflict among the circuits (how much is debatable, but the proper standard and questions about guns outside the home seems to split courts) and many cases to pick from. Before dying, Scalia joined Thomas calling out the Supreme Court for not taking one that dealt with ownership of certain guns even at the home. Here, Alito (with Thomas) was quite passionate, both about the interest of the at risk woman involved to have a means of self-defense and the alleged disrespect a lower court (a state supreme court that shortly before McDonald didn't protect an individual right at all) had of Heller itself.*
Because the stun gun that the defendant possessed is both dangerous per se at common law and unusual, but was not in common use at the time of the enactment of the Second Amendment, we conclude that stun guns fall outside the protection of the Second Amendment.
I thought the lower court's opinion was overbroad at the very least. This is what SCOTUS, in an opinion without dissent or comment from the liberals, basically said in a brief two page per curiam. As noted by Ian Millhiser on Twitter, it came off as a compromise, perhaps suggested by Kagan, to hold the line.  It kicks the can down the road though some teeth seems to be present here. The Supreme Court here noted the 2A covers arms not around at the time of the amendment's passage (since this was a state matter, really should reference the 14A). Next, in reference to the "dangerous and unusual" exception to the right to "keep and carry" (USSC words; implication here it isn't just applicable in the home, especially that is the fact pattern in this case?), the lower court was similarly wrong to say "unusual" applies since the stun gun was a thoroughly modern invention. The "dangerous per se" aspect is left open and perhaps the state can still rest on that ground?  Finally, the state court was wrong to limit things to those readily adaptable to the military; Heller was broader in scope.

In fact, in theory, the state might ban stun guns for some other reason. This might be deemed the charm of such a brief/narrow opinion.  People can take from it what they will -- Heller matters ... or, well, this is just an extreme case. SCOTUS still needs to take a case for full argument to clarify the breadth of its 2A precedents. But, who is to know they will have a full Court any time soon, even when in the 2016 Term that will happen.  So, just what "dangerous" means -- Alito briefly addresses that and as applied to the 2A (guns per se are "dangerous" after all) it still isn't really clear -- will have to wait.  Still, they easily could have avoided this case and not sure there were four justices so upset about it that they would have granted cert.  But, there were probably three strong ones. Now two.

The opinion didn't avoid a strong concurring opinion that suggested that the Court didn't do enough ("grudging per curiam").  Still, realistically, the opinion did help the 2A side, if only somewhat. Personally, I think the liberals will live with Heller though in a sort of Planned Parenthood v. Casey way that will make others upset.  To be continued. For Court watchers, this is the sort of exciting window into the Marble Palace.


* This includes how it was a "good thing" she had a means to defend herself against an abusive ex-boyfriend and later "stand her ground" in a less lethal way that could appeal to the "conscience" of those worried about more deadly weapons. The stand her ground thing is a bit much and the lower court suggested there was a bit more reason to be concerned about stun guns than suggested here.  But, the concurrence had a point, including by noting that even if an arm had to have a military use, this one did.

[And Also: The concurrence is particularly concerned with self-defense, which some might argue isn't the point of the 2A being incorporated here. Nonetheless, Alito's opinion in McDonald v. Chicago itself basically noted the changing understanding of that amendment by the time it was incorporated.  In effect, this view was also back-dated to some extent to the 2A, which also now is deemed a self-defense matter.]

It is unclear what will happen now -- the woman "was not given a jail sentence or a fine," so the smart thing for the government here to do is cut their losses. The opinion again didn't totally bar a stun gun ban and the state can worry about enforcing it the next time they find a means to do so for merely possession and not some sort of misuse -- not seeing this as happening that often.  Or, they might press the point, since as Alito noted: “If the fundamental right of self-defense does not protect Caetano, then the safety of all Americans is left to the mercy of state authorities who may be more concerned about disarming the people than about keeping them safe.”

"A point" doesn't mean I would join all of what he said. The link includes further discussion of other matters covered by the orders.

Sunday, March 20, 2016

RH Reality Check Forgoes Comments

Another place where I comment a lot is going to a no comment format -- RH Reality Check.  The new look will come tomorrow.  See, e.g., how this article on a 20 week ban prime to pass in South Carolina is now posted on "Rewire."  Like Slate, this is basically the "Facebook" path, comments (leaning toward brief ones, less likely to be responded to/interacted with) allowed there and other such "social media" locations. Apparently, "managing" those comments is not really a problem. 

I find it unfortunate (no matter how gung ho they are about the changes) that the site will not allow comments.  Think that is a value of online blogs and media sites -- the chance for feedback and interaction. There, the comments generally were one-sided though there were some difference of opinion (often from me).  And, the opposite side -- at times even when I disagreed on a point as too strident (eventually, better to just let that go*) was often treated as per se trolls, even when they did not completely act that way.  To be fair, often they did, the blog again not really a place to go for reasonable debate with opponents of your p.o.v. But, there is a value there all the same.  A chance to vent and discuss among fellow travellers.

One person, e.g., suggested that rape should be considered "attempted murder" if abortion is not allowed in such cases.  And, she argued that rape is treated special in that respect.  It really isn't.  No "special pleading" to say as such. Felony murder involves being charged for a death -- even if not intentional -- in the course of a felony.  This includes if the death happens later on, but is still a result of the crime.  As usual, roughly speaking, these things complex and subject to varying laws.  Rape is a felony.  And, it wouldn't be "attempted" murder.  The person didn't intend to kill the person. Plus, to differentiate, the woman would not be able to have an abortion even if her life depended on it. Not this bill, putting aside it only dealt with after twenty weeks.

Rape is horrible; this is factored into the crime.  But, there are other crimes with more of a chance of leading to death in some fashion where murder charges aren't likely even if the person dies.  Finally, the chance of death here is tiny -- you have to get pregnant and die as a result.  The numbers are concern but even "pregnancy related" includes indirect.  So, I would assume that only a very small number of rape victims would be covered here though a larger number if abortion was illegal.  All the same, if the women died, the government very well might punish the rapists more anyway.  Not thinking this will help bash the anti-choice side.

But, people will think things like this and it's helpful to go at it online. It is rather amazing really, putting aside that of course I like the chance to read myself and figure a non-zero (basically this blog) number of people are reading me.  Anyway, keep up the good work RH or whatever though that name might be a bit too much like "Freeform" for "ABC Family." The new title is more explanatory of what happened than a good name imho.  Also, the new site has a lot of good stuff, but it is a bit overwhelming.

Oh well.  Didn't like Mets Blog's reboot either including it making it much harder to comment.  Don't even go there any more.  I will check this out though since there are good articles and podcasts etc.  Sigh though.  It seems worth the effort to allow comments, cut them off after a few days or maximum number maybe, especially since there were so few except in certain cases.  And, a more smaller intimate look works too. 


* At times, it's hard. For instance, I once tried to explain that men would care about abortion rights too (of their wives, daughters, etc.), especially given the horrible nature of deprivation according to those on that blog.  But,  couple people repeatedly tried to say I as a guy didn't really understand.  If there is such a lack of empathy out there, how do we manage to have juries decide things?

Another case involved the idea you sometimes vote for bad choices (at least on one issue) since the alternative is worse. For instance, anti-choice Democrats when the alternative is an anti-choice Republican also worse on a variety of issues.  I gave a hypo -- who would you vote for pre-Roe v. Wade?  After all, each side was against abortion rights in many cases. But, people still managed to vote for one (e.g., an anti-racist) candidate. The person simply couldn't understand what to me was an obvious point. But, that happens, and overall the person seemed a good person on the issues generally speaking.

You have to let it go at some point though it can cause problems when rational thinking is blocked. That can't be cabined so easily and can poison the well at times on the "right" side too.

The Vegetarian

This Korean novel was only recently translated and concerns a psychological decline of a woman (mainly viewed thru three perspectives: husband, brother-in-law [a bit pathetic but for me came off the best], sister). We get hints problems were around for some time behind a bland facade but things started with "a dream" that led her to choose to become a vegetarian. Meat and her husband's body suddenly disgusted her. Certain interactions with her family were catalyst for two major breakdowns; were they inevitable? Whole thing is metaphorical and overall well-written though think it could have ended ten pages sooner.

Saturday, March 19, 2016

Hearings, No Vote?

Prof. Amar does his usual thing (readily noticeable tone) over at Slate with others while discussing the Garland nomination. I think he and Dahlia makes some good points. The hearings before the election idea makes some degree of sense, again like the nomination itself in effect pretending these people are reasonable. You work with what you got.

Friday, March 18, 2016

The Remaining "Not Trump"

Colbert had a bit on the scary nature that Ted Cruz is the final guy here, Kasich in theory the "sane" one (if with the usual crazy conservative beliefs) but having no chance. So, we are left with something of a longshot whose "sanity" (see, e.g., foreign policy team) leaves a lot to be desired. If Republicans like Lindsey Graham want to make an effort here, why not support Kasich? Really, with the remaining states, he has a shot at stopping Trump from getting a majority. Plus, unlike Cruz, he is basically someone the usual suspects can live with.

The 33

This is the first I saw of this discussion that Spotlight (film on media exposure of priest molestation scandal) got in a bit of trouble with overuse of dramatic license. Always be sure to know this is a film, not a documentary. I will accept that as to the title film, a good workmanlike effort of the Chilean miners trapped and saved, becoming a world-wide story. Update: The film probably can be criticized for not fully getting to the desperation of the men (cf. a book on the topic) and being a bit too restrained. Still, overall a decent film.

More on Garland

[Yes, this is actually possible. Really.  And, this is a good discussion on the Stevens nomination. Unelected President. If Scalia died in mid-November -- hey, the election campaign started & it's less than a year to go! -- would Republicans really be saying anything different? Overdoes the "Stevens was more conservative" point, but that was true too up to a point.] 

There is ongoing coverage (NYT coverage today is behind a paywall & I already used up my month's articles ... so will check it out at the library) on the Garland nomination. The NYT articles the day after he was nominated, e.g., were quite interesting to me.  For instance, his clerks are prime "feeder" material for the Supreme Court and it looks like Chief Justice John Roberts in particular is really impressed by the guy.  I realize various conservatives take the guy as a turncoat, suggesting the level of extremism out there, but that alone suggests how he is a good fit. Another interesting tidbit (other than the Illinois connection plus a sort of "it's his time" deal) is his family connection to the governor of Iowa.  This might matter in the Grassley re-election campaign.  Maybe not, but it's intriguing.

I like this pick.  Basically, Judge Merrick Garland comes out as an ideal choice for people like this who bemoan the state of judicial nominations these days. They are serious, right? Both liberals and conservatives are coming out praising his personality and skill-set.  To the degree liberals might want someone more so or perhaps a woman/minority (to the degree a Jew is not one), yes, for a Scalia pick with a Republican Congress, you are going to have to compromise.  Anyway, Obama picked a Latina, a non-judge Jewish woman and a white guy.  That's not bad, along with various district and appellate judges in place thanks to Obama serving as a deep bench for the future.

On balance, the pick promotes the Democrats as sane government brand, is a somewhat amusing in your face move by Obama to shame Republicans (Sen. Hatch even tossed out the name earlier, saying "well, of course, he wouldn't do it"), is someone I think Obama himself likes and the other options probably wouldn't benefit the Democrats much more, if at all.  It also isn't clear how much various actors (like Judge Watford) wanted to be mixed in this.  I understand the desire for someone different, but we had that with the first two picks, and at this time, for the person being replaced, it makes a lot more sense. As a whole, Obama has done a good job with diversity.  And, people keep on saying any candidate is doomed. Fine. This "settlement offer" discussion shows the result is a more liberal choice later.

If Obama choice someone else, I very well might find good things to say about it.  But, the back-up option at the end, the person I figured early on he would choose, really doesn't seem that more ideal in hindsight.  Hard to tell if the person would be more liberal.  Yes, he is Indian-American, so that might help with minorities somewhat but not as much as a black nominee (a former prosecutor, who very well might not be that liberal on criminal justice issues); plus, even there, this one thing probably wouldn't help that much.  Again, Garland is in certain ways ideal politically to troll Republicans, less so than others.  Yes, he is younger, but it seems greedy -- Garland is likely to be in place for twenty years. That isn't enough?

Again as to the NYT, a ranking was made, and he was around the ideology of someone like Kagan.  He might be more like Breyer on criminal justice matters, but on labor, environmental and other issues, he is said to be more liberal (generally speaking, not against one justice), so it balances out.  Finally, you had various women judge options.  Now, politically, don't know how much more that will help given Hillary Clinton is the nominee. Second, my choice there was Judge Kelly, but her resume is not overly comprehensive there.  I think it would be ideal for her to spend some more time in the Court of Appeals.  Still, in another situation, she or another woman judge might have been ideal.  For this one, however, not as much.  The value of sending out some sacrificial lamb into the buzzsaw also is at best mixed there and might even hurt the value of the candidate long term.

At the end of the day, I like this choice, particularly given the whole picture involved.  The other two on the short list includes one that is seen as a pro-business type who very well might not excite the base and someone who very well might not be much more liberal on the bench that was controversial the last time he was up for nomination.  Other than being black, he also has a standard background (prosecutor etc.), so not sure how much he should excite.  This leaves various shall we say out of the box options in a context where a traditional one makes sense. And, even there, one or more of them had issues that made them less than ideal such as being a young district judge.

Anyway, I do hope he is confirmed. Some wish he is not, hoping for a better nominee later.  That isn't a horrible result, but it would be nice really to have the process work.  The final concern there is that a "safe choice" will serve as a negative precedent.  Eh.  Did past action deter Republican intransigence here?  Each situation is different and Clinton picking a replacement of Ginsburg, Breyer or even Kennedy (who will suddenly get some Republican cred while some now just tar him as a liberal)  in the middle of her term or whatever will be quite different. 

Thursday, March 17, 2016

JP Day

March 17 is for the Irish (St. Patrick's Day); March 19 for Italians (St. Joseph's Day). In between is JP Day -- for Irish/Italian mutts. The "P" there is for "Paul" though.

The Struggle for Student Rights: Tinker v. Des Moines

I have repeatedly noted my enjoyment of John W. Johnson's (what is with double names?) book on Griswold v. Connecticut, part of the cottage industry of books on cases.  He earlier wrote The Struggle for Student Rights: Tinker v. Des Moines and the 1960s.  I found that book less interesting though it was serviceable.  [You can listen to the oral argument of this and other student rights cases at Oyez.com.]

The first book was much more comprehensive -- a favorite chapter was one that look toward history to show how the right of privacy was understood in U.S. law and among various rights in the Constitution as well.  The story of the case also spanned a long period of time -- it was part of a series of cases that go back to the 1930s and forward into the 21st Century.  This book, written in the late 1990s, is more time bound to the single case though there is a final chapter that discusses later student rights cases.  So, we have more detail of school meetings, newspaper reactions, law review responses, lower court activity etc.

We do get more of a sense of the other side but a lot of this stuff got to be a bit dull, if useful in a pedantic sense.  I would have liked more of a sense of other cases and general educational matters to fit in the Tinker case in a wider context.  The second book took a broad look at privacy law in a separate chapter.  Something like that would have been helpful here, a separate chapter that stepped back and looked at the wider situation.  The relevant cases like the flag salute case (Constitution applies to school) were covered, but not in such a comprehensive fashion.  The personal story of the litigants was interesting, but harmed but too much of the other stuff.

The case itself noted that an armband worn for protest is basically akin to core political speech and is protected here unless there is clear evidence of disorder.  Even in the school context. The evidence here was very limited.  The book also suggests any problems was if anything aided and abetted by school officials in some cases selectively targeting the speech.  So, a math or gym teacher made it known that criticism of the Vietnam War was distasteful to them.  And, in other cases, things like political buttons or even an Iron Cross were allowed, even though they would get some pushback. So, in effect, it was a core First Amendment "no no," a content based limitation. 

Justice Harlan briefly dissented, trusting that the school officials were neutrally relying on school discipline. This wasn't a case of "a desire to prohibit the expression of an unpopular point of view."  His dissent is not very convincing because it doesn't actually examine the record. If that was done, such neutrality would be a harder case to make.  Justice Stewart briefly concurred to note he thinks children/schools can be treated differently. A step further here, when some a benign type of expression was at issue, required a bit more. Justice Black had an intemperate dissent, showing his distaste for protests in the 1960s.

The opinion was sure to separate an armband from "length of skirts or the type of clothing, to hair style, or deportment."  There were around that time into the 1970s lots of cases, coming down different ways, dealing with hair length.  Hair (as suggested by the musical that came out around then) often has a symbolic quality to it, including religious in nature (the book discusses how the students here were influenced by their religious upbringing).  But, the Supreme Court never really dealt with that (though it upheld a regulation for police officers).  This is an interesting area and one that I find pretty important in various cases.  The same would apply to clothing; for instance, trans issues.

The later school cases in the area of controversial speech that reached the Supreme Court generally -- this is the sense you get from the book -- didn't go well for students.  This is partially a matter of how you look at the question.  For instance, religious speech had more success in relation to school clubs and such. Also, the book references the T.L.O. case, which did give teens second class Fourth Amendment rights. Still, even Tinker balanced school interests there and a "reasonableness" test still was applied as to searches. After the book came out, this had some bite.

The book also didn't really cover a few college cases, including involving the SDS that popped up in this story.  And, the cases that did reach the Court also repeatedly was complicated by other issues, especially the presence of an argument that school speech was involved, not merely student speech.  For instance, a school newspaper or the rules of a school election.  Finally, the facts were far from ideal -- two came off as pretty infantile -- a speech during a school campaign full with sexual metaphors or holding a "Bong Hits 4 Jesus" sign (this coming after the book was written).  And, the dissent there is surely correct, but the net result of the votes was a narrow rule regarding a criminal matter. The determining concurring opinion made clear that even if the student was merely promoting changing marijuana laws, it is treated differently.

We need them to hear a more Tinker-like case, even if the cases taken here have wider principles that make the results troublesome.  An important issue, e.g., would be the breadth of control a school has over social media that might be seen by students, perhaps at school, including such things like suspending an athlete for a few games for tweeting a curse connected to his/her school team deemed unsportmanlike. Or, even more serious t-shirt case. The balancing will depend on the facts.

The book was still pretty good overall and the case a useful way to discuss how to treat these matters.  This includes what amounts to a balancing test that treats schools differently than someone else.  


A footnote addresses the basic unconstitutional conditions principle applied to this context.  By the 1960s, the old principle that you might have the right to free speech but could lose it if you wanted to keep your government job or benefits was no longer deemed correct. This doesn't mean there is no difference there and again we are left with something of a balancing test, especially in the area of government employment. 

The footnote references a 1930s case that upheld a requirement for membership of a school university requiring a student to participate in school training in military "science" and was not found to conflict with his constitutionally protected freedom of conscience.  It was noted even granting that, there were limits on how far the schools could go, e.g., forcing people to pledge allegiance. The original case also was an interesting discussion of the breadth of a right to conscience and might have some relevance of the upcoming contraceptive mandate cases.

One thing that also caught my eye is an atypical reference to the Second Amendment:
Undoubtedly every state has authority to train its able-bodied male citizens of suitable age appropriately to develop fitness, should any such duty be laid upon them, to serve in the United States Army or in state militia ... the state is the sole judge of the means to be employed and the amount of training to be exacted for the effective accomplishment of these ends. Second Amendment [cases].
The Second Amendment is cited here as protecting the interests of the state over its own militia, which is the general "state rights" or "collective rights" view held by many today.  And, part of this is requiring training in military science, in part since there is not a right to conscientious objection status broadly. Or, at least, so broad that students at a school university, a voluntary matter, could not be required to take place in military type training.

It would seem to be more complicated if we were dealing with minors required to go to school though even there they are not required to go to public school.  The Supreme Court later upheld a rule requiring opening up colleges to military recruitment or be denied federal funding, again relying on some government interest in military training.  At any rate, this is one of those interesting cases with intriguing aspects.

And More: I referenced this with additional comments on the cases cited (the excerpt complete would be: "Second Amendment; cases") in this thread. The Presser reference (the non-incorporation point obsolete, the 1A also not incorporated at that time, even though it too in part has a federalist aim) is interesting partially in that (especially with Heller's analysis) it seems to allow banning private militia groups, especially if they "drill and parade" with their arms publicly.  Does this include "parading" or demonstrating in public with your weapons?

Looked up the other reference and they generally concern states having power over the militia, two cases (if not the page cites) briefly referencing the Second Amendment in a related context. The preamble speaks of a "well regulated militia" so training and other regulations thereof would have clear 2A implications and not just in a penumbra sense. And, training would be a form of "keeping and bearing" at any rate. As I noted, the single reference can be used by either side though as a whole it helps the collective rights side somewhat more.  Interesting overall.

Wednesday, March 16, 2016

It's Judge Merrick Garland

I'm surprised but as I noted in comments here and here, on balance, can see how he is a reasonable choice given the whole situation. This includes the other choices' wishes etc. The whole situation, like for Kennedy in '88/89, is not totally ideal. But, this is the sane good government choice. Replacing SCALIA. Some on the left will go in their "Obama failed us" routine. The ones who assure us anyone is doomed anyway. Anyway, do your job Senate.

Super Tuesday II

Vote-wise, Sanders was going to be stuck with two Southern states which he simply doesn't handle well, but maybe the Midwest? Close in Missouri/Illinois but the disappointment was really Ohio, which after a recent upset, he thought he could win. Really, a win wouldn't do him much good delegate-wise except for possible momentum. Rubio lost; out. Gov. Kasich (Ohio) won Ohio. Trump won three states. Missouri is basically a tie with him now a tiny bit over.

Update: Emphasis was made on Clinton's success but even with Sanders doing better in Missouri and Ohio, NC and Florida should have balanced things off. Net: Sanders still behind with little shot of winning enough to catch up. Missouri (R) will presumably break by district.

Tuesday, March 15, 2016

Carson on Trump

Today's a very important day in the presidential race, basically a second "Super Tuesday." It started well for Trump with a win out in the middle of the Pacific. We will see how things go later -- Kasich looks like he will win Ohio while Trump is doing well elsewhere though an upset some place is possible. A win even merely in Florida is quite important especially since he would likely still get a good many delegates with strong second place finishes.  It would make Cruz etc. have something to hand on to if they get the wins with Rubio of course being made out to be still alive if he actually somewhat miraculously wins Florida.
"I have to look at what is practical. I didn't see a path for Kasich, who I like, or for Rubio, who I like. As far as Cruz is concerned, I don't think he's going to be able to draw independents and Democrats unless he has some kind of miraculous change," he continued. "Is there another scenario that I would have preferred? Yes, but that scenario isn't available."
Carson -- realize it's sometimes hard to say this -- has a point here. From the Democratic perspective, Trump would be a better candidate than Cruz, the former putting a scare in some people, especially since there is a fear he would actually pick up some state or states the Democrats must win.  Cruz (sorry, Sen. Cruz, former Texan state official) might put himself out as an outsider, but he has less of a case there than Trump. Plus, Cruz is clearly a very conservative sort that on ideology aside, putting aside his personality, will turn off many voters. Carson, noting some personal distaste for Cruz given campaign related activity, might support Cruz more policy-wise. But, if he wants the Republicans to win, yes, Trump very well might be the better choice.

Some Republicans cannot quite stomach this and some already are saying they rather vote for Hillary Clinton.  It might not be somewhat they want to say publicly, but many probably can live with her, especially if they retain control of Congress (either way, they will at least control the House though the Senate will be very important as seen now with Scalia's replacement).  Opposing a Clinton has done them very well for over twenty years running. Her foreign policy will be more hawkish than many liberals like and she probably will be inclined to in their eyes at least be "reasonable" for various economic and regulatory matters.  Trump is a wild card and though Cruz might be ideal, some might be turned off by him while others will fear too much of "a good thing" will hurt them down the road.  Many prefer divided government.

I won't take this that far but the case is strong enough that she will probably get some "strange bedfellows" support, especially given her past comments on the "vast right wing conspiracy." It works here to have "good" competition and Trump and in various ways Cruz is just that.  Many are somewhat gleeful for Trump being the nominee, and I admit to some of that (also hope it will knock some sense in the party but might not happen especially if they retain the Senate -- he will be just seen as an anomaly with weak opposition aka it's all Jeb!'s fault).  Cruz though is probably the best opponent for the Democrats to win the presidency in November. Not sure about the Senate though.  See the divided government thing.

Well, we will see how things go tonight.  To underline the point, we need to look past the presidency.  The Senate is a big deal this election though it has to fall into place particularly well for the Democrats to win. I have seen a few people predicting that would happen, but depressing as it might be, got to not assume that sort of thing. Finally, the big thing remains state races. Since states as a whole will fall the Republicans way given the number of small conservative states in general out there -- also giving them a leg up in Congress -- a simple majority is understandable. But, Democrats by one count I have seen are under twenty states now. That's not good. The thing I'd hang on to there is that it isn't a lost cause. A mere five states would make things look much better -- twenty-three states.

Like all the emphasis on Trump in the news ... and I'm not any better here (never really was that into local politics at all) ... things are skewered. A long term effort to retake some statehouses is essential here.  Still, a breakdown of the national Republican Party of the sort that will occur with a Trump nomination cannot hurt, right?

Sunday, March 13, 2016

How Different Cultures Understand Time

Apt time for this cross-cultural examination showing the "obvious" often is not.

Ann Carver's Profession

Fay Wray according to this summary (NYT review here; spoilers) did eleven films released 1933. I quite enjoyed her in this one about a woman whose success as a lawyer (first big case: a breach of contract suit turning on the girl being "colored") hurts her marriage, helped by good support and great directing/editing (panning in through a diner kitchen's window to see them kiss a highlight). 1930s gender dynamics made ending a downer. Nice find.

Wednesday, March 09, 2016

Kinda Important Tuesday

Sanders had a big upset in Michigan, which can affect momentum, but it still was an evenly divided delegate split more or less and Clinton racked it up in Mississippi. Trump won three of four, coming in second in Idaho. Marco Rubio couldn't even show up in Hawaii. I staid up to see Hawaii results -- fun to keep track if you just try to assume Clinton will win in the end. Guess not simply being horrified Trump is winning helps him though hard to believe he is.

Monday, March 07, 2016


Major news was an unanimous order upholding a Georgia same sex adoption ruling on Full Faith and Credit Clause grounds. A range of orders related to an earlier teen LWOP ruling and a split per curiam in a capital case with strong comments (e.g., "liberties dissent takes with the record") about the dissent (Alito/Thomas). The two also would have taken a 1A case; red flag to me was how "fuck" has to be "f--" while "fags" warrants no dash. Also, brief opinion.

Weekend Races

So, the weekend numbers as to places won are: Cruz and Trump: 2 and Rubio: 1 while 3-1 in favor of Sanders. But, winner take all (e.g., Texas gave Cruz 1/3 of his delegates so far) and delegate spits matter more than merely state (or places like Puerto Rico that was akin to Cruz's Kansas success) wins. Ways to go here though Rubio really needs Florida.

Sunday, March 06, 2016

Fort Bliss

It never came up during the director commentary, but this film reminds me of Michelle Monaghan in Trucker. There too she was a tough independent woman in a "man's job" dealing with returning to her son. There are various differences, including this time she wants to go back to her son, but she'd clearly would be someone you'd think for this part. Both good films.

Friday, March 04, 2016

Excellent Daughters: The Secret Lives of Young Women Who Are Transforming the Arab World

I'm reading this empathetic and easy reading book by a reporter who by the looks of her I fear could easily be burnt by the regional heat. Seriously, well written series of vignettes even if the subtitle might be a bit much. Meanwhile, interesting article on the Koran from a Catholic's perspective. Both suggest connections as well as differences.

Wednesday, March 02, 2016

Super Tuesday

It only covered a sliver of states, including various low population ones, but still important. Bernie won the handful (minus MA, where he lost by a little) he aimed for, Cruz won TX/TX North [OH] along with Alaska and Rubio finally won something (MN; had a shot in VA). Trump did well all over, including where he lost, except for MN. No big surprises.

Tuesday, March 01, 2016


Orders yesterday, oral arguments (including abortion tomorrow) multiple days and opinions (liberals split on both, one a Sotomayor v. Kagan battle on textual analysis in honor of Scalia, apparently). Thomas spoke; as I noted here in various comments, that's good and unsurprising he chose this time, including to get the nuances of the special nature of 2A rights and criminals. Meanwhile, Scalia's death already mattering.

Angels on My Shoulder: Trump Edition

And Also: It is still rather slow in pace, but Better Call Saul was pretty good last night -- Kim again plays an important part. I like her character, even if you just know things will not go well in the end. Question would be just how bad (she doesn't seem to pop up in Breaking Bad for whatever reason).

As with his segment on abortion the week before, John Oliver on his latest show shined showing the basic grifter nature of Trump.  But, it's hard to completely do the job, even putting aside that this isn't a news program.  And, there was a certain thing lacking here, even granting the above.  This is so granting that the point here was to show the problems with Trump specifically, which warrants we put him in a broader context.

He put up Cruz and Rubio's faces once and noted however bad they are, we at least know basically where they stand. But, one reason Trump is far ahead is that his competition in the party is horrible -- they are the Bud Lite* (insert other options) candidates at best. Also, the racist etc. stuff (even in some degree the fraud stuff) is the Republican Party too. Not to the nth degree like Trump with nothing there but to enough of a degree that Trump seems to fit.  Finally, John Kasich must have the sads that his face wasn't even put up there in that quick moment as a reasonable alternative for Republican voters at least.

Chris Hayes asked two commentators last night who Democrats should be rooting for today.  Kevin "I'm so reasonable" Drum and others tell us that supporting Trump even to divide the party and help the Democrats is dangerous.  And, his degree of nastiness shows some signs of instigating people, including not so veiled support of violence such as pining for the days when people could be beaten up.  This sort of thing will be out there, but the candidate here directly is instigating them and without the usual code words. Trying to point Cruz as "reasonable" here however is a yeoman effort.   Rubio isn't quite the conservative Christian establishment supporting asshole (though look who's endorsing him) asshole as Cruz, but has other problems as weak-willed sort that seems like an empty suit.

Again, if John Kasich -- still a big supporter of conservative policies and having asshole tendencies (it is a party requirement) -- was the actual alternative, it would be somewhat harder. The expected choice was Jeb (John Ellis Bush).  Probably harder.  But, the real alternative seems (though Rachel Maddow last night tried to push the possibility JK still has a shot) is Marco Rubio.  First, let me note that some Republicans must be upset that they have two Hispanics running (if one ala Obama of mixed race) and still are the "white party."  Anyways, Rubio isn't exactly strong enough to compel THAT many Democrats to try to be all "reasonable" here.

As both of the Hayes guests (Sam Seder and Charlie Pierce) note, why should they support Trump?  In fact, it might be the reasonable approach, since the only way to solve the problem called the Republican Party (much worse than Maria) is a clusterf like Trump. The party needs a big loss to maybe, just maybe, force itself to re-establish itself as a bit more sane. Another thing they can do is manage to let Obama's judicial nominee have a real confirmation process. (BTW, I hope he does that soon.)   And, as the guests note and I suggested above, Trump is not unrepresentative of the party or party's voters or something. He is the party's id.  Finally, like Sarah Palin in '08, I think at the end of the day he won't win in November.

That is put out there as the final threat and is a decent one in the area of "got to be reasonable here, people."  I don't think it would happen though and also we should be able to rely on voters not to do it. Checks are in place in part to avoid the temptation but I think it is a good idea in a way to put people to the test at times. Anyway, not thinking it matters on some level -- Trump voters aren't suddenly now to change their minds. They already voted in four states, even his loss in Iowa pretty narrow. And, now people like Gov. Chris Christie and other actual public officials are starting to endorse the guy to give him color.  And, on the fear for the unknown front, that very well might hurt the voices of sanity if Rubio being the nominee leaves a greater choice for a "sane" alternative winning.

So, my superego understands (up to a point) the problems with hoping Trump does well today and going forward in the primary/caucus process (Super Tuesday is not as significant as it was in 2008; one person noted only about a quarter of the delegates will be chosen as of today).  But, my id and maybe even my ego wonders.  Until recently, I was thinking Rubio would be the guy.  I'm not convinced otherwise yet.  But, it would be rather um interesting if Trump was the guy. The party well deserves it.


* John Oliver reference; Cruz is worse than Rubio so maybe that's too generous ... Cruz is more like actual urine.