Burn Pits and More

One of the things available on C-SPAN was a press conference with Jon Stewart, my two senators (NY) and others promoting funding for health care of victims of burn pits. Jon Stewart has campaigned in support of 9/11 workers and this was a logical campaign for him and others who support that. One article notes:

More than 200,000 people who deployed to Iraq or Afghanistan believe they suffer permanent damage from exposure to burn pits, as the military’s notorious garbage-disposal fires are known.

The tricky problem is drawing lines here and that is not really my lane. We need good leadership and people in government that will make reasonable judgment calls here.  Proper funds and services for veterans, especially injured veterans, is clearly a prominent duty for government and society. President Biden, whose son was a veteran, is honestly concerned with protecting the troops.

By chance, the Supreme Court that same morning was debating a state immunity case involving a federal law providing an option for vets to sue state governments.  The person involved himself was a burn pit victim.  While Stolen Seat Guy, Alito, et. al. debated federalism with stupid hypos involving potholes, I think it useful to note what is involved.  

Also, that the text of the 11th Amendment is about interstate suits.  It might even be more limited (about diversity jurisdiction), but at the very least, it is not about suing your own state.  That is, if anything, some "10th Amendment" penumbra. Again, I think the text very well has "penumbras" to provide further limits.  I just want it to be applied consistently and correctly. 

===

President Biden also signed the Emmett Till Anti-Lynching Act.  I have already talked about this.  But, the general message is that -- after over 100 years -- we have a federal anti-lynching law.  And, on Twitter, I saw some people saying things like:

"The act amends the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act and prior hate crime laws to define lynching as any conspired bias-motivated offense which results in death or serious bodily injury."

I'm not a law professor or something, but I read the law.  My general impression was that it did two basic things.  It provided a symbolic statement that the federal government has a law against lynching.  

The very name of the act, some of the support/reaction to it, and President Biden's statement after signing it shows this is important.  Laws often are at least somewhat symbolic.  Many laws have a sort of redundant caliber beyond that.  And, I don't begrudge this AT ALL though maybe a resolution of some sort could have functioned the same way.

The other thing it did was extend the penalty to "lynching" (note the definition; the usual understanding of the term would be narrower) to thirty years.  I am not really a big fan of that.  I think we already have laws on the books with long enough sentences.  From what I can tell, the top penalty for the existing federal hate crime law is ten years.  Since a person is likely to be guilty of multiple crimes, that seems enough for me.  

Still, the symbolism of thing matters. I think you will find various people strongly supporting the law (including black people), who will be wary about extending criminal penalties.  But, again, if the person is guilty of multiple crimes as is, net, I'm unsure what this additional penalty will provide at the end of the day.  How much will actual prison time extend?

ANYWAY, noting the phrasing of what the law does, my question (which I posed more than once on Twitter) is this: what exactly does the law actually do?  Are you saying the existing federal hate crime laws did not cover that?  Law professors and defense attorneys can debate, but I still think the point of this thing is symbolic. It is to say there is now a "federal anti-lynching law," after one hundred years. 

And, that is fine!  I am concerned about various things.  It still is important to remember certain basic things are still true.  Details do matter.  This doesn't erase that symbols and basic messaging does as well.  Senator Rand Paul held this up because he carped about details.  As if there was any real chance that without this law the things he worried about couldn't have happened or some more reforms would have.  Go at that! Do more!

Meanwhile, let us learn a bit of history, and remember that the federal government has a role to play.  "Federalism" goes both ways there. 

===

Academy Awards Slap: For the second time in a row, a woman director won the Oscars.  A movie about deaf people (CODA) won for Best Picture.   Dune won a bunch of technicals and a movie about Tammy Faye won for Makeup.  And, cool actress Jessica Chastain won for her role there.  Part of her message was pro-LGBT and "everyone is loved." Nice dream.  

The big news, however, is when Chris Rock (when did he get to be 57?!) was smacked by Will Smith, after Rock made a stupid joke about Smith's wife (who has a hair condition, explaining her so-called "GI Jane" haircut).  Will Smith then, a bit on brand, won Best Actor for his role as a  bombastic dad.  

He got an ovation (when he won) and did apologize. Rock (shocker) said he won't sue/call him to be prosecuted.  Some did strongly criticize Will Smith for using violence like that.  I basically agree with the sentiment though accept the limits of human frailty here given the situation.  

And, it is somewhat trivial, but what is Chris Rock doing introducing Best Documentary?  Seems a curious call.  Turns out -- the movie won -- he was in Summer of Soul, about the Harlem Cultural Festival.  Oh okay. Makes sense.

SCOTUS: Order List Day

The Order List reported that SCOTUS granted three cases that were among those discussed at the SCOTUS Relist Watch. They are not big "hot button" issues per se, but deal with important matters, including the ability of states to have animal welfare legislation. Michael Dorf and Sherry Colb probably will shrug and note such laws are dubiously symbolic.

Alito for the High Federalists (not Barrett this time) wrote another statement [last time it was religious liberty] aiming to find a good case to target delegation. This is one of the campaigns of the Federalists these days, with special concern here giving Alito's "white whale" approach to PPACA challenges.

Meanwhile, Thomas reportedly is back, if taking part in oral argument remotely. The 1/6 Committee is interested in questioning Ginni Thomas. Let's see how far that goes. And, here is a written statement of one of the Jackson witnesses (supporting). I read her in the past. Sends a "she's so reasonable" message.

Some Arts Thoughts (TV, Books, Film)

Friends: I have been watching Friends regularly (including episodes on DVD) for a few years now. I still find some episodes and parts of episodes enjoyable. Some episodes, for some reason, are not run on the Nick at Nite rotation. They appear to generally be on TBS, which I do not pay much attention to (during the day) and I'm not aware of episodes being skipped on CW/local (NYC) Channel 11.  NYPL now has Season 1 on DVD.

[I also watched the series some when it was on though stopped -- as I recall -- when they had a to me forced bit leading up to the Chandler/Monica engagement.  But, watching it again in full a few years ago brought up various new things.  Plus, the DVDs provide bits, including the endings of episodes that Nickelodeon usually cuts, not on the reruns.]

For instance, in the Fourth Season, the very good "Chandler in a Box" (Thanksgiving) and "Joey's Dirty Day" (which introduces Emily) are not shown for some reason. I was annoyed, therefore, the latter was corrupted on my library DVD copy and I could only watch a few minutes. The Fourth Season provides Jennifer Aniston in particular multiple times to show her comic chops. 

Book: I saw Can We Talk About Israel: A Guide for the Curious, Confused and Conflicted  in the White Plains Library.  It is written by Daniel Sokatch, CEO of the social liberally minded New Israel Fund. The book provides a history of Israel basically from the mid-19th Century (with an introduction referencing ancient times) until 2021.  The second half then covers various disputes, such as Israel Arabs, settlements, and so on.  

The liberal minded Jewish writer has a point of view which basically matches my own without the special Jewish connection.  Still, I think the book as a whole (clearly with a point of view) covers a lot of ground in a fairly neutral way.  And, it is a brisk read with useful asides and an appendix to clarify various terms.  It is a good way to get up to speed. 

[There was a lecture in history on C-SPAN this morning that talked about the 1930s.  It turns out to be from a class at Bob Jones University, but other than a couple vague references, you wouldn't know that was the audience. I also see that university -- infamous for once banning interracial dating --  is in South Carolina.  For some reason, I thought it was in another state.]

I would just note one thing that stands out for me. Settlements are a poison. Now, maybe like some poisons, we are somehow stuck with them. But, they are poison to the peace process.  Settlements expanded like locusts (or wildfire if you want) with hundreds of thousands on a chunk of the West Bank.  There were much fewer in Gaza and Sinai, allowing Israel to get out of each (in a fashion).  How can you have a "two state solution" with settlements dominating a majority of the land in the West Bank?  

Finishing, also one thing not really covered in depth (though it is sorta alluded to) is the controversy about how "Jewish" the  country should be.  That is, specifically, the power of religion in a state that is in theory still one that honors freedom of religion.  And, some conflicts between more secular Jews and those who support more strict rules. This probably warranted its own chapter in the "issue" section. 

A basic issue is marriage.  Check out this FAQ:

With very few exceptions, Israeli civil law does not permit marriages between Jews and non-Jews within the state of Israel. The Israeli government will recognize marriages performed between Israeli Jewish citizens and non-Jews that are performed outside of Israel. Israeli law does permit marriages in Israel between converts.

They do recognize marriages that occur outside of Israel.  It is sort of like New York before Obergefell  recognizing same sex marriages while not actually performing them. And, what about marriages in occupied territories involving people not actually Israeli citizens?  This might be the most blatant case, but there are other issues where the power of religious leaders and religious groups (such as exemptions from military service and extremists in settlements) are controversial.

Academy Awards: Today are the Academy Awards, but (only partially) because of COVID, I have not actually been in a movie theater since early 2020.  I have not seen these movies and only want to see a few (The Ricardos being one that I might like).  As I noted in the past, the Academy Awards used to be much bigger for me.  Now, it is not really for me. 

I saw some of the Tammy Faye movie on DVD.  I think Jessica Chastain did a pretty good job, but got bored with it.  Cyrano (the big nose guy one if this time by a small guy) also looks interesting.  One best film nominee, Drive My Car (first time I heard of it), also sounds intriguing.  But, again, don't know or really care about these films. 

[Jessica Chastain and Drive My Car (for foreign film) both won.]

Perfect Pie: I was searching names and an early film of Rachel McAdams (The Notebook etc.), which also has another favorite of mine, Alison Pill also in a small role, popped up.  The two play the adult two women as teenagers.  This clip, which doesn't easily come up when I tried to attach it to this post via the video search option, is pretty good.  

A comment explaining the clip notes the two adult actors also played Susan in the television versions of the Robert B. Parker novels.  I actually watched some episodes of the series (if not the t.v. movies) and read many of the books (the character continued by others after the author's death).  

The books, and the author wrote this once in an article, was more "macho" than the series.  That isn't too surprising.  It did a better job than the V.I. movie, with Kathleen Turner simply not appropriate (if doing okay) for the role.

Ginni Thomas and Why Thomas Should Resign

A lot has happened this week respecting the Supreme Court and the matters not directly involving their oral arguments and decisions this week warrant separate entries. Thomas didn't show up for oral argument so his illness basically fits into the former. Nonetheless, that too has wider implications. 

[This is an ongoing issue like various things.  I expanded this entry twice already, first as an independent entry, a bit more today.  I realize nearly no one reads these things, but as a whole entries are not merely open Wikipedia entries.  I do tweak them a bit, but extensive change probably warrant a comment for form's sake at least.]

I had an extended discussion about the latest Ginni Thomas craziness (a word that is among those that fittingly explains the reactions).  There already has been extended discussion about her long term public activities and very conservative views.  She, for instance, was mixed up with a woman chosen to be a clerk for a hot button conservative judge (a major controversial Bush43 pick), a clerk who once noted "I hate black people."

This includes a long article and various other coverage.  She was not surprisingly rabidly pro-Trump.  Before Trump won the nomination, she was signed on to be Cruz delegate in 2016. This is but an example of her long involving in partisan and ideological disputes, including in flashy ways.  

“Biden crime family & ballot fraud co-conspirators (elected officials, bureaucrats, social media censorship mongers, fake stream media reporters, etc) are being arrested & detained for ballot fraud right now & over coming days, & will be living in barges off GITMO to face military tribunals for sedition.”

All the material coming out -- it's still coming -- is a bit overwhelming. I won't try here, but it would be useful if people would provide easy to understand bullet point summaries.  And, there is more! Text messages from Ginni Thomas to the Trump chief of staff not only showed various fantasies (such as Biden people going to GITMO, which she hoped was true) but blatant evidence of ongoing conspiracy (at least in intent) to overturn the election.

The disclosure that Virginia Thomas, the wife of Justice Clarence Thomas, had sent a barrage of text messages to the Trump White House urging efforts to overturn the 2020 election brought into sharp focus the conflict of interest her political activism has created — and the lack of a clear-cut remedy.

This is from Adam Liptak, the long term NYT Supreme Court analyst, respected for his general reasonableness.  This sort of thing on some level is tragically "clickbait" that will just make people more angry and convinced the system is corrupt and nothing will be done.  

As with multiple Trump things -- from before the 2016 elections on -- there is a certain "wait, this is totally fucked up" quality to it.  Especially once we are reminded here that Clarence Thomas did not recuse himself from challenges arising from election (and its investigation), even though his vote basically doesn't matter.  

And, as I noted in the original discussion (removed for this) ...

Steve Vladeck reminds us on Twitter that there is actually a federal law that applies to justices too regarding recusing when there is clear conflict though without an enforcement mechanism other than self-policing and in the either impeachment or something. 

He tweeted: "Under 28 U.S.C. § 455, a #SCOTUS Justice is required to recuse from a case not just if they know that their spouse has “any … interest that could be substantially affected by the outcome,” but also if their impartiality “might reasonably be questioned."

Liptak's article notes the justices never quite granted even that rule was constitutional.  Roberts said they would (to quote Liptak's paraphrase) follow it "in their own way."  Ha ha.  Again, people want a "binding ethics code," but how will it bind Supreme Court justices?   The justices thing anything truly binding for Supreme Court justices is questionable.

Roberts in his end of the year report for the federal judiciary (2021) was aware that people were concerned.  The report however basically said "trust us," including (the first of three things cited in the report) for recusals. Trusting people however isn't quite our way.  There needs to be a bigger check than that.  Especially if justices are not even going to grant the confirmation of the limited recusal rule being applied to them.

As Liptak notes, the latest reveals (as if we didn't know enough, including her involvement in "Stop the Steal" rallies; this is not merely about having "views" about things) has led legal ethicists and now apparently some Democrats in Congress to say it is OBVIOUS Thomas can not take part in cases involving 1/6.  

There is a sort of closing the barn door after the cows' are gone feeling to that, but like "waterboarding is torture," firm statements of limits have some value.  There are various cases where spouses are involved in some fashion with matters brought before courts where line drawing is complex. But, Marty Ginsburg and other spouses made career choices to remove blatant conflicts.  Justice Clark resigned when his son was picked by LBJ.

Again, I don't know all the proper lines here. I think Prof. Segall is probably wrong that Kagan did not do enough to avoid conflicts in the PPACA Cases.  There was also a rule of necessity there that has been referenced from time to time.  Without her presence, the Supreme Court would have been split 4-4 (granting the same result).   

I was more wary of hunting buddy Scalia taking part in the Cheney dispute, especially since his vote didn't matter.  Why take part in a matter of some public controversy and cause problems?  He did recuse when he talked about the Pledge of Allegiance and that issue came up.  His vote also would not decide the case, but his absence very well made the oral argument more sedate.  Of the two, the first to me (though a paralegal teacher of mine who because a local judge thought the whole thing silly) had more of an appearance of impropriety.   

On some level, I figured that Thomas is so hardcore that his wife's activities wouldn't really change his vote.  A sort of "horrible person can't be libeled" philosophy, maybe, but seemed true.  Still, appearance of impropriety is a bit more complicated than that.  The two are spouses, "best friends" (to you a label that pops up in the texts), and Thomas repeatedly is involved in the conservative moment, including such things as marrying Rush Limbaugh.

As to his own involvement,  just what that entails seemed hard to gauge from the coverage, though hints (like Ginny Thomas noting to the governor of Florida that he contacted him somehow) do pop up.  

A recent NYT article that I linked above (3/26) notes she "regularly invokes her husband's name" such as noting to Gov. DeSantis, a likely leading 2024 presidential candidate now, that Justice Thomas had contacted him “on various things of late."  There was also one thing reported where she apologized to various conservatives that might be said to be a wider "Thomas family" (including former clerks) for being too divisive. 

Now, some of this is probably puffery, but I have seen discussions about how there is a strong connection between the two with Clarence Thomas often defending his wife.  Again, why wouldn't he, but given her activities, this starts to seem a bit worrisome.  And, it makes you wonder about the exact details after a while, especially with talk of communication with governors and so on. 

They surely isn't some total "Chinese wall" between them.  And, recusal at the very least includes close family connections.  Furthermore, I am not aware of any discussion that basically says that Clarence Thomas' views were somehow more moderate than his wife's political views.  He is smart enough not to blatantly promote them that way, but it is not somehow unfair (unlike in various cases) to basically assume he agrees with them.  

[And More: An earlier summary, including Thomas engaging with conservative groups and making hints about his views on conservative values -- which he does in various interviews too -- is cited here.]

Also, a controversy arose (rightly so) regarding him not disclosing money involving her activities.  This was something that happened a while back, that is, during the Obama Administration. 

I will say again that it is really hard to keep track of all of these things.  I find this true for a variety of things and we should keep that in mind when the average person cannot even name multiple justices, which at this point seems a bit crazy since so many are in the news, including (though I'm loathe to give them that honorific) were appointed in the last few years. 

The general rule I suggest is a good one and the right one for preserving the integrity and honor of the judicial office. And it can't be employed strategically by advocates if the rule is observed in the first place, such that the spouse has already desisted or the judge has already chosen not to continue in judicial office.     

One law professor has a long analysis on the recent dispute and basically comes to the judgment that someone in his position should resign.  There is a certain duty, if perhaps a matter of a Breyeresque balancing test, where spouses to public officials should not do certain things.  He sets forth this in a dignified way, but it is a strong bottom line. 

And, various lower court judges of a liberal persuasion might in some fashion violate the rule to some degree.  I use the qualifier advisedly. The Supreme Court stands out.  It is the "Supreme" Court.  Still, I'm sure issues can be cited.  If a judge has a spouse who is in political office, it can cause difficulties.  Not that this wasn't true in the past somehow (say brothers or something), but the rules are stricter these days. 

I do not think it happens on the Supreme Court level so blatantly as here though it helps that old fashioned views about women in public life results in much less conflict.  Still, Marty Ginsberg was careful, Jackson's husband is a doctor, and Sotomayor/Kagan are both not married.   Breyer's wife also was to my knowledge careful though one of his daughters (a minister) is somehow involved in liberal causes.  I don't know any on the conservative either who are anywhere close to Ginni Thomas.

No one should have to choose between their devotion to their spouse and their duty to the nation. But Justice Thomas has shown himself unwilling or unable to protect what remains of the court’s reputation from the appearance of extreme bias he and his wife have created. He would do the country a service by stepping down and making room for someone who won’t have that problem.

A member of the NYT editorial board "goes there," where only various members of the choir (or in regard to Roberts, sorta a half-serious comment he should retire for the good of the Court) have gone.  I thought Thomas unready to be a justice and his sexual harassment of Anita Hill just sealed the deal. Since then, I thought he was very wrong on various things, but realized he had a personable side (beloved by court personnel) and wasn't merely the devil incarnate.  

I didn't think his confirmation was as illegitimate on some level as the Trump trio.  Kavanaugh was likely involved in a sexual assault as a teenager and other at least boorish offensive behavior.  Thomas was a sexual harassment, but I would not label him a "rapist."  Small praise, but when I said he had some good questions from the bench, someone was pissed off at me.

Still, at some point, a line is crossed.  It has been crossed.  He knew of his wife's activities, but continued to take part in matters involving them.  This is blatantly a violation of his oath of office.  I think it is possible to have an independent judiciary where there are binding ethic rules. States and countries even manage to set up such courts where those in need of recusal can be replaced.  This was even done in a major Latin American abortion ruling. 

Our system has checks.  But, like with Trump's impeachment, there is only a limited will to bring them out.  Even talking about court expansion is put out there as a HORRIBLE thing even from the reform minded Fix the Court.  Checks are useless if they do not have some bite. Some line has to be drawn at some point.   This includes at least being willing to TALK about it.  This is why talking about court expansion is important.

Thomas crossed a line.  It remains to be seen if he actually recuses (people figure he won't; I 'm a bit unsure).  That would be a very limited sign of sanity.  There was a law recently passed that helps disclosure of federal judges' stocks.  Stricter sexual harassment rules for federal judges are being debated.  These things happen bit and bit.  Pressure can effect other things too.  It's all related somehow in not so clear ways.

But, I am going further here.  It is time for him to resign.  Yes, I realize that my voice in the wilderness or any chance of impeachment is minimal.  Any one voice is.  Things have to be spoken aloud all the same.  As the Supreme Court readies to in some fashion continue (see Texas) strip abortion rights, the fact that the body doing it is so corrupt should be bluntly stated.

Thomas' actions here are part of a wider problem with the Supreme Court itself.  Some limits must be put in place for the institution to warrant our respect.  Over our history, the Supreme Court and individual justices have shown varying degrees of self-restraint.  This restraint to many seems non-existent or at least somewhat vague.  But, an analysis of Breyer's tenure at his retirement announcement suggests there really was some concerns (less prevalent now with a 6-3 Court) even when justices had the votes.

This includes reactions from some "median" of the country, including maybe even a few noises from non-Democrats.  For instance, the top Republican on the Senate Judiciary Committee supports televising the Supreme Court, if not willing to put that much political capital into the attempt.  As with Trump, we also have a responsibility to call on people to not just go along, becoming enablers. Some just go "all-in," while some go along.  That is how Trump won and retained power. 

Those from the other end have to push.  We have some power to force restraint even among those with life tenure.  We can laugh, but that has been shown, including because they know without "purse" or "sword," at some point they will be harmed.  And, we are at the point where more than words are appropriate. Some degree of restraint will result.

"Some degree" is not satisfying of late.  Resign.  Investigate.  Impeach. 

 ===

[The below touches upon the Supreme Court, abortion rights, and Thomas, but is mostly an aside involving things I have engaged with in the past. Maybe, it should be left out from here, but sorta want to vent a bit.]

Eric Segall's Supreme Court Myths podcast with various legal minds is at fifty-five episodes.  I have listened/watched many of them, including the latest with the author of The Cult of the Constitution, a book I have reviewed and/or provided a "book summary" for another another website.

Prof. Segall is great in various and is a nice guy.  But, he is annoying and at times full of himself.  He at one point in the interview did a Cassandra routine involving his predictions in the PPACA Cases, including noting the disability community was mad at him.  He skips over that they DID overrule mandatory Medicaid expansion, harming lots of people.

He at one point (he regularly doesn't push his guests and they in return are polite, as was the one here) said he knew something about Thomas, but couldn't say what it was. Oh shut up.  He also suggested Nixon had views on abortion like a moderate Democrat these days.  That is a tad asinine; he wasn't an extremist, but his 1972 election campaign was still anti-abortion.

One other thing. Part of his "I'm so pure" routine is that he thinks both Heller (guns) and Roe (abortion) was wrongly decided.  The guest noted she is wary about the argument in Roe, thinking abortion is a 13A issue, or at least an equal protection issue. She was wary about overturning Heller.  In her book, she granted a right of self-defense.   

Prof. S. suggested that maybe he would grant that there is a right to choose an abortion on equal protection grounds, noting he tells his daughters that it is necessary for their equal place in society.  Yeah. That's why (part of it at least) it is a constitutional right!  If this turns on bad reasoning, based on the state of the law at the time, he should clearly state that.  Anyway, Casey in part rested on equality anyway.  So, you know, pick a damn lane. 

This is only marginally about Thomas, but I wanted to get it out of my system.  Anyway, he's just an example of someone who needs to be smacked around a bit.  He's a bit too full of himself and I think it is in part (though he is mad when he is accused of it) a matter of privilege, being a privileged (repeatedly references his vacations) white male with tenure.

SCOTUS Watch: Orals, Hearings, and Opinions

Okay this week was busy ... the confirmation hearings are handled separately.  The orals were somewhat in the weeds and not too ideologically divisive, but did involve multiple international law issues as Jackson noted the Supreme Court didn't handle it that much.  Next week has one involving a quirky federalism issue.

Order List: The Order List was cited as "quiet" by Amy Howe. The one notable thing was a statement by Alito (with Thomas) involving an "intern at a legal-aid clinic run by a religious non-profit, applied for a job as a staff attorney at the clinic." The non-profit's views on sexuality and his church habits led him to be denied the job. 

Was this appropriate?   Basically, there seems to be an attempt by the religious conservatives on the Supreme Court to find the right facts (this is less troubling than if a florist or donuts shop did it) to provide an opt-out of anti-discrimination laws.  We are not talking about "ministers" here, a teacher at a religious school, or decisions involving who joins a church.  

It's a step beyond.  Maybe, it's tricky.  I might be open for states to have the discretion to give wider exceptions.  I am wary, however, of a national rule that requires the state to have one. I do not trust this Court to apply the right rule. In fact, I think Kagan and Breyer might have went too far in so-called "ministerial exception" type cases.  Or, whatever this is.

Shadow Docket Time:  On Wednesday, a stay request regarding congressional maps for Wisconsin was rejected without comment.

OTOH, a state map, a dispute decided by a state supreme court opinion with a Republican nominee going along with the liberals, was blocked by a per curiam, unsigned shadow docket ruling.  Who was involved? We don't know exactly.  We know that Sotomayor and Kagan dissented publicly. 

This "publicly dissented" business annoys me. The general assumption should be -- at Bloomberg SCOTUS journalist Kimberly Robinson noted this too -- should be silence means consent. It really amounts to a 7-2 opinion.  Now, logically, Breyer would likely have agreed with the two, but who knows?  There might be some reason he in effect wanted to stay silent, including with the nomination of his replacement pending.  

The result according to people I respect to give a good sense of these things is "bizarre" and blatantly wrong on procedure and substance.  The whole thing comes off as gratuitous and makes me more angry at these assholes.  I'm annoyed at Breyer for just silently going along as well.  

Thomas Ill:  Thomas had flu-like symptoms last week and could not go to the oral arguments (three days).  A press release was released that "Justice Thomas will participate in the consideration and discussion of any cases for which he is not present on the basis of the briefs, transcripts, and audio of the oral arguments."  

The press release (dated last Friday) says that he "expects to be released from the hospital in a day or two."  It is unclear that this happened or what exactly happened.  So, not surprisingly, some people wanted more.  

TMZ reports someone asked Breyer about it while he was walking somewhere and he thinks that Thomas is "fine."  Okay.  I actually thought, without knowing more, he is.  Is this mistaken? It might be.  But, making assumptions when 70 something people having medical issues that linger on is standard stuff is in my view not the best call.  They will be made.

And, then on Friday, there was a report that Thomas was released from the hospital.  Maybe, it is helpful to be a bit more transparent, especially when other news raises extreme possibilities. Even now, a request (says SCOTUSBlog, per Amy Howe, my regular source for news here) for more details was denied.  I wonder if we got anything off the record. 

(SCOTUSBlog noted: "Justice Clarence Thomas was discharged from the hospital on Friday morning, the court said."  As is often the case, this public message to reports was not posted on the website.  Then, Amy Howe wrote a more detailed -- though there aren't many -- analysis.)  

[Ginni Thomas material moved to a separate entry.]

Opinion Day: Two opinions on Thursday, only one justice dissented between them, but one is an issue of some importance.

Censure: Stolen Seat Guy had a short unanimous opinion that basically is a form of error correction.  CA5, the Southern circuit that gave us such charms as the SB8 litigation, gave a wide protection to free speech involving censure.  It is unclear how often this sort of thing actually comes up.  

Furthermore, as is regularly the case in the Roberts Court, the actual thing decided was limited. As SCOTUSBlog summarizes, the nine held: "a member of a community college board of trustees does not have a viable First Amendment claim arising from the board’s purely verbal censure of him."  

The opinion notes that a proper challenge was not made to the non-verbal restrictions such as a limited inability to run for board office positions or access to certain funds.  In some other case, the opinion said a stronger censure with teeth might be deemed unconstitutionally bitey.  Reasonable.

Death Chamber Religion: To quote SCOTUSBlog again: "Ramirez v. Collier, the court ruled 8-1 that a Texas death-row prisoner is likely to succeed in his claim that he has a right to have his pastor audibly pray and physically touch him while he is being executed."

[This is a longer business with sixty pages of opinions. Both the majority and dissent each are about 22 pages. The concurrences around ten pages combined.  The headnotes are five pages.]

This was a case that addressed a general issue that arose repeatedly and after around a handful of shadow docket opinions (going various ways) on the topic, they finally took the case on an accelerated basis for full review. And, then -- including as executions continued (though a few were held up) -- took months to actually decide it.  One wonders why.

Roberts wrote the opinion. Sotomayor wrote a short concurrence to talk about the right of prisoners to bring claims (a major issue for the dissent).  Thomas leads with the details of the crime and the idea Ramirez was abusing the system.  But, the general question here is not unique to him. There are many prisoners with serious religious concerns and line drawing will arise.  A case to provide clarity is a basic role for SCOTUS.

Kavanaugh (partisan lying rape-y guy who likes beer) wrote a bit longer concurrence to talk about how complicated the issue is, including (Jackson's assurances aside) that "policy" decisions were made by the Court here.  And, yes, the issue is complicated, and the prisons should have some discretion.  The presence of ministers and vocal prayer seems generally okay.  The touching part to me was more iffy.    

[A bit of inside baseball. Kavanaugh is the only one without a signed opinion.  There is a reasonable chance he wrote at least one of the per curiams.]

The issue here is largely statutory since there is a federal law protecting rights of prisoners and spelling out the rules of prisoners bringing challenges.  There are also constitutional concerns overhanging it all, including equal protection of all religions and religious liberty.  Religious liberty involves some action, that is part of "exercise," and dealing with that in the modern administrative state is a tricky issue.  

There are many cases where claims to me seem inappropriate, including when it wrongly clashes with discrimination laws in public accommodations.  I also am wary about evenhandness. We need more than an assurance something is "traditional forms of religious exercise" to cite the opinion today. The weighing here is also detail specific. An evenhanded application can be tricky.   As to that, I'm still not completely sure the rule against touching while someone is being executed is unreasonable.  

Still, this all seems fairly reasonable, and the opinion leaves some ground for states to balance things out and use different rules.  Thomas does not seem to be against the basic substantive balancing.  His opinion is more regarding abusing the challenge process.  I am a bit surprised neither Alito or Barrett, for different reasons, did not concur separately.  The time taken might be a matter of negotiation between the eight.  

More Shadows: To quote Jimmy Hoover of Law360 (tweet), after the two opinions dropped there was a miscellaneous order.  His summary: "Supreme Court temporarily blocks New Jersey from withdrawing from the 60-year-old Waterfront Commission Compact with New York, which polices the shipping port shared by the states."   

Steve "Mr. Shadow Docket" Vladeck notes this action in the original jurisdiction docket is "remarkably rare," if not perhaps "especially controversy."  The matter is of local importance.  If it is notable, and it surely seems to be, New York deserves a damn explanation.  

I saw someone said that they should explain themselves whenever they make a ruling. That is simply too extreme. They make lots of run of the mill rulings, including not taking thousands of cases. But, they only single out a few miscellaneous orders.  They can explain themselves here.  

Conference Day: The justices (and whatever some should be called) met for their fairly usual Friday conference today. Order List on Monday.  They also announced (as they now regularly do some time on Friday regarding the upcoming week)  will be one or more opinions next Thursday.  

Shadow Docket: Biden Wins! As basically expected, since at least up to a point they are wary about being insane when it comes to vaccines, the Supreme Court 6-3 granted President Biden's request to overturn a lower court hold up regarding making vaccination decisions as commander in chief.   To wit:

The district court’s January 3, 2022 order, insofar as it precludes the Navy from considering respondents’ vaccination status in making deployment, assignment, and other operational decisions, is stayed pending disposition of the appeal in the United States Court of Appeals for the Fifth Circuit and disposition of the petition for a writ of certiorari, if such writ is timely sought.

Kavanaugh provides the sole explanation about a page and a half long which (reasonably) references the usual regard giving to military discretion and all that.  There is little reason why the rest of the Court could not basically say the same thing, more or less.  

[Kavanaugh didn't provide some absolute rule though did speak of "extreme" respect for military decision making.  Note the Biden Administration didn't say vaccine exemptions didn't apply to the military.  They made a more limited argument. Plus, we should be wary of some absolute rule.  The military can make mistakes.  But, a high test is valid.]

As Ian Millhiser noted, the Supreme Court should have clearly sent a message here.  The shadow docket, however, sends vague ones, especially when (like here or in the NY/NJ case) they provide absolutely no explanation.  This will help invite the usual suspects to continue to cause problems, if doing so a bit more carefully.  A good case can be made that a line was crossed here that warranted something more. 

Thomas without opinion dissents. Alito (in part comparing this to the case just decided not involving Navy operations as compared to a limited context involving executions, that would not actually stop an execution) with Gorsuch dissent.  Thomas dissented in that case, so that might be one reason why he doesn't go along.  Amy Howe in her summary notes that even Alito hedged somewhat on the reach of his argument. 

And, yes, I'm going to say 6-3, even if we only know on the record the opinion of four of them. 

Ketanji Brown Jackson Confirmation Hearings

I was going to originally put this within a discussion of the Supreme Court, but there is so much going on there, it deserves a separate entry. And, given my interests, probably I can write a lot about them. I already wrote one.

For instance, I think the Republicans (at certain times) touched upon things worthy of comment. They just did it in such a back-assward, biased way that it is hard to take seriously. Still, they are serious issues, and as Amy Howe notes in one of the summary podcasts at SCOTUSBlog as a general statement, it's useful they are brought up. 

These sorts of things are theater with some kabuki. My basic sentiment there in part is "yeah, so what?"  Hearings basically became well used in the age of television.  We had some famous hearings (think Joe McCarthy or against comic books and organized crime) in the 1950s. Confirmation hearings of justices became big things in the 1980s though were present in various ways with some flash (think Fortas) before then.  

These things are not intended to be neutral fact-finding enterprises. A lot of that sort of thing happens behind the scenes. The nominees submit in depth questionnaires and documentation. Senators (this too is fairly recent) meet them in their offices.  The public hearings are often used for talking points and to engage with nominees about the senators' hobbyhorses. And, yes, there is some grandstanding and bullshit.  That too is part of the deal. 

The Republicans were, in various degrees, assholes.  Hawley both rounds basically was quite sure she was soft on child porn since allegedly, among her many cases, she had soft sentencing rules in a few situations.  Other Republicans covered this but not as dog with a bone.  And, various people, including conservative ones, refuted it as unfair and bullshit. 

Cruz was his usual troll self and Tom "the Narc" Cotton wasn't much better, but did so with a bit less sleaze.  The others were varying degree asshole, including Graham, who in his second round really went off about how unfair Democrats were unfair to Kavanaugh.  John Kennedy did his Mr. Haney (Green Acres) routine on unenumerated rights, which clearly was code for certain types of liberal privacy rights.   

These issues should be debated.  Even the question about where "life begins," which many saw as asinine. But, legally, that will be an issue in various instances.  How it was done left a lot to be desired.  Sen. Blackburn cited in passing some comment Jackson made about people having biases as if it was some horrible claim when it is totally honest. 

The Democrats were varying degree useful though Ossoff was curiously limited in his questioning and Booker spent much of his time like a happy puppy about how exciting it was for her to get to SCOTUS.  America is great!!!!!   Whitehouse basically focused on his dark money jeremiad.  Some argued Dems just left her swing in the wind and thought that wrong. The "Dems are just losers" line is tired and helps the other side.

Her criminal justice work was praised a lot.  We didn't get too much really about her overall approach (seems more pragmatic, case specific) and views on various things (like Ossoff had a brief free exercise question) we will basically see first when she is a justice.  She had a lot of boilerplate about staying in lane, limiting the reach of international law (as a case was being heard at that time by SCOTUS), and saying she won't make policy.

I do wish the Democrats covered somewhat more ground on certain issues, these hearings providing a chance to set forth a general view of the law. So, when Republicans broad up trans issues and latched on her inability to cleanly define "woman," Democrats could respond to some degree.  Kennedy made trans issues into some substantive due process issue.  It really is an equal protection issue.  

All the same, like during the Bork/Kennedy hearings, including as cited by then Sen. Biden, SDP and 9A issues do matter. It is not really "non-textual" and either way, people (including "parental rights!" conservatives) accept they exist.  While some people was paying attention, it might have helped to have one or two senators spend more time on that. 

====

I appreciate those who do not like this sort of thing.  It could be done better.  I think the questioning should be split between senators (it is a political/partisan ceremony) and an assigned interrogator.  There is some grandstanding.  But, that gives us a sense of who these people are.  And, we do get some sense of the nominee.  The public does.  That is important. 

One law professor wanted to hear about her judicial philosophy.  His summary left a bit to be desired, noting Roberts relies on doctrine.  Without more that is laughable.  It only reaffirms the argument of people like Sen. Coons that labels can mislead.  

I think the question is at least somewhat fair though probably as a district court judge she did not really develop as much of an in depth theory as a long term appellate judge might have.  The chart put out there about all of her "boxes" (public school, district/appellate judge, sentencing commission and so on) aside, she has barely been an appellate judge.  She wrote her first opinion there not that long ago.  She did note:

"I will say that I come to this position, to this moment as a judge who comes from practice -- that I was a trial judge and my methodology has developed in this context. I don't know how many other justices other than Justice Sotomayor have that same background."

This suggests to me a type of pragmatic vision based on the facts.  Other than that, she dealt with the usual platitudes about being neutral to parties though seems to have in whatever way determined some originalist sounding talk would sell well.  

Since Republicans didn't latch on to it, I guess her opinions really do not show much of a special interpretation philosophy.  This was sorta used by Republicans against her, including in testimony from a former Kavanaugh clerk.  I question, however, really how much it matters.  Still, I think -- like Sotomayor's stronger than some probably expected voice on SCOTUS from the left -- we will have to wait some to get a full sense of her style. 

Along with her limiting the reach of international law (and the to me wrong comment that she couldn't think of a constitutional provision where it factors in -- the Supreme Court clearly says it does in the 8th Amendment context surely)  and other white lies, I don't find that appealing.  But, I know the confirmation dance.  

Thursday was witnesses, including a first step to show she is mainstream in her decision-making. Republicans had a bunch from central casting. An old lady against abortion.  A black woman for conservative religious liberty and against critical race theory ("Kant is anti-enlightenment").  A Southern Attorney General who (asked at least three times) wouldn't say Biden was "duly elected."  A Kavanaugh clerk to vaguely say her legal views are iffy. And, an anti-child porn activist to continue that smear.

Now, there is a break, and the Judiciary Committee will come back at the end of the month.  Votes will take place in April it seems.  We will see, as we handle other things, if anything else comes up of note here.

SCOTUS Watch: The Democrats "Didn't Even Try"

I have a separate general Supreme Court round-up that includes the Ketanji Brown-Jackson hearings. But, I have seen repeated claims that Democrats left her hanging in the wind versus Republican attacks. I watched the hearings. I think that is unfair. So, I guess, I have to check some more.

First, why do I think it unfair? I reason I think it is unfair to say that they did nothing (other than Booker, who is cited as an exception) or didn't really try is that they did various things.   Booker both times basically had long passionate statements of affirmation of how special she is and how fantastic it is she was nominated.  That's nice.  But, for those not impressed by her, hard to see how that really challenges the Republican framing. 

They repeatedly themselves and by questions helping her talk about herself framed her as a success story, a woman of faith, a mainstream jurist, and so on. They repeatedly refuted Republican talking points. They noted repeatedly a police organization supported her (one witness, in uniform, shows this). A retired 60s something Republican federal judge was one of the two (with her long time friend) who introduced her.  The first set of witnesses this morning answered the claim she is not mainstream.  

On a basic level, you are not going to get people that the Cruz types are appealing to to listen to you.  Democrats can basically only appeal to those who are listening.  They can show support for her, to show their own base that they support her.  They can frame things and respond to allow those who are basically on the margins can see it.  And, polls suggest people in general strongly support her.  Since people only know her really from what Democrats taught them, this seems pretty notable too.

Dahlia Lithwick, however, says she was "stranded."  After some introduction comments, we get this charge:

Jackson looked alone fending off the QAnon smear brigade for much of these hearings because she was alone, at least until Sen. Cory Booker took it upon himself in his last colloquy to offer up a powerful corrective to the hatred being leveled at her, and to remind us why love can be an equal and opposite reaction to fear.

That is a lie.  It's is a fucking smear on the Democrats. I watched the hearings.  She was not "alone" regarding the smear that she was soft on porn because of her sentencing.  That was repeatedly refuted. The fact the senators had a different style than Booker doesn't erase this.  Leahy stands out a bit here.  He comes off as a kindly grandpa and supported her. 

The citation of Booker -- who again spent most of his time praising her, not refuting the Republicans on the merits -- to me highlights the core concern here on some basic level.  The Democrats in some fashion were not emotional and/or passionate enough in support of Jackson.  That is the claim apparently.   Booker made us cry.  He's in her corner!

Chairman Dick Durbin’s inability to control some of the most shocking bullying and abuse from Cruz, Graham, Tom Cotton, and Hawley left observers speechless. At some point, you need to just start gaveling.

I'm not sure what you are supposed to here on some level.  They get to ask questions.  Durbin is supposed to "start gaveling" as if he slammed a gavel hard enough that they would stop?  Again, the claims made were refuted. So, the concern is that the Democrats didn't show enough passion in stopping them?  And, then, they get to say to their base that they were silenced.  

Damn if you do and all that.  Elie Mystal of The Nation, who likes to play the angry black man ("the Constitution is trash" etc.) wanted some Democrat to shout or rant some, so that the media would have something else to see.  I question how useful that would be, especially when these same critics basically think the media are moronic Republican enablers.  

They can frame it as bad too.  I guess Booker partially helps here since he really did put on a bit of a show.  It is not like various positive images of Jackson was not put out there too.  Some Democrat "ranting" anti-Republican things would not logically be put on Fox News.

10 Republicans signing a letter demanding confidential pre-sentencing reports so they could better assess whether a respected federal judge was someone who is an enabler of child pornography, it seems that Democrats opted to do little to counter even that lie.

Durbin answered (as did Leahy) that doing so was dangerous because it would release private information that could invade the privacy of victims. They didn't submit to it.  They just filed it away for further investigation.  

What exactly more was they supposed to do?  I'm just ... to quote Strict Scrutiny Podcast regarding the conservatives on SCOTUS, its like a vague "vibe" that the Democrats didn't do enough.  They (yet again) failed. Sure, Whitehouse today repeatedly got a Republican witness to refuse to say that Biden was "duly elected," etc., but what do Democrats ever do?

Chris Geidner also noted that the Republicans had a "broadside" against her and [f]or the most part, the Democrats let it happen."  As if there was some magical way to stop it?  Yes, there were "individual senators responded, carefully, to individual lines of attack," but ...

And yet, there was little from the Democratic side of the aisle that even attempted to paint a full picture of Ketanji Brown Jackson — as a judge, as a lawyer or as a person — to offset the caricature being drawn by Cruz, Hawley, Cotton and Republican Sen. Marsha Blackburn of Tennessee.

Even attempted?  I saw at least an attempt to show how she is an American success story, coming from public schools to a nomination to the highest Court.  Her family was introduced, including her parents and police/military service brother.  She was portrayed and allowed to express herself as a judicial minded person, calm, intelligent, and so on.  A woman of faith.  A mother of two daughters. 

Her time as a public defender and defending people in GITMO was brought out.  She was repeatedly given a chance to talk about the importance of being a criminal defender. How that is so important for a judge to see both sides.  Her time in law school was also covered. What was left out?

To spell out her sentencing approach (and again others showed it too was reasonable).  She was portrayed as a practical judge, not tied to any special ideological approach (Coons and Hirono particularly noted this).  

How is this refuted? Again, it sounds like there is a feeling the Democrats were too cerebral or something.  Booker is singled out, but again, again, it is not like others did not refute the specifics.  What did he do?  

“I just want America to know that when it comes to my family’s safety, when it comes to Newark, New Jersey or my state — God, I trust you.” He then took Jackson, the committee and America on a journey through Jackson’s family, talking with her about her parents, her grandparents and her children.

But, we already knew about her family.  What was special about Booker was his passionate, emotional "joy," something that is part of his nature as a senator.  I listened to him. I don't know what special "full picture" he offered that was not provided before.  We multiple paragraphs on Booker. Geidner, like Lithwick, is speaking about some vibe.

That’s it. Jackson treats all people like people, including criminal defendants, and that is enough to cause Tillis concern.

And, Democrats let Jackson express the importance of defending people, how both sides are important in a courtroom.  They ATTEMPTED to do this.  It is a fucking lie -- yes, I'm tired of this -- that they did not do so. Now, maybe, they didn't do it enough.  I'm open to this.  I think more could have been provided to flesh out the liberal constitutional vision (including on such things as religious liberty). But, that is a matter of degree.

[ETA: For instance, a few times the idea of Roe/Casey being precedent was reaffirmed, which is curious, since we all know the likely future.  It would have been best to provide a wider reaffirmation of the basic principles of privacy.  Yes, we know she is for it -- she helped defended clinics versus protestors -- but this is part of a wider effort.]  

The commentary spends more time fleshing out the basic Republican lack of empathy to many groups.  Democrats put forth a different vision.

Thursday’s presentation from a panel of the American Bar Association’s Standing Committee on the Federal Judiciary reinforced that, as the panelists detailed their findings of how she is seen by her peers.

So, to belabor the point, witnesses set up by Democrats helped to provide a full picture of the nominee. The thing that is claimed they did not "even attempt."  Then, we read that one of the Democrats on the committee noted that  “She listens so intently and carefully to everybody who comes into her courtroom.”  Again, getting a full sense of who she is as a judge.

Geidner, who I generally respect,  noted at one point that her story is out there, but someone has to be "listening" to see it.  Sure.  And, maybe the Democrats could have done better to help.  I don't know really how much in this divided partisan environment that is possible.  They surely attempted to do so.  And, they will continue to do so the next few weeks.  

===

I will add this bit.  A large part of this nominee is the history being made with the first black woman justice.  Democrats "attempted" to highlight this.  I noted before that Booker's joy is deserved.  We also have this:

Today I spoke with @nytimes about what this photo means to me. Full story here: https://t.co/p2vE8dAYmb

— Sarahbeth Maney (@sbmaneyphoto) March 24, 2022

The Republicans are seen as basically committing a sacrilege here. Prof. Leah Litman, for example, treated how disgusting she felt the whole thing is.  So, I will try to respect the feeling Democrats are not doing enough to pushback.  They have some time.  If there is a feeling that they aren't trying, the reality is they have to correct it somehow.

OTOH, I think everyone needs to be "listening."  Mueller did do things and was restrained by Barr and the limited nature of his power.  But, people continue to sneer at his efforts, like he didn't even try.  He did.  Serious efforts were made.  Not enough, but it was the Republican Justice Department!

You have to address the feelings of your supporters and put on enough of an effort to meet the demands of minds and hearts.  This is one reason why I am appalled -- even if it would fail -- that the Attorney General of Manhattan has decided to not carry out the prosecution of Trump.  It is why impeachment mattered, even if we knew he would not be convicted.  

Both sides have a responsibility here all the same.  Some vibe aside, the Democrats did try.  They didn't just ignore her needs.  If they should have done more, we all should be willing to listen.  But, an emotional, unjust reaction is still that.  

ETA: I didn't continue with a third example (see Balls and Strikes).  Still, even the author of that piece retweeted something by Ian Millhiser, a progressive critic of SCOTUS and the Senate itself, who said in his view that there was really no way to prep for Republican lies, which will be believed by those who want to believe them.  

On the "NYT never criticizes the Republicans" front, I saw this morning a piece about how Ted "Critical Race Theory! So Horrible!" Cruz sends his own daughter to a private institution with such views.  It is also sometimes hard to remember that Cruz is himself biracial (note that last name).  But, then again, we have the idea that certain Hispanics are really "white."

BTW, The End of the Police, held up as the sort of thing in the library or whatever of the school KBJ is on the board of or whatever, is a pretty good book. I talked about it on this blog, saying it made some good points though was a bit too one-sided.

Pura M. De Jesus-Coniglio and Other Stuff

Looking, Pura DeJesus-Coniglio's Twitter profile comes up on a Google search, cited as "Rev. Pura M. De Jesus-Coniglio, Esq. is a ministry leader, Chaplain, and an attorney at law. She has appeared in various radio & TV programs and is an" (cuts off).

The handout by someone collecting signatures for her to be on the Republican ballot (primary in June) to seek to challenge AOC in November (prime platform!) says she is a "lawyer / small business owner / community servant."  I see in 2009 she published a book entitled "THE BRONX: Exposing its True DNA & Breaking The Stigma," that is cited as 352 pages long.  Impressive, I guess. 

I never heard of her. Sadly, I could not sign the petition (the woman who asked me looked like an older black woman; I saw a middle aged white woman who seemed more familiar to my neighborhood outside the supermarket, but not sure if it was for the same candidate)  since I am not a registered Republican.  I am wary about too many people overwhelming ballots, but generally am open for people to be on ballots.   I asked the person and she cited around three or four people running.  

It's sad that I cannot help in this fashion to get someone on the ballot who rails against the Biden Administration "using the working class and middle class families in this country as their indentured servants."  That seems wrong.  I'm all for infrastructure, though think AOC and the Democrats supported doing more to pay for repair than Republicans. 

I passed by the person yesterday, it being in the 60s or so and nice weather to go out and read somewhere.  A few years ago, I also was asked to sign a petition against revising the New York state constitution, some people worried it would be anti-worker or something.  I actually supported at least meeting to see what needed revision after all this time (the people are get to say "yea" or "nea" to that every twenty years or something), but it failed.

One thing I noted was that this sewer grate still was open.  It looks like a rim or something came off for some reason.  It is near a bus stop, if not someplace as likely to be step in or something.  There is a parking strip nearby.  All the same, I don't think it is supposed to be open, it invites people to toss in trash, and there is a slight possibility of injury.   

By coincidence, it is not too far from the proposed street naming that I referenced earlier this month. I passed a couple photos along via email to my city councilwoman, whose office thanked me by email shortly after it was sent late Friday afternoon.  I also asked AOC to looked into something for me personally and will see if anything comes from it.

I think I'll vote for her either way.  (I'm being sarcastic here, being a big supporter, if by some rare chance anyone is confused here.)  

I talked about Petticoat Junction last week and the first episode on early this morning was a good one.  It was a fun mixture of humor and sentiment. 

Betty Jo 's choice of a "perfect house" for her and Steve that turns out to be a tad run down.  But, you can see and appreciate her dreams.  There are some amusing character driven humorous bits.  And, it ends with them singing a love song, music more of a thing in later seasons.  

===

The first televised Mets Spring Training game is on tomorrow.   This is apt since it is also the first day of spring.  

Today is St. Joseph's Day,  Joseph being the patron saint of Italians. There was an op-ed against The Godfather, argued to have (along with other mafia movies) to have put Italians in a bad light.  I question this.  I'm inclined to think -- like the gangsters cited here -- that it also had a net positive view of the Mafia.  OTOH, that to me is not a good thing.  

People get all poetic, but bottom line, the Mafia are often people rooted for in these movies.  It might be fairly clear (to some) that they are bad actors. Even so, they are "characters," and we aren't watching this merely to see the battle of good over evil or something.  It glorifies mobsters.  

Wikipedia says Kiss Me, Guido was somehow filmed in my area, but the only thing referenced is the Italian area of the Bronx known as Belmont.  One church looks familiar, but otherwise, don't see my neighborhood. The movie itself was an amusing clash of cultures (gay and Italian) with some decent acting and writing. 

Founding Myth (Pounded a Bit Too Hard)

Andrew Seidel (Freedom From Religion Foundation) wrote the book Founding Myth: Why Christian Nationalism Is UN-AMERICAN. I agree with the basic idea, but damn, he is heavy-handed about it.

It is easiest to say that "Christian Nationalism" is un-American. This book was written during the Trump Administration. On various issues, there was a sort of "repeat, but worst" (darn sequels) flavor there. Kingdom Coming by Michelle Goldberg, for instance, wrote about the issue back in the Bush43 days.  Things have just gotten worse in various ways.

The book provides a powerful argument about the importance of religious freedom and the problems of even non-conservative religious beliefs of various types.  I too question the basic logic of Jesus dying for our sins.  American values are based on reason and human self-government.  His discussion of the (brief) references to God in the Declaration of Independence alone is well recommended. 

The quick video on his website shows this, the author isn't just concerned about Christian nationalism and/or conservative Christians. He is an atheist and darn if Christianity and religion overall is a problem.  We do not really get a sense of what "religion" means until fairly late, and then it is a matter of divine authority.  Anyone who is half-way decent is basically deemed to be not really Christians.  

[What business it is for him to determine who is "Christian"?  He cites at one point one book that he found a good summary of the Bible's view on slavery.  I doubt something like that is not subject to debate around the margins, at the very least.  But, being "Christian" is quite different.]

Which is part of why at various points this book upset me.  I don't know (I sorta do) why time old things like poorly reasoned things (well, a book that emphasizes the supremacy of reason and did invite early on to disagree with him, does suggest a higher standard is necessary) still stress me out as much as they do.  I should be used to it by now.  I guess one is human.  

The book -- the Ten Commandments particularly are covered to show how they are anti-American -- basically uses a heavy-handed biblical originalism.  And, even there, we get the bad stuff slammed over our heads.  The Bible, for instance, has a lot of content that is quite liberal minded. The prophets rail against injustice and hypocritical religious theater.  Wisdom books talk about various subjects. And so on.

But, as with the usual focus on a few Founders (the usual suspects with others tossed in now and then), we get hit over the head with the bad stuff. Stuff that repeatedly is not (contra to the argument) "religious" as much as social reality that a religious book grants.  It is akin to those who damn the Constitution, original, since it factored in slavery.  

Admittedly, as a more comprehensive work, the Bible can not avoid the bad stuff as much.  Obviously, the Bible (he lower cases "god," but the Bible is the title of a book) has bad stuff in it.  Ancient philosophers glorified slavery too.  The idea that we need to accept some sort of set in stone biblical literalism, however, is not compelled by "Christianity" itself. 

The Ten Commandments has various provisions that are not American, including multiple ones regarding a sectarian god.  But, even the one about honoring parents is made out to simply be a way for religion to dominate, parents code here for (male) religious leaders.  The word "mother" is, however, in the darn commandment.  

The book resists an attempt to strip the surrounding text of commandments, but again, we need not take for granted the strict construction of conservative Christians.  It is surely appropriate to call them on it.  But, religion can include a "living" interpretation approach.  

So, the Sabbath and "covet" commandments grants that there are slaves.  The commandments do not command slavery.  An unreasoned interpretation, one the author argues is MORE CORRECT (he says the pro-slavery South had a better biblical argument), argues the Bible means slavery is good.  This is akin to using it to challenge modern day astronomy or history.  The rules that are commanded -- day off and coveting -- are applied across the board.  Even to requiring rest for slaves.  

There are so many examples that I'm not covering them all by half.  The "coveting" chapter doesn't really get around to saying that the commandment is narrow -- it focuses on "your neighbor" -- and what does "covet" mean, really?  There are different degrees, including one that means desiring in an unhealthy way.  Finally, is it really a good idea to covet your neighbor's wife?  I know coveting is capitalist and all, but is that?

We never are told, e.g., Moses very well might not have existed.  The book harms the reader by providing a simplistic view of the subject, which might please some readers, but it's a sugar rush, not a nutritious meal.  

A fuller account, still open to refutation (faith vs. reason etc.)  would recognize the book involves a range of myths, metaphors, exaggerations for effect, and parables. Not all fact.  Such things (especially the violence) can be challenged, but we can realize that a weak people recently conquered by a major empire talking tough might be compensating a bit. 

And, that is what this book seems to be doing.  I have not used this space to go into his argument too much in part because the basics are pretty familiar.  The book does go a step further from merely talking about Christian conservatives, so liberal Christians might feel wary.  That's okay.  

The problem is that he goes a step further than that and makes a selective case at that.  He notes that slavery did not arise from slavery, but  then puts much more blame on religion for slavery and the passions that led to the Civil War.  And so on.  The true story here is not quite so one-sided.  "Religion" is not just bad conservative Christianity or somewhat less bad (but not good) forms that are caricatured here too much.

I wish someone edited this book, toning it down something like a few levels at least.  The core has some pretty good points to make. Like Jefferson's gospels, I would take a good amount of stuff out.  There would be more room, but a few things could have been added anyhow.

BTW, he ends on an optimistic note that the conservative Christians are on their last legs.  This was before 2020/1 and so on.  That too might be pounding things a bit too hard/optimistically. 

===

The book is well sourced, which shows you that you can provide a lot of end notes, and still not get the whole story out.  

For instance, at one point, he says Jesus was the first person in the Bible to talk about hell.  A fuller account would have explained how the concept grew in the centuries before his career. 

There are a lot of interesting quotes and facts.  One reference to the importance of the right to remain silent cited U.S. v. Balsys, which turns out to be an interesting case not applying the right to incrimination that might arise out of the country.  

Involving a former Nazi, the fact the oral argument was on Hitler's birthday (4/20) is just amusing to me. 

SCOTUS Watch: Calm Before Storm?

There will be confirmation hearings and oral arguments next week, but the recent trend continues. There is never truly a quiet moment for that long in regards to the Supreme Court.

C-SPAN asked a consulting firm to guage the public's opinion on the Supreme Court. I'm unsure how accurate it is when over 40% say they have heard at least one oral argument while they are greatly unaware of nearly any actual Supreme Court opinion. I get the idea some at least heard in a vague way some of those things, even if they don't know names.

Anyway, as a whole, they want diversity and like audio/video. As one article noted:

While continuing a practice that has been in place for nearly two years is still an unknown, the majority of Americans are asking the court for even more access. A new C-SPAN/Pierrepont poll found the majority — 65% — of likely voters surveyed want live TV coverage at the high court. Further 70% of voters surveyed say allowing cameras in the courtroom would build public trust.

The problem appears to be the older members of the Court (minus Breyer, perhaps):

“Eventually, TV will be there because, as we know, generations will grow up and they just won't understand why it isn't there, alright,” Justice Stephen Breyer said in 2019. “But the judges who are there now are not in that generation, and so it will be a while.”

Meanwhile, we have more news out about Ginni Thomas though this is sort of like the stuff about Trump or whatever -- the basics aren't new, it riles up passion and clicks, but if nothing happens, you know, so fucking what?   OTOH, that's how stuff works -- it builds up and some things do not truly go away, even if the changing news cycle pushes it away somewhat.   

And, this does not seem to be going away -- there has been multiple articles, one or more quite long, about Ginni Thomas' political activities, including now that she was at a "Stop the Steal" Rally, but claims she left early because it was cold.  So, she wasn't there on 1/6 when they marched to the Capitol?  

Meanwhile, though Sotomayor recused in one of the faithless electors cases since she is a friend of one of the litigants, Thomas did not recuse from 1/6 related cases.   The appropriate ethical line here is clouded in the coverage with a lot of detail about Ginni Thomas' long conservative partisan activities.  That sort of thing is interesting and stuff, but she is allowed to do that (if worthy of criticism).  

Still, mixed in is some Clarence Thomas involvement (she, e.g., references his contacting the Florida governor, who now is a possible leading presidential option in 2024).  Thomas has repeatedly defended his wife, of course, and it does not appear like they live separate lives or anything.  And, with Thomas clerks serving an important role, some of whom later became federal judges,  there is a lot to unpack.

Thomas meanwhile is concerned about "cancel culture" and the lack of civil debate.  While his wife is involved with racist groups and efforts to overturn elections.  Guy is trying to gaslight us for sure.  People are right to be upset, thinking he and Kavanaugh et. al. are getting away with it.  

A House hearing addressing sexual harassment and abuse in the federal courts only emphasizes this fact. We have two sex offenders on the Supreme Court.  I was around when both were confirmed.  Thomas was problematic to me as unready for the Supreme Court.  He did not seem to have the experience worthy of the job.  The harassment thing was a "seal the deal" moment for me.  He has a lot more to answer for now.

Thomas is reportedly very popular, including making efforts to get to know the support staff.  He does have a social side though his hatred is still in there as well.  Not likely a "moving on" sort of person regarding certain forces out there.  I, however, never read about him having sexual harassment issues once on the Supreme Court. 

Again, with all this talk of an ethical code for the Supreme Court, how will that work?  If we actually had a "binding" ethics code, how would it bind?  I wonder about "natural" rights and how they are supposed to be enforced.  We can have human institutions to do so, even if God or nature doesn't step in.  How would it work here?  Reporting to Congress?  Self-restraint?  

===

Okay, so what is happening regarding actual cases and stuff?

The April, argument schedule has been posted. There are a few notables.  Friday (aka St. JP Day, the day for Irish/Italian mutts between days for each half of that mix) was a conference day.   

There will be an Order List on Monday.   Order fans should be happy since there has been a lag since March 7th with no orders, even some trivial one. 

An order was dropped Friday (3/18) as well.   The solicitor general was granted oral argument time in two cases, set for argument for the last week of March, so figure can could have tossed it into the Monday Order List.  I'm not really sure if the timing and placement (sometimes something involving a single justice is just kept on the docket page of the case, not put on the separate Order List page)  has a totally logical aspect. 

An opinion day was also set up for next Thursday. 

Odds and Ends

The bar on entry to Canada for the unvaccinated will apply to playing the Toronto Blue Jays. And, the player won't get paid either. People managed, if they were open about it and took certain precautions, to be unvaxxed in the NFL. This might be interesting. ETA: Note that such rules also apply in New York City. Let's see for how long.

Mayor Eric Adams had some ups/downs, including various times when he came off as a clown for mouthing off. But, though I still don't think it was wrong to note his public violations of being a vegan, he did some good things promoting good nutrition. A sign of the complexity he brings. It also shows the opening for nudges in the right direction.

Good interview on Strict Scrutiny Podcast on the limits of textualism, including how Gorsuch misquoted the guest's own writings. She is right to call out the fake restraint. The "we are restrained unlike those liberals [at times, et. al.] who make shit up" is bullshit.

Petticoat Junction

The show is on more than one channel, but Petticoat Junction is on early Saturday morning on MeTV (after Barnaby Jones, a DVR often getting the end of that show, which is usually some silly light moment, after the crime is handled). I like some of the episodes, though the show is at times too silly. 

 

One issue is that there are three daughters and six actresses (3-2-1) involved. Betty Jo (the sport-y one) is the youngest and along with Uncle Joe (the actor is about the same age as the mom actress, but he's HER uncle and the girls great-uncle) stays the same.  I like the last (and longest lasting) blond the least; the longest brunette is the best though the first is okay (if somewhat more bland) too.  

About when the three daughters were steady, we had a new character, a crop dusting pilot.  He at first dates the oldest and all of them like him. But, eventually, the youngest (who later on married him in real life for around five years) turned out to be the one who he really fell for.  The big "true love kiss" moment -- in an episode on early Saturday morning -- takes place after a plane ride, the two just needing to fly through a bad storm. 

We then get a pretty realistic talk by the mom, concerned the two aren't really in love after one kiss taking place arising from a dramatic storm. This being a sitcom, both actually are in love.  The relationship did not come out of the blue, the two spending a lot of time together at this point, Betty Jo taking flying lessons and basically being his mechanic.  

(The middle daughter showed some affection for him, but did not have as extended of a relationship.  Steve and the oldest go out. Turns out it isn't really serious and she is in fact glad Betty Jo is the one, since it would allow her to focus more on her singing.)

Turns out Steve's attraction for her was shown in the episode before that, which ends with them kissing.  The episode is now on YouTube and it's amusing.  It also provides a good use of a  guest star from Green Acres. 

We have a sweet wedding proposal, of course, after a lot of hi-jinks where everyone but Betty Jo realizes his intentions. This was done right away.  So, you really have a three episode swing [with some foreshadowing, true] of them clearly liking each other, announcing it, and then a wedding proposal.  Pretty fast, since it could have provided a series long plot device.

The two marry and eventually have a daughter.  The daughter pops up when the Beverly Hillbillies come to town for a later Thanksgiving episode.  (Green Acres more directly overlap, taking place in the same general area.)  Mike Minor, who plays Steve, had a pretty long and successful career. 

One interesting bit in the episode (which I did see) when Steve first comes to town.  The three are bathing in the water tower, as seen in the beginning of each episode.  In the opening, it is unclear what they are wearing, since their petticoats (name drop) are hanging.  Then, they pop up and their shoulders are bare.  In other words, no bra straps.  

OTOH, it is dubious that they are just wearing one petticoat with nothing underneath.  Anyway, when Steve flies over, he sees them, but they are wearing bathing suits.  With straps.  You can see it around 3:30 in here.   It still causes him to crash.  The opening has the shoulders free, but the long shot has two sets of clothes (one for the dog, the dog being added in the second or third season as I recall, perhaps to G it a bit).  

The girls ultimately go as they are to see how he is after he crashes the plane.  It is unclear if they are always dressed like that in the water tower now and the tv tropes merely mentions this one actual case of seeing them inside the tower.  Please don't tell me viewers, especially certain male ones, did not think about such things in the 1960s.  

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I edited this entry and will end it this way.  

Betty Jo is the youngest and only one actress plays her the whole series.  At times, it looks like she has false eyelashes on.  I think so but then I think Jen Psaki does too.  Does seem like it. 

The oldest (blond) is played by three, though the last is seen the most.  She also (I'm not the only one who think so) is the least favorite in my book.  The middle (brunette) is played by two, the first one only for a little bit, and is portrayed as more bookish than the more sexy (but nice) replacement.  

I like the second brunette the best though the other two blonds (if often not around) have an interesting look.  The third blond seems -- as one person noted -- a bit too "mod" or modern; she was on My Three Sons as the girlfriend of one of the sons.  I think she fits more over in another sitcom.  

Mike Minor's Wikipedia page has a screenshot with her though to be clear she isn't the sister Steve married!  That would be Betty Jo, who is a nice character, to be clear, though Bobbie Jo is my favorite.  The first is fine too.