Make It Stop, Please

Emails again with repeated evidence Comey at best did enough to deserve to be fired for incompetence. Make it about her, go ahead. OMG. Is it over, yet?!

Annie on My Mind

Enjoyed this 1980s (with a 2000s author Q&A) pioneer Y&A lesbian romance, which particularly does a good job giving us a window into the narrator's emotional and physical state as she falls in love. They met at The Met (ha) and used my IDNYC card to obtain an annual membership (if minus discount possibilities), checking out this very exhibit mentioned. Impressive and thanks again to all those docents who give interesting tours. Must now go to The Cloisters. Then, went to the Yorkville Library, well timed for this interesting book discussion, adding to an audience of mostly Pakistani women.

Cubs/Indians (Cubs win three after down 2-1)

Congrats. But, not very competitive after first three.

Update: Giants (in London, per Rams turnovers; offense mediocre) and Jets (in U.S., but comparable, Geno Smith out early) both win. Three way tie (kinda) for second/one game behind in NFC East. Fitzpatrick not really shining or anything as Jets ready to play string.

Against the Death Penalty

Various justices (Powell said so after he resigned) at some point came against the constitutionality of the death penalty. Two more said it was "likely" and this book provides that dissent with an added introduction and enhanced endnotes (Breyer doesn't do footnotes, so much of them basically translates references into them). The author is the wife of Senator Amy Klobuchar and wrote multiple books on the Eight Amendment and the death penalty.

The Real Liddy James

There are so many fiction books out there but I find it hard to get into most of them. Found this by chance and found it an enjoyable read. Liddy James is a divorced successful family lawyer with two kids who overextends herself and has a bit of a breakdown. We also get a window into her ex-husband's current partner (surprise pregnancy), whose voice we sometimes hear, and a bit of some other characters. Liddy isn't the only one at a bit of a crossroads. Good mix with a healthy touch of empathy including for blended families.

Gregory Lawler Executed

Supreme Court debate questions involved guns (HRC says gun regulation okay under 2A) and abortion plus HRC saying the Senate should confirm Garland (if they don't by January 20? not addressed) while Trump said RBG was mean to him. None on death penalty even with the subject matter due to occur by end of day. The execution itself involved use of a AR-15, the guy on death row for about twenty years. Failed challenge based on his autism diagnosis.

My Own Words

I think the Notorious RBG book is an excellent means to get a full accounting of the woman but this provides a chance to get her own words (with brief introductions providing biographic information, this originally planned to be a companion to a biography but she continues to be on the Court) on various issues such as women, a moderate approach to judging, dissents and usage of international law. Plus, various bench statements.

SCOTUS declines to rule in 1995 death penalty case

On an otherwise boring order day, Sotomayor (with RBG) dissented from a denial of cert. in a death penalty case, one relisted multiple times. On Twitter, Shon Hopwood (wife now in law school; just argued a case in federal appeals court) welcomed the dissent. Twenty years on death row raises a Breyer concern -- long time on death row -- but did not join. Maybe, it wasn't a good procedural case / wasn't likely to be granted cert., thus dissent of two.

Update: Chris Geidner on Twitter opined that the other liberals might not have supported Sotomayor's procedural analysis. Meanwhile, in the Northern Mariana Islands 2A news.

Kate McKinnon Talking About Her Cat

She's great as a whole, so full of life and hilarious. Plus sexy. Looks like Yogee.

Trump IS a Threat to the Rule of Law

Some pushback on the criticism of Trump saying he wants to jail Clinton, but as various comments suggest, as a whole that is an overcorrection. If a simplistic "never prosecute" rule [but not prosecuting predecessors has bite if you take everything into consideration] is in place or "take rhetoric totally seriously" is the issue, okay. But, it's more than that.

"Fair Punishment Project releases second part of report on small number of US counties still actively utilizing the death penalty"

Any one argument against the death penalty is only going to appeal to some people but the "unusual" nature of its application seems significant. The first comment here makes some points but as suggested by mine own think only so much. Anyway, it's not just any one thing.

Baseball Update

Somewhat surprising both the Red Sox and Texas were swept out. Turned out to be a FIVE game losing streak. Took some extras (Bumgardner out after five) for the Giants to last another game and five pitchers for them to blow it in the ninth in Game Four. Dodgers/Nats (eh to both) will go five. Theme: more Murph, Kershaw struggling some but Nats not taking enough advantage. Me? I'm rooting for the AL and Cubs. NY football depressing.

Update: Dodgers advance with basically a pen game, closer goes 2.1 and Kershaw closes (1st out was Murphy) with last two outs after pitching a couple days before. Instant classic.

SCOTUS Watch

Columbus Day and Yom Kippur means a short week but oral arguments in a jury case tinged with racism and for those who care a major Apple verdict. Orders (mostly uneventful) brought the first per curiam, basically SCOTUS protecting its turf if in a somewhat surprising fashion (who knew Booth v. Maryland still had a bit of life?). And, a tidbit on Kagan's recusal.

And Also: Afternoon order granting some cases, one with six justices (Sotomayor/Kagan out). Doesn't sound totally mundane either.

The Insular Cases and the Emergence of American Empire

And Also: Some thoughts on character by the Founders per Trump.

Today's Columbus Day (aka Indigenous People's Day) as well as Thanksgiving in Canada.  We can say the usual about the problems with Columbus, but you know, those "indigenous people" were a mixed bunch (see Aztecs etc.).  We cannot assume that people who were here first for all time have some right over the land or something.  Need to focus on the needs of everyone today.  Finally, there is nothing specifically superior about the people here originally -- if they by some quirk of fate established a nation in Europe, they very well might be the ones bashed today.

There is some connection to all of this and the title book because there too we are concerned with imperialism and the fates of the indigenous peoples. The book deals with a range of cases (the first set decided around the turn of the 20th Century) arising mainly from island possessions connected to the Spanish-American War (Alaska and Hawaii arise as well as does Samoa, which was obtained separately if at around the same time). Let me say upfront that though the subject is interesting, the book itself soon became tedious. There are lots of cases here and after a promising beginning, it became a trudge and a bit confusing to keep track of them.

The United States had numerous times to deal with new territories, including those involving the civil law / French and Spanish people of somewhat different cultures than ours.  Though the book shows even here (e.g., Latinos in the Southwest) were not trusted, all the same, they were basically European and seen as able to be brought in effect on equal footing. After the Mexican War, e.g., we didn't have concerns that Mexicans could not handle jury trials.  See also, though various ways of course were available to "deal with it," newly freed slaves after the Civil War.  The Supreme Court in fact dealt with the rights of black jurors at this time.  There was no constitutional argument set forth by the Court (if one by some in society) for some lag time to adapt.

In 1820, the Supreme Court dealing with D.C. broadly dealt with the situation of: "permitting the representatives of the American people, under the restrictions of our Constitution, to tax a part of the society which is either in a state of infancy advancing to manhood, looking forward to complete equality so soon as that state of manhood shall be attained." Speaking of an "American empire," the term "United States" even then was defined as "composed of states and territories." This was Chief Justice Marshall, a nationalist, but his successor -- in an otherwise of course dubious opinion -- similarly treated territories as equal to states in respect to general rights in Dred Scott v. Sandford. Thus, a person born in New Mexico Territory after the Fourteenth Amendment was still an American citizen at birth without naturalization.  It was part of the "United States." 

[Note that "equality of states" was also not just some neo-Confederate theme. The problem with the Shelby voting rights case is not that but the legitimate power to treat states differently given the differences some have as to voting discrimination. The special preclearance rule in place is of special significance but is "appropriate" given the need of the situation.]

Fast forward. Boumediene v. Bush, the final Gitmo case addressed the Insular Cases to explain why a new rule was developed:

The Court thus was reluctant to risk the uncertainty and instability that could result from a rule that displaced altogether the existing legal systems in these newly acquired Territories. [cite] (“It is obvious that in the annexation of outlying and distant possessions grave questions will arise from differences of race, habits, laws and customs of the people, and from differences of soil, climate and production … ”)

Ditto Reid v. Covert, the 1950s case that held the American citizens overseas should have the same rights as civilians at home: "These territories, governed and regulated by Congress under Art. IV, § 3, had entirely different cultures and customs from those of this country." But, Louisiana had "different cultures and customs" in relevant fashion respecting civil v. common law courts, but that wasn't the idea in 1803.  The reference in the final Insular case (1922, summing up the final principle that Congress has the power to determine if a territory is "incorporated" and thus worthy of full rights, basically amounting to jury and voting rights, the latter discussed in a John Oliver segment) noted:

Congress has thought that a people like the Filipinos, or the Porto Ricans, trained to a complete judicial system which knows no juries, living in compact and ancient communities, with definitely formed customs and political conceptions, should be permitted themselves to determine how far they wish to adopt this institution of Anglo-Saxon origin, and when.

Or, as the justice that announced the opinion in Downes v. Bidwell (the concurrence provided the ultimate accepted theory), "possessions are inhabited by alien races."  Yeah.  Many of the original cases also dealt with the nuances of tariff and other taxation, including the provision that "all duties, imposts, and excises shall be uniform throughout the United States."  This provided another wrinkle.  Finally, there was the general flexibility desired for imperial possessions, that unlike in Marshall and Taney's day were not necessarily going to eventually become states.  As Justice White noted in concurrence, pragmatic reality warranted a new rule:

Conceding that the conception upon which the Constitution proceeds is that no territory, as a general rule, should be acquired unless the territory may reasonably be expected to be worthy of statehood, the determination of when such blessing is to be bestowed is wholly a political question, and the aid of the judiciary cannot be invoked to usurp political discretion in order to save the Constitution from imaginary or even real dangers. The Constitution may not be saved by destroying its fundamental limitations.

Or, so was the thought at the time. Of course, it is not necessary a given that such a path be taken. The early cases were often split 5-4 with not only Justice Harlan alone in noting repeatedly the Constitution spoke of "people" not places here in respect to rights.  If newly freed slaves could adapt to "Anglo-Saxon" legal institutions, why couldn't those in Puerto Rico, the Philippines and so forth?  Is being on a jury or a unanimous jury requirement really so complicated for locals not to have a right deemed of fundamental importance to the founding generation?

At any rate, as John Oliver noted, even then there was this qualifier: "may for a time be impossible, and the question at once arises whether large concessions ought not to be made for a time, that ultimately our own theories may be carried out and the blessings of a free government under the Constitution extended to them."  That was over a hundred years ago.  Aren't we due?  It unclear what is left of the cases today.  Again, even then, there was this dictum of unclear reach:

We suggest, without intending to decide, that there may be a distinction between certain natural rights enforced in the Constitution by prohibitions against interference with them and what may be termed artificial or remedial rights which are peculiar to our own system of jurisprudence. Of the former class are the rights to one's own religious opinions and to a public expression of them, or, as sometimes said, to worship God according to the dictates of one's own conscience; the right to personal liberty and individual property; to freedom of speech and of the press; to free access to courts of justice, to due process of law, and to an equal protection of the laws; to immunities from unreasonable searches and seizures, as well as cruel and unusual punishments, and to such other immunities as are indispensable to a free government.

This amounts to a hint of substantive due process, which was recognized to exist to some degree by the Supreme Court at this time. Again, putting aside the then quite important issue of limits of taxation power, the core issue here were political rights. Juries were understood to be included there as seen by such things as juries being "polled."  Again, to continue:

Of the latter class are the rights to citizenship, to suffrage, Minor v. Happersett, 21 Wall. 162, and to the particular methods of procedure pointed out in the Constitution which are peculiar to Anglo-Saxon jurisprudence, and some of which have already been held by the states to be unnecessary to the proper protection of individuals.

Again, Balzac v. Porto Rico (1922) spoke of "guaranties of certain fundamental personal rights declared in the Constitution" and thus today people in Guam have abortion rights and Puerto Rico the right to same sex marriage.  Boumediene v. Bush showed that even in Gitmo rights to "due process" that case alluded to applies as well per habeas protections.  You did not need to be an American citizen to have them.  Thus, today, putting aside citizenship, it is unclear the reach of those opinions today. Still, e.g., in American Samoa not only are you merely a "national" but certain groups have special land rights, equal protection of the laws not fully honored. Locals there voiced a desire not to be American citizens though it is unclear there is no way to protect basic equality more all the same even with some local discretion in various respects.

A final concern, as noted in the John Oliver piece, are voting rights.  The general expectation that territories would eventually become states does arise there, but the Constitution does allow an extended territorial period where people are not represented by voting members of Congress or are able to vote (via electoral votes) for President.  Of course, this can cause problems, as seen by the eventually felt need for an amendment to protect (up to a point) the rights of those in D.C. to vote for President.  It is unclear why such a need -- after a century -- is not present in other island possessions.  The "may for a time" bit there is more of a moral command, since the Constitution sets up a certain system based on statehood to apply such voting rights.  The same can apply, per a case just last term, if Puerto Rico wants to be fully treated as a sort of state dual sovereign" rule).

The circle back to the holiday, handling Native Americans and tribal rights has been a long and somewhat convoluted process. But, Native Americans in the fifty states were naturalized. At the very least, they can vote for President though their ability to local home rule (including in respect to outsiders, as shown by a 4-4 case involving a civil liability issue last term) sometimes leaves something to be desired.  The correct approach there, especially if the tribe only has a tiny population is complicated.  A bit different when you are dealing with Puerto Rico, which has more people than many states.  Other regions also has sizable populations.

The matter should be pressed.

Two Films

My Summer Prince is was an enjoyable Hallmark film, including three older actresses you will catch for their younger roles ("Troi" is no longer you know sexy hot but she has a good role). No reference to what royalty actually does these days and the queen coming to Idaho was apparently rather local. The Final Girls involves some friends getting stuck into a horror film. Well done, good acting and feel of a 1980s slasher flick. "Film" might be "R" but not the film.

SCOTUS Watch

A race tinged death penalty case got the most attention in the first week of the term, but another criminal justice case that was even more tangled among procedural weeds should get some too. The claim: "harassed and beaten during a traffic stop and that officers knowingly falsified drug tests," but was it fit for federal court and how? Expect narrow rulings.

Trump Tapes

TPM has some good analysis, including how what is on the tape does not only reflect the man but his actions. The end game for Republicans now is to try (up to a point; some minority will go further) distance themselves but still seek to retain control of Congress. This can't be allowed. They made their bed and simple justice warrants they lose. But, it still looks damn close. BTW, you know the media (MSNBC was up late live) LOVE this. Finally, some said HRC should focus on herself more than being anti-Trump. Had point, but darn, he makes it hard.

Update: Bottom video. Wow. She ices it. Plus, everyone has BIG possibles -- PENCE OUT! TRUMP OUT! LOSE HOUSE! Eh. Calm down. Happy with comfortable Senate, closer House. There is a month. OTOH, "TO BE CONTINUED" feel here. Still, think there might be disappointments. Still, Garland in? Would be a pretty big gesture. Guess too late though.

Frequency

This is based on a pretty good film with Dennis Quaid as the father though now 1996 is the earlier period. The butterfly effect really shows here though it helps to get rid (for now) a tiresome boyfriend. Has potential if somewhat heavy-handed at times (well, it's the first episode) though the possibly dirty cops subplot is tiresome. CW so she's 28, though a few more years to make her a more experienced detective might work better.

No more baseball

Horrible ending taints game. Great game evenly matched. Not blown like that. AGAIN. Sick of Giants. No fan of Nats/Dodgers. I'm supposed to be enthused by Texas/Toronto? The Red Sox? Guess go Indians, but blah. Heart not in the rest of games.

Do Guns Make Us Free?: Democracy and the Armed Society

This expands on an Atlantic article and he has written others on the theme. Overall, it is a good warning on the dangers philosophically on civic society though wished he compared things more to the two times we had rebellions. Was the Revolutionary War valid under his reasoning and/or how were the times different? Plus, is a civil republican militia model (see Saul Cornell) sensible? Says he is open to some gun ownership etc. but book is somewhat one-sided there. Still the NRA focused rhetoric needs the corrective provided here.

SCOTUS Watch

There is a 5-3 split of Catholics (Sotomayor is the secular Catholic; Kennedy the one who is a bit cafeteria) and Jews (all appear mostly secular) on the Court and Garland is Jewish too, so it is fitting that the First Monday in October overlaps with the Jewish New Year today. Anyway, the orders were of little apparent note, one criminal one split 5-3. Some (like U.S. v. Texas -- rejected, not held over until nine were available) cases rejected of some interest. The Twitter brigade is back, including Kimberly Robinson with some good stuff.

Sports Update

A bit less embarrassing, but NYJ still had a bad game, not yet winning any of the elite games in the killer first six (minus Buffalo, not counting). Cards/Panthers struggling too but believe in them more to rebound. Pats 3-1 without pretty boy; could have been that with him. No surprises or need for Game 163 on the MLB front though it took a winning streak vs. Dodgers (slumming?) to do it. Various teams (e.g., Braves strong finish) had moral victories.

Update: NYG had another sloppy game, symbolized by an early turnover that turned good field position to a Viks score. Getting late early for both NY/NJ teams.

April and the Extraordinary World

Finally saw this. Very good. Better than Academy Award winner Inside Out.

Mets Clinch Top WC

4-3 nail-bitter. Why not? Congrats ... lots of problems but also lots of heroes.