Impeachment Resolution

I attached an update to an earlier post regarding plans for the Senate Republicans to pass a resolution criticizing the House impeachment inquiry. But, a stand alone also is deserved since it is historical moment. The House passed (one former Republican voted for it; two Democrats against, one apparently since he thought it unnecessary) a resolution to provide procedural rules, above and beyond the ones in place, including for involvement of Trump's side with a carrot/stick included. This shit is getting real.

Friends Season 4

I'm watching and enjoying as a whole binge watching Friends DVDs while also watching some episodes on television. I think once Chandler/Monica are together (S5) the show really starts to decline and the old energy/charm really absent once they are married.

S4 brings Emily and has other good storylines like Chandler being in a box to make up for "cheating" on Joey by kissing Kathy. The Chandler/Kathy relationship as a whole however is not really given much attention and it ends rather badly (Chandler suspects Kathy is cheating on him with a fellow actor she has a sexy play with and then Kathy really does it; Janice gets more respect as an independent character). The DVDs have three commentaries but again not with the actors. Best scene might be the Jellyfish explanation.

Execution Watch: Ray Jefferson Cromartie (Alive)

Ruben Gutierrez's execution on 10/30 was held up by state courts. He has an innocence claim.

Ray Jefferson Cromartie also has an innocence claim and even chose not to seek clemency to help promote it.  The trial court earlier this month rejected a motion for DNA testing and set a period for him to be executed, the span perhaps in place to avoid last minute delays from running out the clock temporarily as happened once this year when the Supreme Court (covered in a past entry) failed to decide in time:

Georgia has issued a death warrant scheduling the execution of Ray Jefferson Cromartie for the seven-day period between October 30 and November 6. The trial court recently denied Cromartie’s motion to permit DNA testing of physical evidence in the case and issued the death warrant before he could obtain review of that ruling by the Georgia Supreme Court. Cromartie’s lawyers argue that the witnesses against Cromartie have recanted their testimony or had motive to lie and that DNA testing will show that he was not the shooter.

In "what about the victim" news, the victim's daughter supports the testing: “Today I learned that the State has set a date to execute Mr. Cromartie without doing any testing. This is wrong, and I hope that you will take action to make sure that the testing happens.” The usual "damn abolitionists don't give a shit about the victims" types will ignore this sort of thing, which arises in some cases.  Some families of the accused have members who do not want people executed.  Repeatedly, there is a split opinion.

Cromartie was found to have been involved in a robbery a few days before the one involved here, but the person shot survived. There is no clear videotape evidence he was the shooter, but the video shows someone who looks like him and other evidence is present including him bragging about it.  Such is also the case with the robbery/murder that led to him being sentenced to die.  The government argue that the DNA evidence he seeks would not be enough to get him off.  Part of the evidence includes testimony of two people involved, a driver and someone with him at the time of the shooting, both who served time and now have been released.

A few days before the execution is scheduled, we given the menu of his last meal: "steak, lobster, macaroni and cheese, cube steak, rice and gravy, steak and cheese sandwich, double cheeseburger, fries, side of ranch dressing, strawberry milkshake and layered cake with white."  Texas ended this practice back in 2011.  I recall someone wanted to donate it to the homeless or something. There is a certain triviality to it though also sort of a basic respect of the humanity of the person sentenced to die.

To check the boxes, the issue of extended time on death row arises here since he was convicted over twenty years ago.  As to the innocence claim, from what I can tell, it is weak.  I'm not sure why the DNA motion cannot be fulfilled all the same -- such evidence will often not be enough to determine things.  But, a broad degree of care should be provided to fulfill the appearance of due process. Ultimately, why should a basic robbery/homicide that does not appear to be particularly heinous warrant the death penalty?  The whole thing was a horrid waste (the two couldn't even open the cash register and stole beer) but violent crime tends to be. A long prison sentence fit the crime.

Oh well. I tweeted that he was scheduled to die today but then found out an hour earlier that his execution was stayed. The controversy is if the execution warrant was authorized given he had an appeal pending. The briefing is due next week and by then we might have another execution. One is scheduled next week in South Dakota, which also uses an open-ended warrant here that lasts a week. Sunday seems an curious day to execute so maybe it won't actually occur on my birthday.

This seems like something that will be handled so maybe this post will be cited, perhaps in passing if he is executed next year.

The Death of Democracy: Hitler's Rise to Power and the Downfall of the Weimer Republic

The dedication of this book as well as a comment in the comments at the back suggests this book has special meaning for our times. I wrote some notes and will not try to summarize its detailed argument. Here's a review. Goebbels saying, “We want to build a wall, a protective wall" is but one parallel. Hitler's assurance he knows better than informed people etc. does sound Trumpian. One notable thing is how the lack of fixed terms for chancellors was used to override democracy and promote corrupt conservative ends. Good read.

Rep. Katie Hill Resigns

The election of 2018 brought various new young voices into the House of Representatives, including Katherine Hill (31) in California. Her Wikipedia page highlights her early work to address homelessness.  The video suggests the intelligence she brought to Congress.  Her bright future was suggested by her appointment as vice chair of the Oversight Committee, an article quoting Rep. Cummings (RIP) among those who saw her potential.

Youth and drive also might bring hubris. It was reported today (there is always something coming out, some news reported online) that she announced her resignation after it coming out that she had an affair with a campaign aide.  There was also allegations that she had a relationship, now against ethics rules, which she denied, with a House staffer. A House ethics investigation, which she said she welcomed was opened.

There is also a titillating aspect to all of this.  Not only is she bisexual but pictures (including one of her nude brushing the aide's hair) were leaked and made available on various right wing outlets. [I won't link it, but I saw the hair photo, her nudity pixelated; it was taken while she was on vacation apparently. It not covered by the ethical rules and the holier than thou justification for posting it is dubious.]  The husband was is separated from probably had something to do with this (the three had a "throuple") and laws might have been broken. The revenge porn nature of this should not be ignored and the whole thing investigated properly.

It's a shame that a promising young public servant like this should have to resign, but it is also a result of improvements in dealing with ethical breaches that her supporters support.  There is a basic coercive aspect to having relationships with subordinate employees and the possibility of abuses is apparent.  Plus, there is a general appearance of impropriety.  It is even more so when you are singled out, even as a frosh member, to be a vice chair of the Oversight Committee.  Yes, it aggravating others who did more get away with it. But, this is seriously changing in recent days. And, yes, the people who will catch violators here will often be hypocrites who try to "get" people for partisan reasons. This doesn't mean we should handwave things, especially (see Al Franken) when the people's wrongdoing is broad enough to warrant strong responses.

A male in her position, at least a Democrat in that role with all the baggage involved, very well probably would be pushed to resign. It is somewhat troubling that she is resigning before the ethics investigation.  This is something of a trend and it closes off a full investigation of what has happened, which leaves open questions.  Is it really impossible for her to not resign her seat while she is investigated?  Is this really something that warrants resignation? There might be more (perhaps she did have an inappropriate relationship with a staffer that she lied about) we don't know about.  And, again, her special role might cause damage to the party if she does not resign.  I still would have liked the investigation to occur, in part to show the value and ability of such a process.  The alternative is lack of clarity.

Ultimately, it is her decision, and perhaps this will help immediately start a process (she is only 32) where she can move on and rehabilitate herself and be able to continue her public service. We also do have to be concerned about a double standard (women, bisexual) being involved though again I think a male in her position would have been at risk. A special concern here is the release of the photos, which also might have factored into her emotional state and overall ability to be able to stay in office.  Revenge porn and generally abusive use of photographs and personal data is a serious concern.  She can both be a victim and in the wrong here when deciding that the public good along with her own needs required her resignation.

I wish her well.  She is not merely a learning experience.

ETA: There are mixed reactions on her resignation. Some were like "who is she?"  Others thought it okay given it appears she did violate ethical rules or rules of good conduct.  Some of this class were wary and wanted to point out double standards and the revenge porn aspect. Allegedly, hundreds of photographs of her are out there. And, some were basically against it, thinking a double standard was in place. Maybe, even that it was just two consenting adults.

As shown, I think it is a mixture of things, and am wary about her resigning.  Resignations probably happen too much in these cases or at least we need some time to process things. I was glad the governor of Virginia didn't resign for decades old racist acts.  Something like this probably doesn't warrant it either though it's more borderline all things considered. And, a double standard and probably personal stress factors in. Finally, and in no way besides the point, the misuse of photographs and so forth (audio, for instance) can raise a lot of problems in this age.

That is my take with a bit more hindsight. 

===

During the Astros/Nats game, Trump tweeted about some "big news." It turned out that a major ISIS leader was killed (or committed suicide to avoid capture).  This was formally announced by Trump (with some taunting and a lot of praise of Russia, since that is Trump) this morning.  The sort of serious military and intelligence stuff Trump badmouths when it suits are the people who did this.  The Kurds, who Trump recently screwed, helped too.

It would help if credible people led us at these times. The inability of Trump to do this sort of thing in a way that doesn't come off as moronic is bad enough.  But, the taunting can encourage martyrdom and retaliation (might happen anyway but didn't help).  The announcement could have worsened the situation. Plus, the killing of one leader likely was only so important.

This doesn't mean the whole thing wasn't net a good development long term. But, the nature of things makes it limited and the wider effort requires sound leadership.  We don't have it. 

Sports Update

Nats -- beat a pair of aces but lose to the 3/4 starters & then need to start a spot starter when your own ace is hurt? Meanwhile, Phils, not Mets, get the old Yanks manager for 2020. Jets/Giants both had a shot today; Jags/Lions might be "B" level, but were too much for them. Bills with a bit of a trap loss vs. Eagles. Sorta a blah football week.

ETA: Joe Ross did okay, but the Astros ace did better and Nats pen didn't help either. Oh, if we had a normal POTUS, he would have threw a first pitch at a Nats World Series home game. Or, the start of the season. We have an unfit occupant, who is booed and first pitch duties is given to someone is who is in effect a troll.

Early Voting

Early voting has came to NY and I today trekked (about fifteen minutes; the normal place is basically around the corner) to nearest location. Didn't have to, but why not? Forgot my new voting card which has a bar code that would have helped, but hey, let the poll worker get used to the new laptop sign-in system. No more book to sign. The worker sees your age and address so it serves as a mild unnecessary additional anti-fraud device.

Never got the idea we had much need for early voting in NYC, but it might help some. Rather it be like three days to deal with late developments. Anyway, races -- Bronx district attorney (primary was competitive in Queens), public advocate and a few lower level judges (no one knows anything about them; no choices this time anyway though you can write-in). Five ballot measures and each are not even single issues. Four are rather technical, one allows a delay during summer months for land use projects, which the NYT thought deserved a "no." The most important is a ranked vote proposal, which applies to city races but not DA.

Said "yes," wrote in a judge to protest and so on. Got my sticker and "early voter" armband.

Impeachment Inquiry Update: Senate Republicans Plan To Be Pathetic Assholes

Update: As was probably expected, a formal impeachment inquiry rules resolution has been crafted (summary) and rules for involvement of Trump's lawyers also were later crafted.  

Per one summary, on the day the rules resolution was passed with two Democrats (not Tulsi Gabbard) voting against and no Republican (a few didn't vote; two had family issues, one is on National Guard duty) voted for: "Trump’s counsel will be allowed to participate in the Judiciary Committee’s phase of the process by receiving evidence and staff reports, questioning witnesses, submitting additional evidence and being invited to offer a concluding presentation."

It won't surprise that the Republicans are not satisfied, in part because they aren't really fighting on neutral procedural grounds.  Since prudentially, the Democrats are going to want to make things look fair, we don't even have to rest on their general sense of fairness here.  This is so even if the rules require majority approval for various things like subpoenas, something basically a check on abuse. Things march on.

Living thru history is a mixed bag. Twenty years ago, Clinton was impeached.  There was a sort of unreality about the whole thing.  Unlike some, I don't "nothing was there" or anything.  It wasn't merely "lying about a bj."  In the #MeToo Generation, Bill Clinton's actions as governor and president were troubling, and interfering with an ongoing civil lawsuit alleged sexual wrongdoing would be rather frowned upon.  I don't think they went to the level of impeachment, but at the time also didn't like the assumption nothing was there. Still, the stakes were all rather low.

Things are a bit more serious now regarding Trump's actions, which has more of a Nixon cast given the "ratfucking" implications for at least one election (Biden is running for 2020, so the whole Ukraine matter affects that too), this time with special international aspects. There are also other more local, shall we say, problems though even there -- the emoluments issue -- it often includes international actors.  Also, there are various acts of obstruction of Congress and justice.  Again, more serious than Clinton's misstatements (perhaps perjury) and obstructions.

I have long felt an impeachment inquiry was warranted, but we are getting in "this is serious" mode. There is an assumption now an impeachment trial is going to happen.  We are now in impeachment inquiry mode though there was no formal House-wide vote to do so.  One is not necessary.  The process includes taking testimony, including in secure locations as needed, with members of both parties of the relevent committees present.  One person, and really think this should be more well known, is Mike Pence's brother.  This is comparable to a criminal investigation, one in which the criminal target does not have (during the investigation) equal rights to cross examine or anything as occurs later on, especially during the trial.

The impeachment inquiry is not the same as with the Clinton impeachment. The basic difference is that there was an independent counsel investigation (Starr) and his findings was released to the House of Representatives. The old law was allowed to lapse though so we are under a different dynamic now. There was a special counsel investigation under Robert Mueller, and while that went on, the people investigated had rights and lawyers and so on.  This restrained the investigation in various respects.  Now, we are having an investigation of the Ukraine matter too.  Likewise, other things such as Trump's taxes are being investigated by relevant committees.

Nothing special is going on here.  There is no injustice that I can see or violation of due process. Trump is repeatedly blocking the process, including by broad claims of executive privilege that is the subject of ongoing litigation.  I summarize some findings of a recent district court opinion on release of some grand jury materials being held up in this thread on the resolution I will get to momentarily.  It also continues my stance that one person (Dilan) has a simplistic view of what "political" means in the context of impeachments.  From the beginning -- see, e.g., The Federalist Papers -- the process is phrased in legalistic terms.  The House is a sort of "grand inquest" and the Senate is a sort of "trial." 

In the 1990s, judge removed by impeachment argued that the rules in place where a fact finding panel was used by the Senate violated its  constitutional duty to "try" impeachments.  Walter Nixon v. U.S. held that this was a political question, not one the courts will get involved in respecting the proper rules. Three justices would have left open some extreme case (such as a coin toss), but the end result was mostly the same.  The grand jury materials case shows that this does not necessarily mean that any impeachment related topic will avoid court review.  There will be legal and constitutional issues that possibly will arise.  One example might involve the rights of a witness or materials demanded from them.

Trump appears to be abusing the process all the same.  My leaving open some room for review is a good idea in general since in practice absolutism falls apart upon scrutiny.  But, generally speaking, the House does have "sole" power over impeachments and the Senate has such power regarding trials.  This brings forth a broad grant of authority. Claims of executive privilege should not interfere with this process; we are at a point where a possible witness is going to court to get a holding he can do so.  This was actually a count against Richard Nixon ("has failed without lawful cause or excuse to produce papers and things as directed by duly authorized subpoenas").  Years of litigation can run out the clock.

Republicans, with no grounds to challenge the merits, have cried foul about the process.  Fifty so far reportedly (Mitt Romney, Susan Collins, and Lisa M. of Alaska have not signed on yet)  have agreed to a Senate resolution that criticizes the process of the House investigation.  This is an appalling move on their part to dishonor the role and independence of a coequal house of Congress. Lindsey Graham, self-designated Trump bootlicker and Chairman of the Judiciary Committee (and House manager in the Clinton impeachment), is leading the effort.  Such a f-ing asshole.

• calls on the House of Representatives, prior to proceeding any further with its impeachment investigation into President Trump, to vote to initiate a formal impeachment inquiry;
• calls on the House of Representatives to provide President Trump, like every other American, with due process, to include the ability to confront his accusers, call witnesses on his behalf, and have a basic understanding of the accusations against him that would form any basis for impeachment; and
• calls on the House of Representatives to provide members of the minority with the ability to participate fully in all proceedings and have equal authority to issue subpoenas and other compulsory process.

This is all bullshit.  There is no obligation for the HOR to vote as a body to initiate a formal impeachment inquiry.  The investigations going on now are following rules last put in place by the Republican led HOR.  Republicans of three committees are involved.  It is not merely a Democratic led process. Republicans, including MIKE PENCE'S FUCKING BROTHER, are involved there to represent his interests.  Members of the minority are participating.  Every member doesn't have some right or need to be "fully" involved.  That isn't how Congress works. It delegates things to committees.  There is also not some "equal" right to issue subpoenas and so forth.  Elections have consequences.

Trump's "due process" also is not being violated. The blog link I cited includes someone who challenges the very idea since the whole process is "political."  But, that is an extreme way to phrase it; anyway, even he agrees that the structure provides certain procedural checks such as a supermajority vote to remove that in practice will require members of both parties to in some fashion agree. (This is less a factor in judicial impeachments though might be in special cases.)   In practice, the process provides a general fairness.  A lot of it has been in the open, the media has covered it, members of both parties are in the room, Trump has repeatedly asserted privilege and fought things out in court, rules are in place and Trump by the nature of his office has a lot of power.

To the degree there is some "due process" warranted, it has been supplied. The problem is not the concern (see also, Kavanaugh, Franken etc.) necessarily, but treating that term as if everything is akin to a criminal trial. Not that many of these people care too much about the rights of the average criminal defendant.  And, here, more is being sought than even present there. It is during the impeachment trial where full confrontation of accusers etc. will occur.  A potential criminal defendant does not get to confront accusers during the investigation stage.  Concern about the full nature of the accusations also occurs at a preliminary hearing.  Trump was not "arrested" or something.   If impeachment occurs, eventually, there will be a crafting of impeachment counts as a result of this investigation.

The particulars of the resolution can be challenged easily enough but the basic function is to suggest the process is unfair.  This taints the pool and to some degree serves as a "baby blanket" or some such thing (per one analysis I heard) for Trump to show Senate Republicans are being loyal.  The head of that thread I referenced argued that the basic resolution is unconstitutional since it interferes with the Senate's duty to not taint its trial responsibility.  Find that dubious, but the mindset is correct. It isn't quite as bad, given its symbolic nature, as blocking Garland.  Still, it is a violation of its basic responsibilities. 

This is a variety of things, including pathetic.  I had hoped that more than three (can a resolution be filibustered? will the holdouts force them to use Pence, which sort of seems bad?)  senators would at the very least let the House of Representatives do its constitutional duty.  Someone like Susan Collins running for re-election and needing campaign funds being a tool is somewhat expected (so, I would not be shocked if she folds).  Various Republicans can whine all they want (it's what they do), but this is a formal statement (which they have the raw power to do).

A few can convince themselves it is merely a message on procedure, but it is based on b.s.  The message is not merely that maybe there is something there Trump did wrong, but can we just do things more fairly?  It is that there is nothing there and the Democrats are left to being unfair.  One Republican commenter spoke of some unfair predetermined vote in favor of impeachment.  He was a bit less rabid than the usual bunch but had the same basic mentality.  If you do not agree with clear evidence, that's on you, it is not the fault of those who (for months now, years regarding the Mueller investigation) are setting forth the case.

This resolution is an example of how the Republicans have totally lost its way in the Age of Trump.  We need a new second party.

SCOTUS Watch: Order Day

After holding oral argument for some major cases and granting another, the Supreme Court will go on a bit of a break after today's orders (two executions scheduled at end of month). Note the next conference is 11/1. Nothing that notable.

As usual, a few interesting things. For some reason, it is taking time to dispose of all the partisan gerrymandering cases after June's holding they are non-justiciable. In a case Roberts didn't take part in, Thomas/Gorsuch tossed in a statement flagging their strong conservative federalist sentiments. And, an anti-censorship group submitting a brief flagged an interesting case not taken for review (the facts make "Judge Dick" being involved amusing).

ETA: There were also later orders that didn't agree to hold up an environmental lawsuit and of all people appointed Paul Clement to defend the constitutionality of the consumer financial bureau, which is weird, since the guy never argues the right side (I exaggerate only slightly).

The Sweetest Thing (Title Drop in Club Scene)

This pops up on television now and then & my general thought was that I wish it was better. A film largely about two women friends (Selma Blair is a butt monkey sort in some key joke set-ups, but the other two's road trip is the center of the film) acting badly years before that was more of a thing, plus Christiana Applegate? Count me in. But, the scenes are repeatedly framed in an amateurish fashion. Watching the whole thing, it is decent, but still hold to that. The commentary didn't really interest me. Plus, the film deep down is a tad conservative including the felt need to give them "happy endings." They are almost 30!

NFL Sunday -- Got to Laugh Edition

Jets play [horribly] Pretty Boy tomorrow but the Giants played the Cardinals today.

Cards were up 17-0 early but then it was 17-14 (blocked punt recovered in the end zone, helped by the Cards QB making a mistake). Giants repeatedly gave the Cards the ball. But, it was only a three point game as the two minute warning (two time outs) approached. Cards offense cautious. Deep in their own territory, the Giants go for it on 4th Down. 4th and 15. Uh okay. Seemed logical to punt, the Giants offense not likely to make that while the Cards offense wasn't great either. The head coach added to the flaw team's problems. Giants lose.

Growing pains. Various flawed teams. The Chargers/Titans game shows this. Each were 2-4, the Chargers more spotty than usual. The Titans was flawed enough that it looked like the Chargers would win. The Titans not being able to make 4th and a foot (if that; a missed extra point didn't help) looked like it would doom them. Um no. In surely the most amusing ending of the day, involving THREE goal line replays (two times overturning touchdown calls), somehow, the Chargers finally fumbled at the goal line. Titans win.

Trapped in the R.A.W.

Another good library find. A woman is trapped inside a library as an alien invasion takes place, but in the process is also one of the few survivors. Serious stuff. The first part is her journal of her experiences trapped there for around fifty days. Then, we get appendixes ("written" by various people) in the future once the journal is found and we get some further information, including "where are they now" material. Author has an interesting resume.

ETA: The Yanks stretched it to a Game 6 by scoring off Verlander in the first (and nothing else) and it was a bullpen game both ways. Yanks tied it 4-4 in the 9th, but their closer gave up a two run homer too and lost 6-4. The as expected Nats/Astros World Series.

Barr: Takes Break From Being Trump's Lawyer to Be His Minister

This promotion of a Secretary of State Pompeo speech on being a Christian leader was recently front page of the U.S. government's SOS website home page.  Not merely a person making a speech with religious themes while the person also had a government job.  Likewise, it is in no way a one-off for him, who seems to be up there as Pence's favorite Cabinet member.

Still, this just shows that the speech is shall we say "on brand."  The Attorney General of the United States has a brand too, but it is more as Trump's personal lawyer, a sort of consigiliere role.  Therefore, at least me personally, it seemed surprising that he had such a prominent speech on religion at Notre Dame. Again, it is not a problem that he talked about religion and its importance.  It is not even really a problem (though we can strongly disagree) his overall lines between church and state are misplaced. (Well, somewhat so, given his role.) His blatant sectarianism is problematic.  Plus, the hard to take preaching given his boss.

We have two different takes -- first, from an evangelistic history professor who is a strong critic of Trump and "court evangelicals."  John Fea leads with saying he agrees with a lot of the speech, but does flag some issues (e.g., it does seem focused on Christianity, even though it is putatively about religion and religious freedom in general).  His last bullet point also flags how "rich" some of the remarks about our responsibilities and "restraining individual rapacity" with a shutout to the House of Representatives as doing this a lot better than his boss.  He also challenges Barr on public schools and other matters.  It's a good summary.

It's not surprising that a secular coalition would find the speech bad though not challenging his right to have personal religious beliefs. The statement is basically a criticism of his bias and misstatements. Barr's general remarks on the importance of religious freedom is basically benign on the bland level.  An early red flag is a reference to James Madison on the importance of religion.  That's fine but oh you better also note that he had a strong view on the separation of church and state. The stuff about the need of a restraint outside of government and all that.  

A major sticking point is what exactly "religion" entails.  He sees things through a Judeo-Christian (emphasis on the latter; few Jews here in the beginning) prism:

First, it gives us the right rules to live by. The Founding generation were Christians. They believed that the Judeo-Christian moral system corresponds to the true nature of man. Those moral precepts start with the two great commandments – to Love God with your whole heart, soul, and mind; and to Love Thy Neighbor as Thyself.

But they also include the guidance of natural law – a real, transcendent moral order which flows from God’s eternal law – the divine wisdom by which the whole of creation is ordered. The eternal law is impressed upon, and reflected in, all created things.

The Founding generation included many non-Christians, especially if that term is not broadly defined (as many seem to wish) to mean supporting general moral values that are not tied to the "Christian" beliefs of the audience.  Thomas Jefferson honored Jesus (not "Christ") as a great moral teacher, but thought much "Christian" beliefs b.s. There was a general belief in natural law though there still is on some level.  People do not need to believe in God to think that human happiness requires a basic set of rules and justice that grow out of our general nature.

Modern secularists dismiss this idea of morality as other-worldly superstition imposed by a kill-joy clergy. In fact, Judeo-Christian moral standards are the ultimate utilitarian rules for human conduct.

People like Thomas Jefferson had no love for clergy. Also, modern secularists (a vague term -- clearly it does not mean here merely those with strong view on separation of church and state) again don't dismiss the importance of morality overall.  They regularly are strongly moral people who feel they have a special obligation in life to be good and are a lot less immoral than many like the people he works for and defends regularly.  They do not merely wish the government to restrain us though all talk of individual liberty is rich coming from someone whose party wishes to take individual liberty (such as involving abortion choice) away.

The speech rails against the modern age (nodding, as one must, to struggles we had in the 20th Century, but let's focus on the horrors of our secular age, not the past with more religion but a helluva lot of problems).  There is the usual feelings of victimhood and so forth:

These instruments are used not only to affirmatively promote secular orthodoxy, but also drown out and silence opposing voices, and to attack viciously and hold up to ridicule any dissenters.

Yes, where oh where will we hear about these points of view that are expressed by those that now control the Senate, White House, a majority of state legislatures and are still a significant voice in the House of Representatives?  That is even using the stereotype of Democrats as secularists.  It was noted, e.g., that Nancy Pelosi used a lot of religious language in recent remarks.  Likewise, multiple Democratic candidates for President regularly do as well.  Put aside the b.s. about blaming secularism on modern ills  or simplistic ignorance on the complexity of the beliefs of those (who easily could be a quarter of the population in some fashion) who disagree that "Judeo-Christian" morality (whatever that is -- Jesus' redmeption of humanity on the cross, e.g., doesn't seem to me to have much to do with anti-homosexual beliefs) is the way to go.

A taste of the sort of thing that bothers me -- it's not the argument that religion is a necessary part of human happiness:

So the reaction to growing illegitimacy is not sexual responsibility, but abortion.
The reaction to drug addiction is safe injection sites.
The solution to the breakdown of the family is for the State to set itself up as the ersatz husband for single mothers and the ersatz father to their children.
The call comes for more and more social programs to deal with the wreckage. While we think we are solving problems, we are underwriting them.

This is crap.  Serious crap.  The reaction to growing illegitimacy is concern for the complexities involved, not limited to changes in society (hint: it didn't turn on secularism) that threatened family integrity. Not that family life was all Leave It To Beaver back in the day either.  Plus, to the degree this includes not just reproductive choice based on individual morality (freedom of religion is great) but governmental involvement such as health care and so forth?  Nothing new here.  The push for national health care goes back to at least the 1940s.  The government also was always involved in some fashion here. But, it was never just that.

The reaction to drug addiction? Likewise a range of things, including personal in nature that involves a range of approaches. Not that safe injection sites are a bad thing.  They very well can be good social policy. He just tosses it out there as a potshot.  The fear "the State" will take over the family is also moronic.  First, again, the government in the past quite often intruded in family life.  Second, things like a broader definition of what a family includes (such as same sex parents) is a common thing here.  The people don't want the government as the parents.  And, for the 100th time, your party aren't a bunch of libertarians!  Your party in lots of ways intrude in our lives, if in conservative ways.

Plus, there is nothing specifically "secular" about those who have a more socialistic (not a bad word) view of how government should work. Loads of people here believe in Jesus Christ or some other religious belief.  It is b.s. to say otherwise.  These issues are too important for us to be preached crap by someone who is defending an immoral menace.  I'll toss in a favorite example of mine.  PPACA, which their party threatens daily, is in place to better protect our health and well being. In the process, it better allows people -- not forced to choose out of want -- to live their lives pursuant to their religious values.  Hard as it is to some (I saw this) to believe, this very well can include contraceptives.  Universal health care might allow businesses, e.g., to be less involved. Are they for that?

The speech is not geared to a neutral defense of religion -- again this blog repeatedly explains this term is quite open-ended -- but a certain set of religious beliefs.  The silent parts are said aloud. "Moral relativism" is seen as a threat, which is a tad different from religious liberty:

First, either through legislation but more frequently through judicial interpretation, secularists have been continually seeking to eliminate laws that reflect traditional moral norms.

What "tradition" moral norms?  The "watershed" here was of course Roe v. Wade.  Why not the contraceptives ruling?  Abortion has been performed throughout our history. At any rate, religions have a range of beliefs on its morality and it in no way is merely some secular act to allow individuals to use that, not the selective force of the state (the horror), to make choices here. The state is not there to force us to do that, right?  Natural laws, to the extent that is a thing, don't go by the wayside because of limited government. He seems to want his cake and to eat it too.

More recently, we have seen the law used aggressively to force religious people and entities to subscribe to practices and policies that are antithetical to their faith.

The problem is not that religion is being forced on others. The problem is that irreligion and secular values are being forced on people of faith.

The proper balance of religious liberty and the state did not suddenly "recently" (some fictional golden age is common here).  Many "traditional" moral norms were in fact largely a result of certain religious beliefs dominating.  Public schools were used (well used more) to promote Protestant values. This would seem relevant given the location of his speech.  Secular values are always going to be present in some fashion, since we live in a society with laws.  Laws that do not establish religion.  Nonetheless, this still doesn't mean that irreligion is being "forced" on people.  Requiring equal access in public accommodations is not that. Unless that is code for something else.

Accommodations also are made.  They always have been. The range of religions and nature tendency to favor the majority here complicates this.  The result repeatedly was to favor certain religions, not secularism.  RFRA is referenced.  Yes, some things are recent.  Why?  Well, one reason is that pre-RFRA, the rules on required accommodations are stricter than they once were.  The Hobby Lobby dissent could appeal to multiple decades long precedents. The majority argued RFRA expanded the reach of accommodations.  And, in that case, employees with different religious beliefs were burdened.  What of their beliefs? 

The speech complains about public schools that pass teaching requirements about LGBT curriculum that clashes with the beliefs of some people. Lots of Christians strongly support such things.  Religious liberty now is threatened by public schools teaching things that promote equality because it clashes with certain religious beliefs.  What beliefs matter here? Can parents opt out of evolution classes?  Those that honor feminist principles they disagree with or why not racial equality?  Public schools promote certain values and they do clash with certain beliefs. There is an option here to go to private schools.  It is not a threat to religious liberty as properly applied in our system.

Barr also opposes states that choose not to use public funds toward parochial education. This is a longstanding strand of public policy and well supported by his pal James Madison.  It is not a threat to religious liberty to avoid using our money to promote religious beliefs we do not believe. At the very least, it 's a tricky issue.  Arguments can be used in both directions and it is not "secularist" necessarily to be on either side. James Madison thought funding of religious institutions would threaten religion.

If Catholics want to promote Catholic doctrine, they have every right to do so.  They are limited when they mix with the public sector to some degree. They, for instance, cannot deny minimum wages to their employees. If a janitor at a church wants to use their wages for non-Catholic reasons they can.  They also have the right to pick and choose their ministers and educators.  The lines here are open to some debate.

A third kind of assault on religious freedom in education have been recent efforts to use state laws to force religious schools to adhere to secular orthodoxy. For example, right here in Indiana, a teacher sued the Catholic Archbishop of Indianapolis for directing the Catholic schools within his diocese that they could not employ teachers in same-sex marriages because the example of those same-sex marriages would undermine the schools’ teaching on the Catholic view of marriage and complementarity between the sexes.

It is not "secular orthodoxy" to determine that employment laws require some degree of non-discrimination.  Someone running for POTUS who seems to want us to think him Latino by using the nickname "Beto" (okay; this just annoys me) tossed in an answer at a GLBTQ forum that he thinks that "churches" can be denied tax exemptions for not supporting same sex marriages.  Going that far is dubious though I'm not sure if a neutral tax exemption law (which would not just focus on one view on that subject but perhaps have a general equality string) would actually be unconstitutional.

(The lines to draw regarding other religious institutions can be tricky like when denying religious colleges who opposed racial mixing was upheld. Another issue would be allowing Catholic adoption groups, e.g., to be included in a state system even though they discriminate.  This is a touchy issue that has some emotional salience since needy children seem to be harmed.  But, again, what are the limits there?  Should the state welcome adoption groups that are racist?  "Traditional" values would have once upon a time thought that fine too.  Anyway, if the speech tossed in such perhaps harder cases in among a generally fair speech, fine enough, but it did not.) 

But, even in this scenario, the choir master or whatever still has to teach Catholic doctrine when required.  If the lawsuit should fail (and why the feds should interject in a local dispute is unclear), fine, but even there his remarks go too far.  Overall, religious liberty is great, but when he says:

I can assure you that, as long as I am Attorney General, the Department of Justice will be at the forefront of this effort, ready to fight for the most cherished of our liberties: the freedom to live according to our faith.

does he only mean "our" faith?

Supreme Court Watch

Update: Friday afternoon brought news the Supreme Court will hear a few more hot button cases, including the power of the executive to remove the head of Elizabeth Warren's baby (Consumer Financial Protection Bureau).  The two immigration cases raises the typical Roberts Courts scenario of Gorsuch perhaps voting with the liberals (sorry to use that word, folksy, know you don't like to put justices in boxes). 

Monday was a holiday so Tuesday was the first day of oral arguments and was an order day.  The order list was the usual stuff of little note with some interesting cases mixed in (lots of cases are not certworthy) and things like filing under seal and such that I wish there was an Explainer to clarify. Since dissent from denial and not taking a case requested by the government is of at least a bit note, here's a summary:

The justices also denied the federal government’s petition for review in a dispute over lawyers’ fees in a case filed by a Stanford University graduate student who was inadvertently placed on the Transportation Security Administration’s “no fly” list. The U.S. Court of Appeals for the 9th Circuit ruled the district court was wrong to find that the federal government had not acted in bad faith, and now that ruling will stand. Justice Samuel Alito indicated that he would have granted the petition, while Justice Elena Kagan was recused from the case.

Religion Clause Blog flagged a denial involving a high school lesson involving Islam.  A student did not want to take part in a lesson plan (including writing answers on a worksheet) with material (including two words of Islamic doctrine) she did not accept.  This would be an open-ended opt-out for those who oppose ideological content that they don't accept.  There is also a bit about Muslims having stronger faith on average than Christians, a dubious statement of fact, but not something that raises First Amendment concerns.  It does show that teaching religion warrants special care and not sure how that line staid in there to cause problems.

Near the end of the order list, we see that Chief Justice Roberts did not take part in a case against him and others ("et. al.").  Doing a docket search via the docket number, it turns out to be against Roberts and Trump, "President" (scare quotes in original) making a one person, one vote argument against his electoral college win.  Roberts was included since he allegedly wrongly swore him in. The petition, which again doing a search seems to be a result of an actual lawyer, is quite a read. Let's say it includes some personal beliefs on Trump himself.

Though the solicitor general did waive a reply, this thing went thru two levels of federal court review as shown by the "appendix" with a lot of material.  On some level, this is a waste of federal court resources though it probably a bad idea to sanction him for it.  It is on another level ... well fun ... to read the stuff and argue that hey equal protection concerns (which after all are based on amendments that come after Art. II and even the 12A that set up the Electoral College) do arise here.  I won't go into his treaty claims (admit not reading his explanation).

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The major set of cases this week involved an appointments dispute arising in Puerto Rico that in monetary terms can involve billions (really?) of dollars.  A trivia point is the number of current or previous federal solicitor generals (three) involved in the argument.  The nuances of the issue are important though I won't try to parse them here. This is one of those major cases of national import that do warrant Supreme Court review more than the average case.  It is also one of those situations where a single national holding is important on some level above and beyond exact what it is.

The preview helps clarify that the case partially turns on if this is merely a local matter (Puerto Rico) so perhaps they are not "officers of the U.S." that require Senate confirmation.  OTOH, there is a doctrine in place that could prudentially accept the holding of the board in question anyways. The fact Puerto Rico is a territory [which popped up in the non-unanimous jury case since it has them] also is relevant though when the lawyer for the employees (the one non-S.G.) brought up the Insular Cases (which treats them differently), particularly for them to be overruled, the justices seemed to think they were irrelevant:

Further evidence that Congress does not need to comply with the appointments clause, they say, can be found in the territory clause of the Constitution, which gives Congress “full and complete legislative authority over the people of the Territories and all the departments of the territorial governments.” And historically, they add, Congress has not always complied with the appointments clause when selecting officers for U.S. territories.

By chance, Kansas has another case up for oral argument in the second week.  It involves if a state law against identity theft and such involving citizenship  data is pre-empted by federal law. An important question of local discretion.*  The final case (I'll skip some statutory case few care about) involves the reach of a pre-Trump Court case (decided 5-4 though a later case regarding applying it was 6-3 with Roberts in the majority) the blocks mandatory life with parole for minors even in homicide cases.

The case will help clarify how the new membership will deal with the old precedent.  It also has special cachet since it involves the D.C. sniper. The chance he personally will ever see the light of day is dubious, but the decision will affect various others in prison.  One issue in the case is the artificial nature of addressing a case that occurred years before the Supreme Court decided this issue. As often occurs, it also has nuanced technical questions.  But, the bottom line for me is that it makes sense to merely give a person in this situation a chance to argue that they are not so hopeless to warrant again merely the hope of parole.  And, at set periods -- you know like Charles Manson had -- have parole hearings that the body in question can simply use to deny him parole.

I was online when the sniper attacks occurred and one person over at Slate reminded me of the special fear involved at that time when going out in a certain broad area put you at risk at being shot by a sniper rifle.  I'm glad I was not doing my year of execution posts the year that John Allen Muhammed was executed.  Problems could have been cited and were by three justices at the time. People have mitigated Malvo's guilt to some degree, but don't know how far you can go there for the ten deaths and other people wounded here.  But, simply put, if he is out in forty years or so, would it really not be fair justice?  Still, that isn't even the point here. It is the chance for him to argue he warrants parole at some point.

The breadth of the original ruling was fought over by Alito and Sotomayor particularly in certain orders since the ruling and this one might clarify that. And, this too is function of the Supreme Court, even if we might not like the end result.  I do feel compelled, though others might say we need to accept reality bad as it might be (there is a basic legal concept there too), to flag that two people on this Court -- including Kavanaugh who appears a possible swing guy in the Kennedy role -- are tainted.  This is the first full term (Kavanaugh coming on a bit late in 2018) with both of them and there are signs it will be when the new court "truly arrives" so to speak.

I continue to find the whole body tainted.

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* Gorsuch in an earlier case jumped in to make a joke of sorts when the government said such and such was an easy call before the person's opening time was up. So, it wasn't the first breach (as suggested by one article), but Sotomayor did interject (corrected by Roberts) here before a person was done to start to ask a question. Old habits die hard.

We Are All Good People Here

Good find on display at the library though I thought it would be somewhat more evenly handed. Two women with some differences meet in a Southern college in 1962 and we view things thru their eyes (and one of their daughters; another is seen indirectly) over the next three decades. One eventually goes into death penalty defense work. The book basically favors one, the other more heart than brains. I was waiting for some redeeming moment but it never really comes. But, the characters are good company and it is well written.

One woman comes off as more practical while the other is idealistic but not practical about it. In time, the first one becomes very idealistic, while the second has a chance to be practical (teaching kids etc.). But, then, she becomes a radical without nuance and then puts that behind her for "straight life." She isn't really given a chance even to show that side of her that was a good teacher of kids. We shift to the first woman's daughter. The book is well written and the characters good company. Still, the second character becomes just a depressing figure especially at the very end. Seems unfair.

Columbus Day

Yesterday, there was a parade nearby, this being an Italian neighborhood. Columbus Day has various shades of meaning including a "well that's one way to make us truly American" Italian component (need better holidays!). Some want to rename it "Indigenous People Day" or something (a sort of "you didn't kill us off yet!" thing?). We don't do this that well, but I see some value in retaining the holiday to honor all the complexities. Not just a day off for sales or some fictional history. Yesterday was also AOC's 30th birthday. She's now old.

ETA: Tuesday brought a Nats sweep via a seven run first (so many of these innings!) and they hung on 7-4 (bases loaded in 8th!). Democratic Debate #4 with Warren the target, suggesting her frontrunner status (Biden also has fundraising issues). Sanders still with a ceiling.

SCOTUS Term Begins: Viewing the Court From the Outside

Years back, I purchased Peter Iron's May It Please It Court collection, which for the first time to a wide audience provided excerpts of oral arguments of major Supreme Court cases with limited commentary and a book with transcripts and discussing the cases with excerpts (like a casebook).  There was some problems with the editing (including wrongly citing who was talking, which happens at Oyez.com too in older cases), but the overall idea was something of a revolutionary moment. Irons in fact broke the rules (only private research and teaching) in the process though they changed.   In time, we had complete arguments via Oyez.com

It took until October 2010 for the Supreme Court to provide audio on their own website. Now, we have a practice of having Friday release of audio (some are pushing for same day audio, I assume since it would be timely for news purposes, but especially with same day transcript, this doesn't to me seem that big of a deal -- still, live audio ala C-SPAN easily can be done and the reasons against it are also hard to justify).  The push these days is to provide video (C-SPAN plays audio for select cases and shows pictures of justices/advocates; John Oliver encouraged use of a "dog court" his staff set up and some cases can be found online there), especially since many jurisdictions here and abroad (know of the UK and Canada) have them.

We don't have opinion announcement audio though for many cases -- and all of them basically in more recent years -- you can find that at Oyez.com too.  These are the summaries on opinion days that announce the judgment, vote breakdown and provide a summary of the result.  In a few cases, where it really matters to a justice, you also might have a dissent from the bench.  It is an informative and ceremonial act that clearly has some value in the minds of the justices since they could simply post the results without doing it to the small audience in the courtroom.  These rarely come up when the issue of audio/video arises and it would be a good next step.  I saw one legal journalist say justices were concerned about the non-official nature of opinion announcements but they handle headnotes. 

They do not say ahead a time which opinions will be handed down though do announce (and one can call an information number to get expected days here) when "opinion days" will occur. There are also scheduled days, with release timed a half hour before oral argument (or 9:30 generally), for orders.  Random orders also might be released as necessary such as last minute death penalty appeals. As with audio/transcripts of opinion announcements (which pop up on Oyez.com eventually), use of video for these non-oral argument duties would be logical. The concern about advocates playing for the justices or selective clips or whatever are even less relevant in such cases.  And, there is an overall ceremonial nature to the procedures anyways.

A final thing to toss in here is the addition of blogs and Twitter.  SCOTUSBlog has a popular feature now that provides a "live blog" on major opinion days late in the term, first answering questions from readers and then announcing things as they come. We also see this on Twitter, with a set number of law reporters providing summaries and updates. And, this is true after oral arguments too.  Finally, there is a "view from the Court" feature, a sort of color commentary, beyond individual discussions of oral arguments to give a "you are there" view of things. Of course, if we had video, we could get a better sense of this ourselves.  

We are dealing with a somewhat limited group here, surely, but C-SPAN expanded the public at large viewing government in action. The same applies to the Supreme Court (and in a much more limited way lower courts too) and now we have High School SCOTUS (the lead girl there recently met Justice Kagan).  A few justices in particular (and whatever Gorsuch is) feel a special concern about educating the public about the Court.  It would help here if they did more to let the outside view them.  For instance, why not post a view educational videos, including an "inside look," on the website?  Or video of the various Supreme Court education society talks that one or more justices often go too.  Unclear.

===

Anyway, the Supreme Court has some major cases this term as seen by the first set alone.  As usual, there are lesser cases though even one involving the contours of the insanity defense (listening to the oral argument, I admit it somewhat went over my head) is of some note.  You can go to the SCOTUS website (which has docket pages etc. though it probably can be set up better), Oyez.com (which allows you to follow along with the transcript, pictures of the justices and gives a larger summary of the case)  and SCOTUSBlog to get audio and further material.

Oral argument provides each side thirty minutes (sometimes it is split as in some of the cases this week between let's say the federal government and a state party) to make their case as well as the justices a chance to engage with them and often really each other.  A new rule this term, which is sensible, gives the person two minutes to summarize (one minute in a split case) their position before being questioned.  Often in the past, e.g., a justice right away went after an advocate before they could even say much about their position at all. Of course, there is a lot of written briefing.  But, and I take their word for it, I have seen multiple justices (including Justice Harlan II) say oral argument helps them.  It is also a public exercise, which has its own value. In early days, extended oral argument was a sort of public entertainment but even today there is a bit of that. Plus, it has a civics function.*  Video could help here, especially since seeing helps the process especially in the modern age.

[The two minute rule by various accounts got good marks. In one case, Gorsuch couldn't help himself, and before the time was up made a joke about something an advocate said in his folksy fashion.  Asshole. The new rules also makes it easier to set aside five minutes for rebuttal.]

Somewhat like early years, these days, there are a small set of repeat players in these arguments (such as Jeffrey Fisher, who argued for unanimous juries), which provides some familiarity and special skill. The ability to go as far as easily cite page and verse is akin to some actor remembering a lot of lines in a play.  The oral arguments are still a mixed bag, especially with so many questions that break up the ability of advocates to totally make their case.  The arguments often are interesting though many of them are more technical affairs (Congress on C-SPAN also is often rather tedious).  Also, they also leave a bit of a lack.

Take the unanimous jury case.  An interesting thing that arose there was not just that the UK allows non-unanimous juries but that Puerto Rico does. I am aware of Oregon, the only state that now allows them.  (The case involves Louisiana, which recently changed its laws, but the new rule is not retroactive.)  The Supreme Court, as seen in a recent case involving the Fines Clause (which was not expressly incorporated though dicta suggested it was), basically applies the Bill of Rights the same for the states and the federal government. The Third Amendment never came up, really, but basically every other provision is incorporated, applied to the states. For instance, the Second Amendment eventually was in 2007.

But, juries are treated differently.  Both sides, and this confused Kagan, basically assumed on this question you had to treat them the same. There is an early 1970s case, however, where the swing vote (Powell) did not.  Four justices said neither states or the federal government required unanimous juries (at least in non-capital cases).  Four justices did.  Powell said you did for the federal government.  Even the state here seemed wary to rest on his vote.  It made the harder case that in both cases you need not have unanimous juries.  Finally, when pressed, the advocate said she was surely open to respecting the precedential effect of Powell's vote.  Kagan, e.g., tried to evenhandedly respect precedent, especially after Alito rather snarkily cited the liberals calling out the conservatives for not in a few cases.  This in this case, of course, would help enforce a more conservative rule.  Me?  I would be careful here, since liberals one day might want to get rid of Roberts Courts precedents.

Kavanaugh flagged the possibility that the states chose not to use unanimous juries for reasons that rubbed of racial discrimination.  In general, it is cited as an important way not to crowd out minority viewpoints, which need not be only racial.  One thing I would add here that didn't come up (though briefly was in the original oral arguments when the rule was first set that can be found at Oyez.com) is that it could help if the jury had to deliberate for an extended period of time. So, perhaps, a 10-2 vote can be allowed if deliberation occurred for three days. Anyway, the race discrimination angle can make it easier to overturn here, but what about Puerto Rico?  The wrinkle there is an old and in this context one would think long disfavored two tier approach treating territories differently (Insular Cases).  Logically, that would be the next domino.

I think a good case can be made that unanimous juries should be recognized as constitutionally required, especially if forty-nine of fifty states have them.  We then have the issue of what to do with the tens of thousands of people in prison under the system, there being only limited records of how the jurors voted.  The number seems artificial -- only a small number must actually have had jury trials with plea bargains and all. That was one thing that was not flagged.  There are also existing rules regarding "new rules" here that apply newly founded constitutional rules to other cases in only a limited fashion. To be continued.

Anyway, I wish more would have been discussed regarding the Supreme Court treating state discretion over juries differently. It does not only apply here, after all -- what about grand juries? That provision of the Fifth Amendment was never incorporated.  Need it be? Why not? Maybe, the nature of the jury is different, but it shows how states have more discretion.  The Seventh Amendment also has not been incorporated, giving states more discretion regarding civil juries.  And, the number of jurors need not be twelve.  Kagan did touch about this flexibility, but it was not covered much at all in the argument.

===

The big argument involved employment discrimination by sexual orientation or transgender status. Pamela Karlan, who lots of law professors et. al. stanned as the kids say, handled the first (two cases) and David Cole (a big civil liberty figure too) dealt with the second.  One thing that stood out here was that you would not really know at times that for years now many lower courts have recognized that "sex" discrimination per the federal law in question covered this sort of thing.  This is so even if when the law was first passed and applied it was not understood to so include.  Cole flagged this -- the details here aren't totally novel.

In the same sex marriage cases, various people wondered why the Supreme Court did not cite it as sex discrimination.  On a basic level, it is, especially if we look to why people discriminate here (the term can be a good thing -- discriminating tastes -- but here means "invidiously" so) and find it distasteful.  There is an ancient belief that there are certain sexual roles for men and women; homosexuality appears to violate them.  In fact, in ancient times, there was a power dynamic involved -- the "receiver" of male sex here was basically in the weaker or "feminine" position.

But, sexual orientation does in a general sense seem to be a different category and laws so separate.  Thus, there is a whole "gay community" and so forth.  The term "gay marriage" really is a misnomer since one need not be gay to marry a person of the same sex.  But, the term is readily used since there tends to be a general overlap.  So, there is something of a facial credibility to the argument against here (harder for transgender though, probably).  This is even so if we cite an earlier case where men treated another man as if he was gay and was held to be a victim of "sex" discrimination.  In an opinion by Scalia (leading Gorsuch to be the possible swing vote though he also was concerned about the major social upheaval with so ruling ... though it's unclear if any really would occur ... putting aside that his alleged legal philosophy involving textual meaning shouldn't really take that into consideration).  That is still a "sex" role issue.

The logic of the case however still holds.  A person who is discriminated because of sexual orientation would not be if they had the "right" sexual orientation.  The difference boils down to sex.  It already is the case that there is clear cases of overlap such as people deemed not properly masculine or feminine deemed homosexual.  [Pamela Karlan opened her argument in a striking way by citing epithets in such cases such as a "fag."]  As with a broad view of sexual harassment only arising in the 1980s, yes, early cases did not apply the legislative text in that fashion.  Separate laws to specifically address the new areas very well might be sensible but the old laws still would apply.

Thus, it is acceptable to argue "sex" and "sexual orientation" don't completely overlap and still say the laws apply. The supporters of the employers here  rely on the differences. But, you can grant that and still say the laws apply.  There is also an appeal to letting the popular branches address the issue, but there is a certain question begging issue there if the original law applies.  The fact a law has some unexpected consequences does not change that.  Anyway, the people have fought over these issues and the changes there does -- Justice Breyer flagged this in the second argument -- does color how we today should apply it.

The application to sexual orientation and transgender will raise some different issues, but so did the broad usage of sexual harassment rules. Sexual harassment rules complicate setting the contours of proper workplace comportment in ways that at times raises even free speech concerns.  The overlap between "proper" sex roles and these two categories also suggests a different in degree not kind in many cases.  As would other factors. Take the bathroom horrible. As a matter of common sense, someone who looks like one sex [if with different genitalia]  would be out of place in the bathroom of the other sex. 

But, this is the valid application of the term.  In time, a full understanding of equal protection as a constitutional measure included women. The people who originally wrote and ratified at best only thought women would be protected as a class in a narrow way.  All the same, the overall meaning and purpose of the text does apply to them.  If such a thing can apply to a constitutional text that is so much harder to amend, why not statutory text which the legislature can later address if they think the courts decided wrongly?  As to statutory sexual orientation protections, a blatant case is poll taxes -- we have an amendment limited to the federal government but the Supreme Court soon used equal protection to apply it to states. Anyway, the GLBT legislation on the federal level in the works is broader.

Pamela Karlan did not say much of that sort of thing, focusing more on arguing that the text requires a wide reach as applied. There is no "change" going on here though now retired Judge Posner in his fashion acted as a truth-teller and basically said it was but still was okay.  This is realistically a good idea (aim to say you aren't asking for much), especially with this Court.  Still, it's okay to express the whole story.  Over time, statutory text might have content that can change some as the times change, and this is recognized as a sort of assumed rule without additional comment.  RBG noted this in a brief concurrence last term that to me seemed a sort of "Easter Egg" or something in reference to these cases that were due to come up at some point.

Again, the questions (including bathroom parade of horribles) aren't really novel.  Lower courts in many circuits applied it to sex and transgender, plus various states and localities have GLBT protections in place that handle that sort of thing.  The EEOC (the SG going against them) also so held: "Sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee  less  favorably  because  of  the  employee’s  sex."  When the SG said the text of the law clearly went the other way, maybe this should have been noted.  The oral argument at times implied a novelty that was not really there. 

(One of the gay discrimination cases arose out of the 11CA, which relied on 1970s precedents in that circuit to hold against the "sex" discrimination claim.  It would take en banc reversal or a clear Supreme Court reversal to get around that.  This makes things complicated, but doesn't at the end of the day make relying on outdated cases, which were thinly argued in the first place [see, e.g., an analyst on Gay USA this week.] that sensible.) 

One guards against predictions but the unanimous jury case after oral argument is a bit less of a slamdunk than I previously thought, but good chance the defendant will win.  The GLBT cases are tricky too though a case can be made that at least a 5-4 majority supporting the employees is possible though the rub will be the details.  I saw some negativity though.  Shall see.  Let's have clear strong federal protections regardless.

===

* The early practice was for justices to "ride circuit," there not a separate court of appeals.  The lower federal courts and especially the justices (including "jury charges" that at times were printed in newspapers)  brought the federal government to the people themselves.

Other than post offices, in the early years, people had little chance to interact with the federal government directly.  They often still don't. The jury charges repeatedly included some republican rhetoric mixed in such as the purpose of government or the like.  Some judges still do a little of that, jury service opening up a chance to serve as citizens in an official capacity. 

Saturday Update

Nats pitching has shut down the Cards so far (2-0) though the Cards starting pitching has been good. Yanks shut down the Astros in Game 1, which is not a good start for that Nats/Astros WS. OTOH, the Rays pitching did a decent job holding their offense too.

Mostly thru Season Three of Friends, which has the famous Rachel/Ross break-up though the Chandler/Janice one deserves a surprising honorable mention. In the first few seasons, Joey at times cooks (the silliness of Joey/Chandler making their own dinner was later a joke); here he actually reads (the amusing and touching Little Women/The Shining subplot). Those two adjectives is a charm: the show is fun but also touching. Not a great month but this show makes me smile. Commentary find: that football game? Played on a sound stage.

ETA: Jets ahead 21-6 (long FG to end half) but hang on 24-22. Idea: don't stop scoring. Also, the dollhouse episode was cute, but before the finale, the last few episodes were sorta stupid. It was like the season of break-ups though Monica/Pete was "eh." Like the whole relationship. Joey/Kate had an amusing reveal. Better story arc. Phoebe's was minor.

Liv & Maddie

I was not a great fan of this show (now on late nite rotation), it was more teen-y than shows like Suite Life on Deck, but it has charms for adults too. This video shows the writers have some skills too. The one where Maddie falls in love with a comfortable set of heels ("inner sparkle") is good too. Question: why was the dad not in Season Four? Why are the twins blonde and the parents and brothers not? Was there a "special episode" to explain?

On a total different subject, looks like the next execution will be at the end of the month. To update an earlier post, there was no change to the stays of three executions.

Happy Birthday Julia Sweeney

I saw her adopted daughter as a young girl while watching JS in person give her "Letting Go of God" monologue, which I re-listened to recently. Bought it cheap on Ebay with a nice booklet with a transcript. "God Said, Ha!" was very good and saw it again too. The middle one (focusing on her adopting Mulan) was an okay third (if in the middle). Sweeney has a cute voice and in her 1990s monologue looks rather cute too. Now, at sixty, she (this is fine really) looks total Grandma Sweeney or something. Her book on motherhood and such, with an account from her mother-in-law regarding a pre-Roe abortion (powerful) was good too.

Tuesday Round-Up

The Supreme Court heard oral arguments (Pamala Karlan received a lot of kudos) in the GLBT employment discrimination cases. Two minute rule (white light signal) going okay. Watched a replay of the premiere of the new Batwoman (who is a lesbian here); it was okay. Guess I'm not into these things much. Verlander on short rest didn't go well. He gave up three early and the Rays bullpenning (Cy Young occupant closed game) held them off from elimination again.

ETA: Cards scored 10 in top of the 1st vs. Braves. Won game 13-1. Advancing. Ditto the Nats, who finally won a playoff series, by tying off Kershaw (his relief appearance started well) and winning in extras. Guess I'm rooting for Nats/Rays. Sigh. (Rays blow it early. Next!)

It begins ... First Monday In October

As expected, the NY gun case was not declared moot. Various little things like the justification for granting submitting a petition under seal make me wish someone (maybe someone does) did a "deep dive" to clarify the nuances of these orders. That would include possible reasons for recusals. Transcripts for oral arguments (patents, insanity defense, unanimous juries) posted same day. Audio on Friday; video never. The "Red Mass" to me is kinda semi-official, so wary about it basically favoring one religion. Why Trump?

Falling For Vermont

This was on tonight in the Hallmark movie rotation and it's a cute film of the "woman loses her memory and drops into a small town with a widow and his kids" genre. It is a bit rough acting-wise and an author (does her books not have photos?) in 2019 should be recognized but nice. The woman lead was in the "flip house" romance film later on and I liked that too.

ETA: Nats #4 starter did well but the "starter as reliever" deal didn't -- seven run inning. smh.

Privacy Again

And Also: Giants young QB has potential but is still raw as seen the last few games. Vikings brought him back to earth and next it will be the Pats. Jets had to go with their third string again and it (again) didn't go well. Bills did eke out a win. NYC local "bonus coverage" gave us two exciting finishes of other games. Denver and Arizona got their first wins.

Various bad things occur, and books don't "take," but a few things provide a certain degree of security, and a few Supreme Court cases provide that for me. It's interesting and pleasant time wasters. So, I'm going to cover some standard ground yet again.  It will involve some privacy cases.

Griswold v. Connecticut is generally recognized as the Supreme Court case that first held that there was a constitutional right of privacy.  Many still reference such a right though the Supreme Court later focused more on a broad "liberty" that "presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct." As I have spoken of in the past, however, "privacy" does touch upon the sort of interests that many deem at issue here.  Not "secrecy" alone, but some realm of interests that are private to you personally, such as who you marry or some such. And, this doesn't mean absolute autonomy, but a higher degree of it.

[The "liberty" approach is appropriate since there is a mixture of things involved here and various cases do recognize specific rights such as marriage or choices over child-rearing, which need not fit into a wider "privacy" argument necessarily.  A general principle is that many things do not have one "point," and in the area of constitutional law, there is often overlapping principles. Doctrinal lines are at times artificially neat.]

Griswold is often criticized but the opinion cited various cases that protected some zone of "privacy" that was understood to have constitutional significance.  Fourth Amendment cases in particular spoke of some right to "privacy," particularly of the home.  And, particularly when dealing with states, the means to protect the rights here was the "liberty" component of due process in the Fourteenth Amendment.  Finally, as that opinion notes, the Fourth Amendment in certain opinions was said to have wide reach.  It ultimately protected private life as a whole.

One case referenced to show that interests of "privacy and repose" were respected was Breard v. Alexandria (1951), which upheld a law against door to door solicitation of magazines and such.  Two justices opposed it on First Amendment grounds, while a third (with one agreeing) saw it as a matter of interstate commerce.  The majority cited a major free speech advocate to show that an earlier case (by a divided Court) striking down a law barring door to door canvassing (there involving religious pamphlets, so also raising free exercise concerns) was at best a borderline case. In each case, the privacy of the home was flagged. A taste:

The issue brings into collision the rights of the hospitable housewife, peering on Monday morning around her chained door with those of Mr. Breard's courteous, well trained but possibly persistent solicitor, offering a bargain on culture and information through a joint subscription to the Saturday Evening Post, Pic and Today's Woman. Behind the housewife are many housewives and homeowners in the towns where Green River ordinances offer their aid.

In the earlier case, three liberal justices specifically recognized the "privacy and safety of the home" and the home is a man's castle principle. But, the majority in that case held that the home owner themselves can handle keeping unwanted people out, presumably by means of signs and so forth.  The case was decided during WWII and a reference to people sleeping because of late shifts underlines the privacy interests involved.  Years later, a law allowing people to choose to keep out certain types of mail (see also don't call lists) was uphold to protect the privacy of the home too.  This was after Griswold and its author joined the opinion.


These cases are somewhat different in that they recognize a state interest to protect privacy, but they are informative regarding the type of rights the people have.  The cases show that even at times when it might limit the rights of communication to some degree (solicitation of magazines etc.), there is a zone of privacy that can be protected.  If so, it is not too surprising that there is also a right of privacy that protects people from governmental power.  A person in the privacy of their own home has the power to keep out that solicitor of magazines as much as the government as they do private things.  At least, intrusion needs to be carefully justified.

The Bill of Rights lists various protections but "the protection of the Bill of Rights goes beyond the specific guarantees to protect from [governmental] abridgment those equally fundamental personal rights necessary to make the express guarantees fully meaningful."  It is somewhat unfortunate that is not how things were phrased instead of the whole "penumbra" concept that has received some tedious ridicule.  Again, back in the late 19th Century, the Supreme Court recognized the Fourth Amendment is not just there to provide specific procedural safeguards.  They are there to safeguard wider rights.  Ditto the right against self-incrimination and the right of public trials in criminal cases.

[See also, Justice Douglas' concurring opinion in Doe v. Bolton, the companion case to the main abortion case, which  references various early congressional investigation cases that recognizes an interest of privacy from congressional power there.  His Poe v. Ullman dissent also adds further argument on how privacy is a necessary aspect of liberty, including private associations such as families, religious groups and so forth.]   

The specific rights and language of the Constitution in general is of some importance.  I touched upon this in my comments on impeachment* in answer to those who reference some open-ended power to impeach as if specific grounds are not cited.  But, the language is only of limited reach in that respect, especially when we are talking about the open-ended nature of much of it (what is free speech?).  Justice Black dissented in the contraceptives case in part because of his long campaign against treating specific rights as a sort of "reasonableness" test that he thought was a threat to liberty (see Red Scare) and giving too much power to the courts.  He had a point, but especially with some of the open-ended language as well as the Ninth Amendment, only so much.

The specific text historically was understood to have a wide reach, including an understanding that there is a broad liberty over making decisions involving marriage, child-rearing and privacy at home.  This includes a greater right to use force in the home and in cases of self-defense of one's person even in public. What this entails respecting carrying weapons in public places is a more complex question, but it is factors into the realm of things.  And, the Supreme Court (term begins tomorrow) will decide such a matter in an upcoming Second Amendment case.

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* Here is a good summary of where we are now.  Things seem to be ratcheting up and getting pretty serious.  What it will amount to is still an open question, but it is damn important. 

Sacrifical Lambs Update (NL Actually a Good Battle)

Twins and Rays didn't just sneak into the playoffs -- they both have around one hundred wins. Both are down 0-2 with different crushing losses. Twins tried to sneak some former Uber driver newbie in as basically an "opener," but gave up seven in one inning (basically a sorta trend this year: this crazy offensive inning) early. Rays ran into the wall of one of the Cy Young boys and made a few mistakes to boot. 3-0. But, twice had bases loaded in the 9th. Tough at bats. Got one run on a field's choice out of it. Rather pathetic.