Mets: Robertson Gone ... Probably More

If the Mets were not inconsistent after the break, the week around the trading deadline (August 1st, Tuesday, at 6 P.M.) would be tempting.  We are talking about seven games of Nationals (a bad team if one that could be respectable with a bit more talent) and the Royals ("well, we aren't the As").  This is a 5-2 type schedule, especially after they squeaked out a 2-1 win based on the Nats pen blowing it in the first game.  

The schedule then becomes tougher though mixed with the Orioles, Braves, Rangers, and Angels (how much Ohtani dreaming will take place?) are the Cubs (bad but can win now and then) and Pirates (fell off a cliff after actually leading the division for a time).  So, being within spitting distance of .500 possibly would have been somewhat misleading. 

You could find a Mets writer or WFAN host opining they should basically stand pat.  They had little hope the Mets actually would make a run given the number of teams ahead of them who are hovering around the same record (over six games ahead of the Mets) but they figured the Mets wouldn't get much in return.  We are talking about a bunch of decent short-timers without going into the possibility of a big deal (one of the expensive aces), who people figure to have too much salary to dispose.  

I find this misguided.  What is the value of retaining these people so the Mets can win around half their games (which might be generous) and still miss the playoffs?  This expensive payroll was not set up so that the Mets could (if everything went right) manage to be the third wild card.  Prospects are always a crapshoot.  Get some for the likes of Canha and company, you will likely at least get something of some value.  

There is a level of depressing for this fan to watch a disappointing bunch over and over again.  It felt wrong to guarantee the GM and manager keeping their jobs (leave it open at least) for the season when things have gone wrong.  Where are the consequences?  I have seen some talk that part of the problem is an inability to adapt to new rules.  For whatever reason, a bunch of people are underperforming.  Just shrug and let them stay?

I am not impressed -- to the degree I am supposed to be as compared to it just being reported -- that such and such players are now doing well. Oh, Alonso is finally showing life?  Charming.  43M Verlander is pitching like an ace.  Okay.  I was born yesterday, so the first three months or so need not concern me.  And, Vogelbach is now having some success?  Who fucking cares?  This guy as the DH, repeatedly taking playing time from someone possibly with a future on this team, is aggravating.  

Plus, the baseball operations guy has yet to be hired. We have seen that sort of holding action for years now (first it was keeping a manager that was clearly a bad fit until ownership could be settled, now this).  But, it is not like the team is being totally retooled.  They are tooling around the edges to get parts for rentals.  It is a waste not to get something for these people and the baseball people there can't be total morons in so doing it. 

Well, the Mets bit the bullet, and David Robertson (who said he liked it here, which is nice and all, as is the fact he pitched like the closer they surely needed without Diaz) was traded on Thursday.  It was surprising to some people that he was traded to the Marlins (other teams need pitching too) for a pair of baby prospects.  A few reports that they are pretty good but who knows?  People figured Robertson was a leading trading chip and there were days left to the deadline.  Well, it was done.

We will see what else happens but the assumption will be that a few other people (like Ottavino, Raley, Canha) will be traded too.  I personally want Vogelbach gone, since again, why waste a key slot for this guy?  There are various players that can be given more playing time.  The biggest issue will be the bullpen, at least, once the heat of August comes.  

I think the Mets should think long-term here.  The Mets paid Max Scherzer big money to bring cred.  He has been disappointing in various ways though started well last season (then collapsed at the end when the team needed him though he wasn't the only one) and struggled this season. He had too many bad games.  His 9-4 record is misleading and it didn't help he was penalized for sticky stuff.  

But, net Verlander was no better, even if he looks better if you just skip over the first half of his season.  Many people thought the Verlander deal with correct, a sort of necessary move with deGrom leaving, and old or not, he just had a Cy Young year!  Looked a lot more human this season.  Who knows what next season will bring?  You hope it is more Verlander-like.  Would it shock if he was injured again or something?  He is over 40.

There is news now that Texas (deGrom turned out to be a bad bet) wants Scherzer.  It would be a matter of Scherzer agreeing to waive his no-trade clause.  Reports were he went to management after the Robertson deal, concerned about the team's status.  It's the Mets.  He must know how this goes down.  The history is far from opaque.  

Scherzer is inconsistent but will give you some gems. The other times you need a strong offense to balance him out.  There are multiple playoff teams that sometimes need to out slug to win.  The Mets in theory could have been such a team but player after player has underperformed.

I have seen people concerned about the Mets rotation if either one of the aces goes.  Why? It's one of the times when (can't help myself) start muttering and ranting a bit.  It helps to do this when no one is around or few people are "listening."  Anyways.  It is not like the team is just going to eat what now amounts to around 60M (two months plus next season) for each contract.  This season is a wash.  You got a few possible fill-ins (now that Q. is back and looking interesting) for two pitchers.  

Next season?  You have possible future starters in the system.  But, part of the stupidity of the concern for me is that again they are not just going to eat ALL that money.  I find that very unlikely.  Even a fraction should get you a mid-rotation sort of guy.  The assumption is that you can get something decent back.  Scherzer is not an ace now anyway.  

Verlander might have even more money coming to him if he meets the 2024 innings limits.  This to me seems a bit absurd if he has the potential to do it.  35M in 2025? Really?  And, all this money, well that makes finding okay pitching for 2024 doable in various ways.

Verlander might be but it's a question of figuring net you aren't losing much.  We already saw this season that he too is far from a gimme next season.  There is a chance that the net result of losing major pieces here is that 2024 will be somewhat of a struggle.  But, with three wild cards, a good core of guys, Diaz closing, and some reliable starters, you can have a decent shot at the playoffs.  And, you need to think long-term here.

Short term, it is basically depressing for me to watch the team.  I rather the Nationals, who have some good young talent, win 2-1 games than have a couple of relievers screw up and allow the Mets to eke out two runs (around a long rain delay) helped by a wild pitch and a hit by a pitch.   They seem to "deserve" such a win more, granting that is an emotional reaction.  11-10 type wins versus the White Sox that are mixed in with enough losses to stop any real run also do not impress.  

We will see how things go.  One somewhat sad character is Starling Marte, who is struggling with injuries and migraines.  The soon-to-be new daddy has my best wishes. From what I can tell, he is a good guy and teammate, and in the past has done well.  

==

A note: A few people on Mets Twitter (the blue bird is now an "X" thanks to the asshole owner) have felt Pete Alonso (who is doing horribly this season overall) is being mistreated.  They are annoyed a few people think he is a jerk.  I don't really pay attention to other people's reactions to the guy and find doing so a bit silly.  

Alonso has one annoying trait: he seems to have one speed, looking at the positive.  This is fine as far as it goes but at times he comes off as ridiculous when he ignores bad things.  This vibe perhaps annoys some people, making him seem full of himself or something.  I don't know.  

The fan response is also a mixture of people loving Alonso and thinking he doesn't get enough respect for his talent.  Well, this is not a great season to complain about the second thing, when he is struggling, which at times moves past his average to his on-the-field play.  I simply have not seen too much of the disrespecting cited so do not know the reason why.  I think it is in some fashion that the guy rubs some the wrong way. 

Another thing is that the Mets seem to be hit a lot.  This is likely a result of how the players bat.  It is not like there is some sort of conspiracy.  There are some complaints that the Mets never retaliate.  I guess at some point that might be sensible, especially in certain limited instances.  OTOH, again, maybe they get hit a lot because their batting style encourages it. 

ETA: There will be some news in the next few days so won't try continual updates but the Scherzer deal to the Rangers has been confirmed.  Pretty quickly.  

The Rangers are reportedly paying over 20M of his salary  (factoring in next season).  That's more than enough to replace Scherzer next year and have money left to help with other issues.

I will wait and see if anything surprising happens. The platitude is "anything is on the table" now.  Uh-huh.  Who exactly is realistically going to be traded that would be unexpected?    

ETA:  The "anything" is basically Verlander.  The expected: Canha and Pham.  The somewhat unexpected but shrug: Leone.  Raley and Ottavino stay.  They also got a pair of arms to help fill innings. 

A lot of strum and drang over this, talk about "tearing down" and how the GM (I never take them seriously) "lied" about being competitive in 2024. Blah blah blah.  Scherzer is flawed and easily can be replaced from the free agent market.  Others were leaving anyways, except for Verlander.

Money coming back from him too (from Astros; blah to that), so options there too.  This isn't the Marlins after the World Series.  Core basically still there.  Are competitive for 2024.

SCOTUS Watch: A Bit of Summer Life

A few odds and ends in addition to the order list.

First off, we continue to get news articles about the justices and their financial habits/possible ethical concerns. A general look at book deals suggests it is okay for the justices to write them (and profit; that is part of the deal and there is a general First Amendment value to most of this stuff).  But, we need full transparency and clarity on the rules.  

Justice Ketanji Jackson won't provide a statement about her pending book deal.  The public information office sometimes releases statements to the press, which do not provide us a general clearinghouse to have access to them.  So, op-eds like this reference statements (like that of Justice Sotomayor; an email informed me it was originally linked to a news article) while other articles might reference bits of what is said.

==

The "shadow docket" -- for whatever reason, including public pressure, the Trump Administration is no longer trying to obtain a bunch of stays, a 6-3 Court settling in for the long whole -- might be the path to less relief than recent memory.  But, the latest involving a controversial pipeline -- a stay being applied while the court of appeals was hearing oral arguments -- shows it still has some life.  And, the same degree of opaqueness.  

Why can't the justices -- every single one here -- provide a bit more clarity (a reference to "short" orders that say basically nothing annoys me) on what led them to decide to do this?  Prof. Vladeck in an earlier tweet basically read the tea leaves on what the order meant.  A charming way to run a railroad.  

===

Gorsuch granted an "administrative stay" regarding a long dispute in Oklahoma on the proper reach of state and local jurisdiction over Native Americans.  This is a temporary hold so he can hear from each side.

The immediate case concerns a 2018 speeding ticket and the reach of state power.  The article notes that the tribe and individual here argued that Tulsa police can still issue tickets to tribal citizens under cross-deputization agreements already in place with area tribes. So, the immediate rush in the specific case is unclear, though much larger issues are ultimately involved. 

==

Judge Reed O'Connor, a conservative hack who oversteps repeatedly went after regulations of "ghost guns" recently.  Justice Alito put a temporary administrative stay on the ruling.  It will run out next Friday.

This is just the also ran on Justice Alito news today.  Oh yeah.  Alito has already gone to the Wall St. Journal recently to defend himself against a Pro Publica article in a bit of what is known as the "Barbra Streisand Effect"  (get more attention by complaining aka it's counterproductive).   Wall St. Journal was the conduit of conservative insiders during the Dobbs deliberations.  Alito takes things to the next level.

We now have "Samuel Alito, the Supreme Court's Plain-Spoken Defender: He has emerged as an important justice with a distinctive interpretive method that is pragmatic yet rooted in originalism and textualism."  Alito spent hours talking to the authors.  A lot of prime stuff! 

It's behind a paywall but it's getting a lot of attention, including because it is co-written by a long-term conservative legal activist that has a case in front of the Supreme Court next term as well as is defending Leonard Leo, who is in the news of late for various reasons.  Alito's involvement here with this guy seems to be a blatant conflict of interest.

Besides whining that people have not defended him, a prime comment he made is that he voluntarily follows current congressionally set ethical rules, but that he thinks any binding rules are unconstitutional.  Congress has no power to regulate the Supreme Court.  In any number of ways, this is an absurd statement, a range of rules in place including the number of justices, clerks, salary, quorum rules, and so on.  Also, Art. III expressly says that Congress has the power to regulate its appellate jurisdiction.  

There is also the general Art. I, sec. 8, cl. 18 power given to Congress to enforce constitutional provisions.  The explicit text is open-ended and is not just applicable to congressional matters.  Surely, there are various implicit and explicit limits to how far Congress can go.  Nonetheless, the breadth of Alito's comment -- a Supreme Court justice who has had great power to interpret the Constitution for decades -- is patently false.

Alito is telling Congress and in a fashion John Roberts to fuck themselves. There is a limited number of things realistically that can be done in response though it is patently wrong for the Republicans to blithely ignore this sort of thing.  For instance, this should force nine of them to go along with Democrats to support the ethics bill.  Maybe, they can think about that over the August recess.  Not that they are likely to do so.  Still.

Democrats and anyone with credibility, however, should respond to this blatant violation of good behavior as strongly as reasonably possible.  Steve Vladeck's (Shadow Docket) wife is now a legal recruiter and sometimes speaks about legal issues on Twitter and elsewhere.  She has a tweet up about how judges sometimes have abusive relationships with clerks.  As she notes: "Some judges are truly horrible."  

We have a system in place where "grin and bear it" is not the only option.  It may seem like that but it's not true. 

==

We can hear more about this case next week and pending executions also might also lead to Court action.  As shown here, summer order lists are not the only thing the Court is doing. Summer recess or not, it is still in session.  

"X" Marks The Asshole

I first was "online" in college via a bulletin board. The "bitnet" or whatever political discussion basically had similar themes (including involving constitutional analysis) than you can find these days.  As recently as a few years back, I found a bit of my comments still online.  It might have been five years by now, but it wasn't that long ago.

My next thing was the Slate Fray.  Remember that?  The articles in that online publication had a discussion section and there was threading involved.  They at various times gave "stars" to frequent contributors who were deemed worthwhile.  I being a nerd loved getting one.  That ended around 2010 though doing a search, you can find a few of my comments referenced in the Slate fray wrap-up section.  

Then, there were various blogs that allowed comments. Blog after blog stopped allowing comments. A few that I check in on still do, particularly Lawyers Guns and Money.  But, I miss being able to provide comments in various other places, including Balkanization and Dorf on Law.  

Around ten years ago -- that is a long time in some sense -- I joined Twitter. It gave me a chance to express myself and check out a range of good people from a variety of fields.  There are even now still some good people there.  You can find a good thread at times about some subjects.  There is a lot of spammy stuff too.  But, the whole "life isn't Twitter" stuff is silly as if there is some special leaning for someone on Twitter.  

I started to be on Twitter a bit too much so I decided to cut back some last year.  I now cut it back to Mon-Thursday, at least commenting and doing more than just checking in on the Mets or something.  I still comment a lot on those days.  Given the number of times I comment, there are a few comments that people like.  That amuses me.  I also have engaged with some really good people there.  It is not to be dismissed.

Elon Musk decided to buy it and screw it over.  We were told for some time now that "Twitter is over."  Alternatives started to sprout.  They leave something to be desired.  Post is boring and limited.  Mastodon is confusing to even sign on to.  You need an invite (which I have yet to get) to get on Bluesky.  Threads is Facebook/Meta/Instagram and you can't even really use it on a laptop/desktop (to add content; you can view it).

Twitter remained superior in various ways.  Now Musk has decided (for now at least) to replace the famous Twitter bird (the whole source of "tweets") with "X".  The charm to have so much money that you can fuck over something like this.  I saw a reference that his real goal is to change it into a right-wing resource.  I guess.  It surely isn't a profit thing.  

I'm still on Twitter. Or whatever.  The alternatives don't work for me.  Maybe, one day, I will be able to get on Blue Sky.  Anyway, it has already had a good run -- it was running for years even before I got there.  Few read me anyway.

SCOTUS Watch: Summer Order Day

For your planning purposes, summer order lists are scheduled to be issued on July 24, August 21, and September 8, 2023. Summer order lists usually consist of actions taken by the Court on motions in pending cases, petitions for rehearing, and other miscellaneous matters. Emergency orders, such as in applications for stays, will continue to be released as required.

The summer is moving along. We have our first order list, which generally was going to be nothingburgers as a whole given past experience.

The little over one-page order fulfilled expectations. A "Third Interim Report of the Special Master" is addressed and we get a reference to "sur-replies."  Some rehearings (of lower court cases) are denied.  I am not aware of any granted though I guess a few were over the years.  And, one attorney discipline matter is addressed.  Someone chose to resign. 

==

I referenced the Senate Judiciary Committee vote by party-line vote to move along a Supreme Court ethics bill.  It is on some level absurd that no Republican in the committee voted for the bill.  

The bill is a mild one which if anything will help protect the reputation of a majority that leans the Republicans' way.  It is in their practical self-interest even if they think it is also a type of criticism of the people their ideological and financial backers deem heroes.  

(One asinine vote that should get attention was a Tom Cotton amendment that was rejected on a pure party-line vote that would require those with SCOTUS press passes to promise not to leak internal deliberations. A rank violation of freedom of the press among other things.) 

This is not to say the ethics bill is of little value.  The bill not only is of some use on its merits but also sends a general message. Obviously, the bill is partially a dig on the current Supreme Court.  But, it also applies to everyone, and Republicans can cite (if often not too convincing whataboutisms) liberal justices doing something wrong.  Republicans too can get some cred without really giving much up at all.  

As noted here, the Supreme Court is a bit full of themselves about how special they are.  This is not a one-sided thing.  Justice Breyer, for instance, wrote a little book (more of a speech) while he refused to retire in 2021 about how criticism of the Supreme Court would threaten its ability to do its job.  He did not want the Court to be tainted by partisan politics. 

(I will leave it to Prof. Leah Litman -- who is writing a book on the Supreme Court -- to respond though I myself did as well.)  

I think we can go too far in treating judges as mere politicians in robes. Judges are (and do) act in "judge-y" ways in certain respects, including even when being blatantly ideological.  Still, judges serve for "good behavior," something that seems to be blatantly ignored. People seem to think the Constitution says "for life."  Legislators and executive officials do not have a similar constitutional expressed responsibility.  

==

I noted on Friday that there are executions scheduled in August. The opinion page also appears to show that a few more opinions have been translated into preliminary official reports form.  And, various cases are being addressed behind the scenes.  The justices are in recess, but as we say with the execution out of Alabama, they are not totally on break.  

A Spoonful of Time

Someone asked me to find her some time travel books in the library and A Spoonful of Time popped up among the books.

The book involves a middle school Korean-American girl who lives around the present time.  [I listened to a bit of a podcast with the author and she noted she first wrote a form of the story a few years back.]  Her dad died years back and her mom is stressing up raising her alone, even before her own mom (whose memory is slipping) suddenly popped up one day.

Maya is happy to see her grandmother, especially when she cooks traditional meals, which her mom no longer wishes to do.  And, her grandmom shows her how to travel thru time through the power of the memories of food.  Maya meets a boy her own age in her travels.  Meanwhile, she has her bestie at home though there are some complications there when she falls for another classmate.

(The fact the two friends here are of different nationalities and that one likes a girl -- only late is "dating" dropped without fanfare -- is handled as no big thing.  Which is as it should be.  It's 2023.)  

The author (like the mom in the story) works in law, loves pugs (her Twitter feed is filled with pictures of them) -- Maya and her mom have a dog -- and knows about Korean food.  So, Flora Ahn mixes in some of what she knows.  This appears to be her first full-length young adult book, though she has what is labeled "chapter books" about two pugs.  

The food/time travel concept is creative.  The book has some interesting ideas about the nature of time travel.  And, Maya and her grandmother  [well ... there's a twist there] are no experts on how it all works.  Why would they?  Having special talents does not mean you know all the tricks.  A good cook does not always know exactly how all the cooking works.  There is some "art" involved that is natural to the person.

I liked the book.  This is a case where my closest relationship would be with the mother even if the daughter is the main character.  But, this doesn't mean -- like for many young adult books -- only children and teens would like it.  The book is not "dumbed down" in its tone without being inappropriately complex (it is a third-person narrator from the perspective of Maya).  It also tells a family story with a time travel twist. 

The book includes some recipes for the Korean dishes referenced.  Finally, the book has some serious themes, including the loss of a parent.  But, it is not totally depressing.  Its plot makes sure not to be.  I think perhaps it does this once too often. OTOH, maybe a sequel will tell us more.  The book clearly sets us up for further adventures of some kind.  

(Recall it is a plot; it is not like this stuff actually happened! There is a disclaimer on the copyright page and everything.)  

---

The handling of loss is an important theme in the story and warrants tossing in something I was thinking about somewhat connected to it. 

One thing that strikes me is how some people turn against God, at least temporarily when something happens. I know someone like this: they were very upset when a closed loved one suffered.  But, it is not like no one else suffers. Or, that other people's own families did not suffer in the past.  

We should not just think people are silly or selfish.  People are human.  They compartmentalize and things change when something serious happens to them personally.  I'm sure the same happened to me at times in some fashion.  And, not only do different people react differently, they often react depending on how old they are or for any number of reasons.

Another thing is that I think of God as a sort of poetic metaphor.  Going with that, think things thru.  A person close to you suffering is likely to change your world.  Your own sense of "good" and "just" is given a shake.  Your own world has become less godly, even if suffering is an ancient reality, and that one more person doing so is not a novel thing. 

A person questioning "God" should be seen in this context. The person is questioning the overall sense of goodness in the world and in their own world.  Not everyone thinks of the universe as something where a typical Christian-type version of God is the focus.  My understanding, for instance, is that Hindus have a broader view of "god stuff."  

Anyway, when we consider our roles in the universe and how people react to it, we should be humble and compassionate.  We should also think things through (not everyone deeply contemplates things; we can do this in different ways).  Consider the concept of "inyeon," referenced in the book, which roughly describes the ties between two people over their lifetimes. 

An Open Letter to the Biden Administration on Popular Constitutionalism

Before the 2020 elections and the death of Ruth Bader Ginsburg, leftist (there is a line between "left" and "liberal" and I think it fits here), the law professor (and Thurgood Marshall's clerk during the decision of Roe v. Wade) wrote Taking Back the Constitution: Activist Judges and The Next Age of American Law.  

I wrote a book summary on another website.  The book partially is about how there is a conservative-leaning Supreme Court, which was a change from past courts that leaned in their own directions.  The book summarizes its views on various subjects.  Again, this was before Amy Coney Barrett so it noted that the conservative movement only went so far.  But, it left open the possibility that it could go further.  Uh-huh.

This is standard progressive stuff that is useful to remember and keep track of. The truly interesting aspects of the book are his discussions about how we (as progressives, liberals, or whatever) can respond.  A basic way is to win elections, appoint judges, and pass liberal-leaning policies.

Mark Tushnet is a believer in "hardball," which means pushing back at times by not following well-accepted norms.  A "hardball" tactic was to leave a Supreme Court seat open for over a year.  Tushnet believes that "our side" should do that more often.  The Democrats (or their leaders and representatives) being more moderate clearly aggravates him.  I'm sure Sen. Durbin, chair of the Judiciary Committee, still supporting blue slips (a single Republican can block district judges) gets his teeth on edge.

Tushnet also promotes "popular constitutionalism."  This is not just something that is "popular" per se.  He means the people themselves, as compared to the courts, should have significant power to "make" the law.  This is already true (see, e.g., David Cole's Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law) in the development of the law.  Let me quote myself:

He promotes “popular constitutionalism,” which gives the people themselves through political institutions a broad power to set forth constitutional law.  Broad-based popular support, especially for extended periods of time, would have general legitimacy unless the Constitution clearly bars something.  This includes “super-statutes” such as Medicaid or Social Security. 

What happens when the people clearly clash with the courts? This has happened and we think of the bad cases more often, most likely. For instance, after Brown v. Board of Education, the South found various ways to nullify the opinion for some time.  But, that isn't the only way to go. For instance, Dred Scott v. Sandford was often not applied in full force, and after the beginning of the Civil War, it was basically ignored.  

Mark Tushnet argues that if the people on a local level determine something is the law and it is left in place, it basically has realistically become the law.  Again, this is often how the law develops, which I personally think of as a sort of "common law" constitutionalism (especially when the courts recognize the results).  And, this is a way to respond to conservative courts, including the Supreme Court.

What is tossed around here is "judicial supremacy," a term that I find misleading.  The courts have some role and few doubt in some spheres their decisions are final.  At the very least, for the litigants of a specific case. 

The concern is when judicial review is used to settle questions and the results become precedent.  If the courts get to decide too much, they are "supreme."  Should not others have more power, with the added value of it being more democratic?  

For instance, President Obama didn't defend DOMA (specifically the third section) since he felt it was unconstitutional under current law.  If the people didn't like that, they could pick a new president.  Unfortunately, they did (we can debate if this was a clear statement of the public will, including given the popular vote), but there is some general point where the "people have spoken."  So "popular" here has a nuanced quality that means a bit more than something is "popular" as such. It means "people."

I find it impractical to think that the courts do not have a special role in our system. The concept of "departmentalism" where each branch of government (and on some level, that goes down to local governments) get its own separate say to me can be taken to absurd levels. We cannot simply start from scratch each time.  I find this guy's views bothersome (and this isn't the first time).  There realistically and on principle leads to be limits. 

There is a back-and-forth that is part of the separation of powers and checks and balances.  Each branch of government is not just a separate branch with its own limited role.  The lines are unclear and develop over time.  There is no magical clarity.  There are shades of gray. 

Okay.  So is there a reason I am talking about this?  Yes.  Prof. Tushnet co-wrote an open letter to President Biden promoting popular constitutionalism.  

The central tenet of the solution that we recommend—Popular Constitutionalism—is that courts do not exercise exclusive authority over constitutional meaning. In practice, a President who disagrees with a court’s interpretation of the Constitution should offer and then follow an alternative interpretation. 

Contra some simplistic replies found on Twitter and such, he is not saying whenever Biden "doesn't like" a ruling or thinks it is "not popular" (in the commonly used sense) that he should "ignore it." The quotes are summaries of simplistic analysis.

We do not believe that President Biden should simply ignore every MAGA ruling. The President should act when MAGA justices issue high-stakes rulings that are based on gravely mistaken constitutional interpretations, and when presidential action predicated on his administration’s constitutional interpretations would substantially mitigate the damage posed by the ruling in question.

The use of "MAGA justices" is not an invitation for calm reaction to those inclined not to support their views.  It is to be noted too that they also support court expansion, which underlines Mark Tushnet is not merely a median "liberal" voice.  I don't like it, but court expansion is something many Democrats are loathe to support.  

The letter notes that popular constitutionalism ultimately requires the support of Congress and the public though I would note executives still have broad discretion of their own.  Okay.  Again, the letter doesn't say whenever Biden doesn't "like" something that he should ignore the court's judgment. It surely is not saying specific judgments, the cases themselves, should just be ignored.  There is also already a lot of play in the joints.

The critic will sneer at such qualifiers and say it boils down to "like" but that is not what they said.  There is precedent here.  Back to Obama and DOMA.  There was precedent for the executive to not defend something that is egregiously wrong (Alito should like that).  What does that mean?  Well, it is a judgment call.  That is the reality of the situation.

And, we are talking high stakes. Again, we can debate what that means, but a common sense view is that lots of cases do not apply. Many wrongminded rulings can be dealt with, at times with some difficulty.  Some of these approaches are of varying levels of convincing. Again, this is already a thing.  Mark Tushnet is just being somewhat more blunt about it.

The letter doesn't really provide much in ways of examples other than citing the affirmative action cases.  This is a prime case. First, the ruling said they weren't deciding the case of military institutions. Then, they said they weren't overruling previous affirmative action rulings, though the dissent and Justice Thomas basically assumed they were.  

The specific ruling is relatively narrow, at least in some form, so a blatant "ignore" is unclear in some fashion.  I think the core issue here is a suggestion of approach and sentiment.  A sort of "work to the rule" approach that when push comes to shove stretches the court's judgment past where it reasonably should go.  If necessary.

Notably, other healthy and robust democracies do not allow courts to play an exclusive role in constitutional interpretation but promote dialogues among the branches in which legislatures or chief executives respond to judicial interpretations by offering their own competing interpretations.

And, neither do we, particularly in actual form. Did Roe v. Wade lead all government officials to not push back?  No way.  They kept on pushing back, eventually watering down the reach of Roe.  And, we shall see what happens with Dobbs, which is worse than Dred Scott in my view in some respects, including how the justices themselves got there and decided the case.  But, that is another whole can of worms.

So, I am not sure exactly the breadth of the open letter's message. There are some who provide a simplistic view of judicial review and the role of the courts to "say what the law is."  That is surely its role to some special degree. But, how do they do it?  What is the reach of their rulings?  

James Madison in his second bank veto statement (he opposed the specific bank) said that the constitutionality of a national bank specifically was a decided question by then:

Waiving the question of the constitutional authority of the Legislature to establish an incorporated bank as being precluded in my judgment by repeated recognitions under varied circumstances of the validity of such an institution in acts of the legislative, executive, and judicial branches of the Government, accompanied by indications, in different modes, of a concurrence of the general will of the nation, the proposed bank does not appear to be calculated to answer the purposes of reviving the public credit, of providing a national medium of circulation, and of aiding the Treasury by facilitating the indispensable anticipations of the revenue and by affording to the public more durable loans.

This was before McCulloch v. Maryland itself was decided.  He did not think merely "judicial branches" decided the question.  I am no originalist but I am fine with being added by the lessons learned by the "Father of the Constitution" that stand the test of time.  

The courts decide a range of questions, including setting disputes on the meanings of federal statutes.  There are basic constitutional questions that they decide as well.  These tend to be more complicated, at least in many cases.  Our society has generally not accepted that the courts should just have the "supreme" power to decide such questions.  

When the courts push back too strongly against the popular will, there is repeatedly strong pushback.  Checks and balances warrant this as does the rule that "because I say so" alone should be left to parents and little kids.  There is no foolproof plan here.  There is a principle that you should not follow an unjust order.  Sounds nice though we leave it to underlining to second guess their superiors.  So, there are strong limits in place.

The open letter has its own limits, starting with the fact that some law professor who is seen as too "lefty" even by one or more members of that blog probably at times say something only has so much force.  Freedom is a matter of control over oneself.  That is part of democracy.  Democracy also gives power to different groups beyond the courts on these questions.

We should very well think about that.  

$50 Won't Kill Anyone!

Someone made a comment about a local politician or something or other and it made me think of Used Cars. An early adult role for Kurt Russell where he is working at a used car dealership (why the good brother -- of the two played by Jack Warden -- agreed to hire him is unclear) but dreams of getting into local politics.

I first saw it a ways back but it was fun to watch again (and any broadcast television version will cut out the topless bit).  The ending is a familiar bit of excitement familiar to the director of Back to the Future.  

This begins with Kurt Russell mouthing to the good brother's daughter to "lie" and ends with a superstitious salesman (who is scared of red) needing to drive a car that is really red over a moving train to make sure there really is a MILE of cars in the lot.  The whole thing is silly fun and Jack Warden is great as the good and bad brothers.  

I don't know where they got the horrible DVD cover with a bad photograph of Kurt Russell with some woman kissing him while showing a bit of cleavage.  It really looks cheesy. They did get Kurt Russell, the director, and the co-writer (Bob Gale).  One of the last two sounded like he had a lot of beer or something before the whole thing started.  I mostly watched the film while catching a bit of the commentary.  

The film has more than the usual subtitles (Korean? Thai?) and audio (French and Portuguese ... wait, not Spanish?) with various advertising, including a bit with Russell promoting the actual used car lot that is partially used to film the movie!  It also has outtakes.  Not bad. 

A lot of good character actors in this movie. Dick Miller has a cameo, which is probably an in-joke for the director.  He was in a bunch of Roger Corman films and such.  The love interest is Deborah Harmon, who comes off as pleasantly next door.  Her big role over the years, in the midst of a lot of bits, was the television show Just the Ten of Us.  

==

Bonus Film: I also found A Godwink Christmas, a Hallmark Channel movie with a pair of actors in various of those films (multiple times together).  This is a more recent film but I also saw it before.  

It's a pleasant watch.  A charm is that it has a bit more of an edge in a few ways.  Paul Campbell particularly can be just plain flippant in his films. He has some more serious moments here.  And, heck, not only does she have an engagement that went wrong, he actually had a divorce. Divorce comes in a few Hallmark Channel films, but that alone is notable.  

Two Executions

There were thirteen executions in the first half of this year. They are divided among Florida, Missouri, and Texas. Oklahoma, which has been playing catch-up after an extended moratorium after botches, has one so far. The next two are out of Oklahoma and Alabama.  

Jemaine Cannon was another person that committed a violent crime but was held in a low-security environment. As the story notes: 

Corrections officials acknowledged that Cannon should have been at a higher security level but said space in such facilities already was filled.

Cannon had a violent history including one attack where a woman "was beaten in the head with an iron, a toaster and a hammer."  Who is to know what leads a few people to do things like this?  One sympathetic account references his childhood abuse.  His lawyers also say he suffers from stage three Sarcoidosis that affects his eyes, lungs, liver, spleen bones, and skin.  The condition is often treatable but allegedly he doesn't have much longer.  

A brutal murder after escaping from prison and then fleeing to another state lead to a death sentence.  This was back in 1995.  It remains unclear (granting a daughter of the victim wants "justice and closure" -- when surviving victims oppose execution, their desires are often ignored)  what executing him over thirty years later will do.  I remain of the belief that at some point the legitimate state interest to execute lapses.  

(Granting execution is acceptable.) 

Cannon rather pathetically also claims self-defense. What of the other woman he attacked for which he was in prison in the first place? I grant the abused often eventually abuse.  My bottom line: the government had some fault here given he was in prison for a serious violent crime.  Once he was convicted for the murder and (now) confined appropriately, the extended prison time is appropriate.  The execution here is arbitrary and capricious.  

It is not one of the most grievous cases, but when you confine someone for almost thirty years, sorry, executing him seems gratuitous. 

==

Alabama has not had a good one with botched execution.  After a moratorium, they are ready (so to speak) to get back on the horse. The new rules include providing a bigger window to execute so as not to run out of time as happened not that long ago.  Not so ready with the nitrogen.

(Nitrogen was promised to be an ideal alternative for approaching a decade now, but no state used it yet. And, there are grounds to think it is not as ideal as all that, just as lethal injection turned out not to be.) 

The desire to be executed with nitrogen gas after Alabama botched more than one lethal injection is the focus of the last days of James Barber's life.  Barber about twenty years old murdered an old lady as part of a robbery.  He previously dated her daughter and did some repair work for her. 

Barber denied guilt but there really doesn't seem to be much reasonable doubt.  His lawyers asked for LWOP, but the judge followed the 11-1 jury recommendation of death. The murder of a 75-year-old woman whose daughter you dated and doing it with your fists and a claw hammer is liable to get you that sort of sentence.  Barber is white while Cannon is black.

Again, the focus is how Alabama has botched executions, suggesting they have no legitimate power to try and try again.  Executions are botched some fraction of the time but certain states, including Alabama, has had a harder time of it.  Maybe, executing him after around twenty years in prison isn't the way to go.  Maybe, leave him there until 75, if you want.

The coverage does not suggest why Barber in his 40s decided the murder of an elderly woman was the way to go.  He claims innocence so I guess he might not be the best one to ask.  This murder is somewhat less "worse of the worst," not having that murderer on the run from prison, where you already was there for a horrible violent attack angle.  

===

So, where is the Supreme Court at the end of the line in these cases?  Cannon was executed Thursday morning without any final appeals. 

The court of appeals on Wednesday upheld the Barber execution with a 2-1 vote.  Then, it went to the Supreme Court.  Meanwhile, his lawyer was denied a chance to wear a wristwatch to the execution:

The issue of the wristwatch goes back to concerns raised by Barber’s attorneys about the extended amount of time personnel may need to successfully establish the IV lines. That has been problematic in the state’s last three execution attempts, only one of which was successful.

Petty bullshit. The new rules gave Alabama until 6AM (CST) so as midnight approached, they still had time to execute him.  But, the same old morbid execution night vigil routine (somewhat less the case in recent cases) occurred. Why not have a rule where the final appeal is 24 hours before the scheduled execution?   

After midnight (local time), SCOTUS handed down an unexplained denial with three dissenters on record with an eleven-page dissenting opinion by Sotomayor.  The link above said "6-3" though we are supposed to say that we don't know since it was anonymous and theoretically could have been five with one silently dissenting.  I think silence is consent here.

After an unbroken sequence of faulty executions, Alabama asks the Court to trust that this time will be different.

He was executed.  It happened around 1:30AM local time and you can read about it.  Many, including the victim's family, won't be impressed with how Barber comes off as a sort of sacrificial lamb.  Did the state, after three botched attempts (two of whom survived), do it okay this time?

The account does not suggest any problems with the procedure.  I think the Eighth Amendment includes avoiding risk and due process requires a careful process.  The dissents suggest there is a real chance that was not met.  A "try, try again" system, even after all this time, should not be how we do executions in this country.  

The next scheduled executions are in August.  

==

The Senate Judiciary Committee by a party line voted a SCOTUS ethics bill out.  Little chance it will pass but it's a good fight.  

Latest Republican Sleaze

Congressional hearings are a mixed bag. 

Many are scornful at the "kabuki theater" (if that term is still P.C.) of some of them, including certain confirmation hearings. Hearings need not be useless. They in fact provide important functions, both investigatory and as a general means of engagement.

House Republicans have used various hearings in recent months for trollish reasons. Then, House Democrats challenge the witnesses and questioning, which is often shooting fish in a barrel since the whole thing is so absurd. Having the likes of Jim Jordan as chairs and Laura Boebert asking questions makes this even more of a clown show.

Rep. Marjorie Taylor-Greene is no longer barred from committees so is able to ignorantly take part. Her latest is flashing pornographic photographs from Hunter Biden's laptop.  Some excused her of "revenge porn." My immediate thought was that one way that a right to privacy was raised over the years was regarding the excesses of legislative hearings.

Justice Douglas in a footnote to his concurrence to Doe v. Bolton (the abortion case) cites some of the case law.  Various laws spoke of limits against "the invasion of the right of the citizen to protection in his private affairs against the unlimited scrutiny of investigation by a congressional committee."  Watkins v. U.S. is also a big case here, involving the excesses of the investigations during the Red Scare.  

The line drawing here can be hazy.  The Supreme Court in my view wrongly added another layer of protections for investigating presidents when deciding a case involving Trump. Nonetheless, the blatantly gratuitous flashing of sexual photos of President Biden's son here crosses the line.  It is not one that will be enforced in courts; limits are not only secured there.  Congress itself has a responsibility here.

The current control of the House of Representatives is in the hands of a party led now by Kevin McCarthy, who enables Taylor-Greene since she is willing to be his ally.  They are unfit leaders and it is oh so important that they do not retain power after the 2024 elections.  Or get in some other way.

The Hysterical Overreaction to Jayapal’s ‘Racist State’ Gaffe

I write for a few other blogs (see blog list). When I write something, there is interlinking with other things written in the past. Subjects are connected and it helps that I have written about many things. A suitable item for a controversy of the moment is a review of the book Can We Talk About Israel: A Guide for the Curious, Confused, and Conflicted.

Michelle Goldberg (NYT has a mixture of columnists, some not worth reading, some well worth reading; she is one of the latter) has a good summary.  Her piece is correctly entitled: The Hysterical Overreaction to Jayapal’s ‘Racist State’ Gaffe.

Rep. Jayapal is the leader of the Congressional Progressive Caucus. I'll just provide her summary of things:

Jayapal’s gaffe occurred at Netroots Nation, a progressive conference held in Chicago, where pro-Palestinian activists interrupted a panel she was on. The protesters were targeting Jayapal’s House colleague Jan Schakowsky for refusing to sign onto a bill ensuring that American funding isn’t used in the military detention of Palestinian children. Seeking to placate the demonstrators, Jayapal agreed that Israel is a “racist state” — one of their key contentions — and said that the “Palestinian people deserve self-determination and autonomy, that the dream of a two-state solution is slipping away from us.”

The book CEO of the New Israel Fund.  New Israel Fund defines itself as “the leading organization committed to democratic change within Israel.”  One chapter that was uncomfortable for him to write was to discuss apartheid in Israel.  Basically, he granted that Israeli policies in a broad sense did have an apartheid quality in some sense, at least with respect to the occupied territories.  The word has a lot of baggage, however, and it is best to use it in a nuanced way.  

I try to avoid talking about Israel since it is not something I am too knowledgeable about, which made the book useful too.  But, I think this is the correct bottom line here.  

First, this is another "gaffe" (which is different than saying something untrue) akin to Hillary Clinton in front of an ideological crowd talking about "deplorables."  If we want to actually fairly criticize people (which doesn't happen and it's a dream to think it will, so we have to factor this in), what is said in such contexts will be unedited politically incorrect fodder on a regular basis.  Let's not have the vapors about such things. 

Second, if she said anything "wrong" (and on the merits, I doubt she did), it is a rather nuanced thing.  The thing to do, apparently, is to criticize leadership and not say Israel itself is racist.  Labeling Israel as a racist state "demonizes" Israel and is "anti-semitic."  This is slander though it comes off a tad better than when it isn't Kevin McCarthy (who doesn't care if people say racist things if it is on his side, from Trump down) saying it.

The nation of Israel is not the same thing as Jews as a people. Jews criticize Israel regularly.  (This is somewhat unsurprising; we regularly are more comfortable with criticizing our "family" while being mad when others do it, even if they say the same thing we say.)  It is also not "demonizing" to strongly criticize Israel for certain policies.  From the op-ed:

“Israel is not a state of all its citizens,” Netanyahu wrote in 2019. “According to the basic nationality law we passed, Israel is the nation state of the Jewish people — and only it.” He was referring to a 2018 law, which, among other things, downgraded the official status of Arabic, the language of about a fifth of Israel’s population.

The book covers other things Netanyahu has done over his long career, including as prime minister.  We are supposed to at most soft soap these things. This is not the policy of some single group.  Israel -- no matter how much it is an ally and in comparison is better than its neighbors -- has had bad policies, racist policies, like this for some time.

The United States is a racist country.  I might lessen the blow (Mr. White Man) by saying "in some ways," but it would not be some libel to bluntly say it, especially at some ideologically leaning meet-up.  The criminal justice system is systematically racist.  

Politics is about tight-roping. That is fine and realistic to say.  I can understand how various members of the Democratic leadership and others are replying here.  I am not part of that, helping me to note the bullshit quality of all of this.  She "walked back" her comments though people closely reading her statement correctly noted the semantics of it all.

Again, it's useful to quote a portion of the statement. The statement is a reasonable one that shows the type of people I want in power instead of people who want to call conspiracy theorist Robert Kennedy Jr. to testify or who enable Tommy Tuberville to block military promotions to promote radical anti-abortion politics.  

At a conference, I attempted to defuse a tense situation during a panel where fellow members of Congress were being protested. Words do matter and so it is important that I clarify my statement. I do not believe the idea of Israel as a nation is racist. I do, however, believe that Netanyahu’s extreme right-wing government has engaged in discriminatory and outright racist policies and that there are extreme racists driving that policy within the leadership of the current government. I believe it is incumbent on all of us who are striving to make our world a more just and equitable place to call out and condemn these policies and this current Netanyahu government’s role in furthering them.

This shows the context and intent of her remarks.  It shows she realizes the importance of carefully expressing oneself.  It shows she is not saying Israel inherently is racist (as some argue; our own nation opposes officially favoring one religion or ethnic group) but currently has racist policies. This is the truth. It does.  It is very well a racist country in that sense as we are.

The current policies are "unacceptable, untenable, and unjust." The realpolitik of President Biden engaging with the PM of Israel is granted. It is a tightrope. If you can engage with China, you can engage with Israel.  There are various ways of doing this.  

Anyways.  As Israel (again) is bombing Palestinians, can we ... to be blunt ... f-ing grow up a bit on how what she said is all so horrible?  Yes, the usual suspects can gleefully comment on how the Dems on in disarray, and certain Republicans can propose some new bullshit resolution while their own house is filled with reprobates.  We are grown-ups here.  

To use an old hashtag, even as Twitter is supposedly (again) dying, #IAmWithHer.  BTW, on that, the newest thing is a Facebook/Meta supported platform that currently can only be done via an app from Instagram.  I saw something that said maybe you can somehow do a workaround on your desktop or laptop (where I write most of my tweets), but realistically it is not practical.  So, you know, I'm still a Twitter guy.

The other options are things like Post, which has a lot less content and is more primitive at this stage.  Or, another thing where you have to be invited to use, and I have not been.  Or, one that is just too confusing to sign on to.  Or ... Twitter is run by an asshole who screwed it up in various ways, but the alternatives are still not better than the current product, which still has a lot of good people with a lot of good stuff on a daily basis.  

Mets Update

Pete Alonso came back off the injury list and was able to take part in the Home Run Derby and as a backup in the All-Star Game.  His pitcher was unable to go at the last minute and the replacement didn't go well.  Alonso had a poor showing at the Home Run Derby.  He was 0-2 at the game, which the NL won for the first time in over a decade, but was part of a key late double play.  Good pick to complete it and help keep the NL ahead.* 

A former Mets pitcher didn't take part, so Kodai Senga was the Mets' other representative.  Senga announced he was resting for the second half and chose not to take part in the actual game. It's unclear if he would have been inserted anyway.  Senga has been one of the few bright spots for the Mets and had another good game against the Dodgers. 

The Dodgers are the second-best team in the NL and an elite team all around though they struggle some in the first half.  Losing the series would not be embarrassing as such.  Nonetheless, walking the ballpark, not hitting (their offense in the first game amounted to a hit, a walk, and a catcher's interference), and blowing a close game in embarrassing fashion in the second game was another story.  Well, at least, I didn't watch, one game being on Apple TV, the other on FOX.  Oh, the All-Star Game was DULL.  

The Mets were not supposed to be this bad.  Diaz getting hurt was bad, yes, but it is not like other teams did not move past losing some key piece.  The team has more than one pitcher who might be a closer on another team.  The basic problem was that the middle relief was overused. Over and over again, the team had to rely on average borderline pitchers, who sometimes actually pitched fairly well, to pitch around four or so innings.   

And, it is not like the bats are doing well. The rookie catcher is the other key charm.  Nimmo also has overall done well.  He was the major offense in the first two games back -- he hit a home run and another ball that at first was thought to be one.  Baty? After looking like he had arrived, he looks like a rookie again. Alonso has a pathetic average.  Squirrel is struggling. The star shortstop has a low average somewhat clouded by a good run batted-in margin.  He still has not done enough to carry the team.  

One of the new pitchers will finally pitch.  Verlander?  We were assured that he was a Cy Young-caliber pitcher.  Shame of you to focus on his age.  No one would have seen this, after fan after fan (seeing this before) were worried.  Scherzer is scuffling for another year, looking old.  The Mets had a six-game winning streak and went back to form.  The fear now is a false hope (the team has enough talent to have a good run; even the lowly As showed some life at times) and then basically standing pat at the deadline. 

The Mets need to look to the future and two old former aces isn't that.  The talk is that teams realize the aces are over the hill. Okay.  Still.  Eat nearly all of Scherzer's salary.  He showed a bit this year.  Some teams might be willing to take a chance on him being useful enough.  Might be stuck with Verlander. Maybe, he will give you a few months next season.  

The future should be something like this.  Hope the offense does better and gets a better DH next offseason.  Diaz is back, so the pen will be better.  Senga looks like a keeper.  Figure there is another pitcher in the system with potential.  Replace Cookie with another journeyman.  

Overall, win with offense, a decent pen with a shut-down closer, and decent starting pitching.  Eighty-plus million dollars for two starters? No.  And, you might have to sacrifice 2024 a bit.  The "win now" logic of getting Verlander was somewhat misguided.  

Finally, promising not to fire the GM or manager for the rest of the season while the team plays like crap? Not a good look.  If the team put together doesn't work, there should be consequences. The average fan thinks "If I did this, I would be fired and I get paid a fraction of them and do not play a boy's game all day."  And, it is not just a "message."  The team is just not playing well, including playing sloppily.  We can not praise the manager and so on when they play well and shrug our shoulders when they don't. 

How did they lose the second game?  They went back to find a way to lose mode.  It didn't help that your bench is thin especially with Marte reportedly not available.  He's a key player who the team needs to play well. But, the bench should not rely on one person. 

Canha came up with first and third and no one out in the bottom of the eight.  Quick out.  Beard Guy (Luis G.) used to be reliable to come up with a key hit.  Nothing.  Baty also looks outmatched and added insult by making an error.  

But, then, the Dodgers went ahead earlier in the eighth since Alonso couldn't start a quite makable double play.  And, the Mets couldn't come back, like good teams do.  Down 2-1 in the ninth, just off a break, it is like Buck figured the team would lose. He didn't use the closer in a game that was still quite winnable.  Gave up another three runs.  Game truly over man.  

It's 2022 all over again with a holding action manager while ownership (now the baseball relations guy) was settled.  If we aren't in "now" mode, maybe Verlander was a bad idea.  "No other choice with deGrom going."  Not really. An average reliable pitcher could have been had.  Playing desperate.  And, if you want to win now, Vogelbach is not the answer at DH. The payroll is ridiculously high but has multiple holes.  

Will the Mets win today?  Maybe, but the first two games weren't blowouts or anything.  The Dodgers could beat them with a clean 6-2 loss or something that doesn't rely on basically no offense and clown show play.  A sub-.500 team just might be outmatched by the current #2 seed.  OTOH, maybe the good Scherzer will show up today.  The Momento fans, who just think about the moment, perhaps will be optimistic.  

[ETA: The Mets eked out a 2-1 win in the 10th with the winning and losing pitchers both named "Robertson."  

The game was three hours delayed and without Keith was particularly dull to watch but hey they needed to get a win and they did it.  So will they now sweep the White Sox, who actually beat the Braves again?  Sigh.  The team is not THAT bad to just put us out of our misery, though they tried in June.]

The Mets play the White Sox next. They suck.  But, they still beat the Braves at least once this weekend.  The Mets need a sweep.  Don't expect it too much. 

---

* Mets Twitter was on an "everyone is being mean to Alonso" kick. Upset people don't like him.  Seriously?  

He has a sort of cocky attitude that apparently turns some off.  He sometimes ignores reality like not admitting last night he basically should have made the play.  That's okay if he overall performs though as noted he hasn't done so consistently this year so it is a bit less endearing.

But, who cares?  Do you think many Braves fans are upset that Mets fans think they are assholes?  Alonso isn't some wounded puppy that is hurt by the criticism.  I respect fans defending their guys.  Still, at some point, it seems a bit of a weenie move to keep in effect whining about how unfair people are.  This is New York City.  We can take it. 

Ben & Ara

The Westchester County bus system is free in the summer so I was going to take a trip to the White Plains Library. I decided to go to the 42nd Street branch downtown instead. Yes, I do not call it by its new name.

The renovated library is about two years old now. It's a nice place. I didn't check out the snack bar on the top floor yet.  There is a wide selection of DVDs and CDs, including some "great courses" sets.  There are films, television shows (actors, now led by Fran "The Nanny" Drescher, on strike), foreign films, and documentaries.  I took some DVDs out.

I was not sure how Ben & Ara would be in part since the back of the DVD was a bit low-key (if not totally cheap looking).  It concerns an agnostic white Ph.D. student who surprisingly finds a muse in a fellow student who is an African immigrant and a Muslim.  The two photos on the box make her out to be a bit more conservative than she is but yes, curious pair. 

I think the two make a good pair. They are intellectually on par with each other (his girlfriend goes to college and near the end got into a good law school, but she's not a Ph.D. student!). They also seem to click emotionally.  Yes, their religious views don't mesh.  And, we get a stacked deck (he's not only white -- the race thing never comes up -- and an agnostic, in an "open relationship," but has two moms!).  

Still, I think they deep down had potential.  Maybe, the backgrounds and religious beliefs make it impossible.  She would have to basically give up her beliefs and/or mother to really have it work.  I can see things breaking off that way.  But, the film just -- with apologies, tossed in a deus ex machina to force things.  EACH of his girlfriends got pregnant!

His original girlfriend, who he later admits is just someone "comfortable" and not someone he deeply has feelings for (the other guy she has a relationship with does love her and there is a good scene about that), is an overall problematic presence. First, the actress is a bit forced in the role.  Ben & Ara acted in a more free and easy way.

Second, she isn't honest.  They are in an "open" relationship but it really seems like she really only cares about him. This is seen later on when she says he is the only one she has unprotected sex with.  The clear implication is that she wanted to get pregnant and have a continual relationship with him, including when she moves away to go to law school. And, he does ultimately decide to move there at least to be there for the child.

(She also is clearly jealous of Ara and purposely makes it uncomfortable for her when they meet up.)  

Ara has sex with Ben once and she gets pregnant.  I hate this trope. Yes, it happens at times in real life, but in movies, it is a too common plot device.  We are not shown ultimately what happens though it seems fairly clear she decides to have an abortion.  She ultimately is engaged with the person her mom is pushing her to marry (it is assumed that is the one) and even decides to take his name.  Ara all this time is not interested in even going to a family dinner with him and decides to marry him.  

(As I understand it, many Muslims think abortion is acceptable up to the fourth month, but that would not justify premarital sex.)  

Now, this overall is also on Ben. He is in his twenties and already has his master's. He is in an open relationship and now has sex with a devout Muslim who told him she was a virgin. And, he doesn't bring up the idea of birth control?  And, does he just assume his other girlfriend uses it?  He just seems clueless, including when after Ara moves in, he has a party with a bunch of people she doesn't know and it has a lot of drinking.  She doesn't drink. 

His immaturity is shown earlier when he goes out of his way to trivialize her beliefs but not only does he later beg her forgiveness, it probably was a reflection of his fear of commitment.  Still, I find it selfish and self-righteous when people make a big deal about the stupidity of "imaginary men in the sky" or something as if atheists don't have a variety of stupid beliefs.  Likewise, it is a lack of empathy for how people express basic human emotions and ultimate questions in ways they understand.

Anyway, I can understand if the two just come from too different worlds, and Ara particularly was not willing to give up hers for him.  But, the film takes the simple way out with the whole pregnancy thing.  Uh-huh. See! Ara's conservative beliefs are correct since free and easy living results in pregnancy, even when you have sex once!  Not quite.

I think the film papers over the role of Gabrielle (the actress is half-indigenous too) here as I noted above.  But, it is not like Ben comes off that well either.  He comes off as rather selfish with Ara the most level-headed of the three, even if she experimented with a new experience when she fell for Ben with some degree of recklessness.  The actress has had various roles.  Again, she was the best character in the film.  

I'm glad I watched the film.  It was a bit different, including having two people from different worlds meet up because they were in the same Ph.D. program.  It is overall well made and acted though again a key role comes off as forced and/or underwritten.  The couple talking, including a smart black devout Muslim woman speaking her mind was great to see.  

Still, I did not like where it eventually wound up.  I felt cheated there.  It isn't even that both of them eventually wound up going their separate ways back into their general separate worlds.  The film used a lazy device to get them there.  

Also, the Ben half of the group was a bit too immature to carry being in the title.  He benefited from her being his muse -- he shaped up and presented his Ph.D. after an extended delay.  What did she get?  She did get her Ph.D. but it sure seems like she settled.  Her mom told her that she had a fling in college but found someone who was worthwhile.  Which is fine too.  

We don't see Ara actually appreciating her ultimate fiancé.  We just get a time skip and Ben & Ara are apart and went their separate ways.  It feels like a big cheat on her part.  Life can work that way. This is a movie. It's a choice.  The movie had some good stuff but seems incomplete.  

===

ETA: I noted in passing that actors have gone on strike. Writers already were on strike, shown by the lack of late night television for quite some time now.  

A major concern is the use of artificial intelligence to replace actors.  There is an interesting piece on the importance of "background actors" and how their image can be exploited cheaply.  

I respect supporting actors in films -- small roles often make a movie worth watching or give it that extra something. The same can be said about this film. Background actors sound like glorified extras. But, they too can have value.  And, it is a fun way to watch those sitcoms and other things you watched many times. What are the background actors doing?

Federalist Society

The summer recess is here so Strict Scrutiny Podcast will now have special episodes covering a range of topics. 

This week included a guest that talked about her now old if quite relevant (2015 or so) book on the Federalist Society. Amanda Hollis-Brusky.   I'm not sure if I tried to read it before. It is basically a thesis project translated into book form.  It is a bit hard going as a run-of-the-mill book.

The book talks about the influence of the Federalist Society on the law.  It doesn't directly as an institution lobby as such. It just is that its members lean a certain way and have a lot of influence. The Federalist Society ultimately "institutionalized in formal networks" a segment of people.  

Leonard Leo, a top official is in the news of late.  But, we also now have clerks, justices, voices in academia, and advocates (and amicus) in front of judges all a product of this early 1980s creation.  There is a laughable blurb on the back cover from John Yoo (yeah that guy) saying the organization "takes no positions" and is a "debating society" but somehow still has a "profound influence on constitutional law."  By osmosis?  

The book's title comes from an old line that "ideas have consequences."   Sure enough.  It is "stop bullshitting me" to ignore that the group is filled with people with ideological leanings of a conservative and libertarian persuasion.  They have personal and professional ties with each other that would not exist if they were liberals.  They offer each other "intellectual capital," most clearly shown in Justice Thomas's opinion citations.

The author basically uses the book to discuss the nature of the group and its influence.  The book is not meant to be a critique as such.  Fine enough.  I can do so.  One thing that is annoying is how they and their advocates self-righteously use platitudes like the importance of judges to interpret the law and not "make law."  Special snowflakes.  Liberals interpret the law. You just disagree with their approach.  Courts make law by "clarifying" it, including the Supreme Court choosing from a variety of options.  

They also say they are concerned about "individual liberty" and the separation of powers.  Again, who isn't?  I am not going to play "gotcha" games here like when conservatives pretend to be libertarians.  We can be serious here.  The "major questions doctrine" very well can be shown to dishonor the separation of powers by taking power away from Congress and the administrative agencies they rightly have.  

Originalism is supposed to be a means to have judicial restraint. It's a fool's errand.  This is not new either. People are able to lie to themselves without being conservatives.  But, the point holds.  Three basic problems.  There is too much water under the bridge to apply the "original" law.  Stare decisis is a thing even now.  Modern times are too different, so new approaches are going to be applied. And, originalists themselves don't want (or are able) to act like they are LARP-ing as 18th or even early 20th Century people.

(The bonus is there are disputes over the original meaning and broadly speaking it includes the "living" constitutionalism that they sneer at.)  

The overall concept of the Federalist Society is not illegitimate. There is a general legal ideology and various interrelated groups are working together to promote it.  I did not read the book (skimmed it a bit; again it's too academic for me to get into it) but I would add there are things these days that weren't in place in the past. For instance, some sort of network was in place in the 19th Century.  But, there were no law clerks.  And, law schools were much less important than they are now.  

Two basic things bother me.  First, again, too much bullshit.  This includes some liberals (I have one in mind) upset at them but who still politely debate them as the society was used by Trump and so forth.  This is more "we are just a debating society" business as if there are only a few bad apples and it isn't some united whole (if somewhat loosely organized).  

The second is that they are using their ideas and power in bad ways. This is both the merits of their positions and things like the Alito and Thomas stuff.  The author seems to at least somewhat grant (at least for the sake of argument) there is a line between individual members and the group as a whole.  At some point, that is just hard to take seriously.  

Finally, is there a liberal Federalist Society?  The wannabee is the American Constitutional Society, perhaps.  I don't think it has the power of the Federalist Society.  Also, there is a general liberal-leaning legal community out there.  President Biden is choosing many people who are not only checking off the diversity checklists but that they appreciate on the merits.  There surely are some institutional connections there and liberal judges quote academic stuff too.  But, there is not one group like them

Liberals also are not as hard and fast with interpretation as conservatives with their appeal to "originalism," which is surely a loose term.  So, Justice Ketanji Jackson did not want to be tied to a particular interpretative vision though she clearly is showing some support for a mixture of text and general intent.  

Some liberals don't like the "living constitutionalism" term though it is valid.  One person said "constitutionalism" itself implies that anyway.  Granted.  It is a bit cute though since it doesn't explain itself.  Not that "originalism" really does much better since what exactly was "originally" understood?  Maybe, the understanding was things should be open-ended.

I think experience has shown that we have a form of common law constitutionalism.  This bothers some people since it seems to give judges too much power and perhaps is a contradiction in terms.  The Constitution is a written document!  Yes.  But, it is a framework.  It has a lot of "give" to it.  And, judicial interpretation over the years develops, influenced by the norms and understandings of the day.  The "common" law.  

Liberals sometimes are misguided but their view of the law to me tends to be more honest, all things being equal.  They know choices are made and the key is what is behind those choices.  If this scares you, welcome to life pal.  The alternative is to lie to yourself and that's not great.  

Supreme Court Watch: A Bit Happens

Summer order lists begin in 10 days. A vote on the Senate ethics bill is pending. There are two executions scheduled next week. Slate has a good summary of the different dissenting perspectives of SCOTUS liberals. Still pissed at the Court as a whole.

We did have a bit of news. We have the first scheduled oral arguments for the 2023-24 Term.

ERA Again

Emboldened by the Supreme Court’s overturning of Roe v. Wade, Sen. Kirsten Gillibrand (D-N.Y.) and Rep. Cori Bush (D-Mo.) Thursday unveiled a measure intended to ensure that equal rights regardless of sex are guaranteed and durable in the United States.

I have paid attention to the various ebbs and flows of this drama, which is something of a big sideshow. 

Not too many people are likely aware that there is a push to ratify (or argue ratification happened) the ERA in the 2020s.  There was more attention a few years ago when three states (Illinois, Nevada, and Virginia) seemed to make it the necessary thirty-eight to ratify.  The 38th state is Virginia so even with the two-year time lag until it is active (section 3), it would today fully be actively active (so to speak).  

There is a sort of phony feel to all of this. Ratifications of amendments should not be on the down low.  And, putting aside the 27th Amendment, which is just a joke, it shouldn't linger on for fifty years before being ratified.  This is something like leaving a vote in Congress open for a decade or something.  It is just an absurd way of doing things.

The latest thing is to push the argument that Congress itself does not even have to remove a deadline that was put in place (and then extended for a few years) and lapsed over forty years ago.  The idea the great leaders of the ERA did something illegitimate to me is rather dubious, including since a timeliness requirement is respected in Coleman v. Miller. 

The deadline, unlike for some amendments (and proposed amendments) is not in the amendment itself.  It is a separate congressional thing like a separate vote to determine punishment after someone is convicted of impeachment (a permanent barrier from office is not obligatory).   

The whole thing is academic especially since the vote is open to filibuster like the vote to remove the deadline.  I have repeatedly noted that I find it sketchy to even do that -- too much time has passed, and the times are much different -- but I think Congress has the power to do it.  

Announcing the amendment actually has already been ratified is a bit more.  And, it already would fly in the face of at least one lower court of appeals judgment rejecting the argument.  I think correctly.  I also still am not quite sure what the ERA does and changes since we already have heightened scrutiny based on sex. And, Dobbs alleged that doesn't even support abortion rights, which flies in the face of Casey and reality.  

(Mary Ziegler, the abortion historian, flags how a recent anti-trans case out of the Sixth Circuit -- yeah to a Biden judge confirmed to it yesterday -- used a thin view of sex equality "applying" Dobbs.)  

I think the case for a broad view of the ERA is sensible.  I am partially inspired by a "thick" reading of the Nineteenth Amendment, offered here by Litman and Hasen.  

Way back in Adkins v. Children's Hospital, shortly after ratification, the amendment was used to argue women now were in an equal role in the public economic sphere.  An influential lower court ruling before Roe cited the Nineteenth Amendment to show the equality aspect of reproductive liberty.  How do women enjoy equal citizenship without control of their bodies?  Equality is essential to democracy.

These are continuing battles worth fighting even if I am not really on board with this specific technique.  The text and history of the ERA suggest a broad view of equality, not limited to that is found in the Civil Rights Cases, where the federal law against discrimination based on race was deemed not an appropriate enforcement of the 14th Amendment.

Still, good law even if interstate commerce was later used.  Equality is being threatened nationwide.  Sen. Tuberville is holding up -- for months now -- hundreds of military promotions because he opposes the military allowing (and paying travel costs) women to travel to other states when necessary to obtain abortion services.  One senator doing this for something defensible would be bad; this is just putrid.

(Sen. Durbin joined the denunciation but when Tuberville was out of town, he said that tradition was that you didn't vote that way. People noted Sen. Harry Reid wasn't so polite.  Durbin also refuses to oppose blue slips for district court judges, even after Republicans abuse it and shows no such courtesy.  He is taking a knife to a gunfight.  The many lower court judges that were confirmed is nice, but again, they are mostly district court judges, and Trump got in three justices.  Can't rest on your laurels there.)

It would take a long drawn-out process to do these individually, so universal consent is required. Republicans can join with the Democrats to change the rule.  But, they will not.  McConnell or anyone else saying they oppose him, therefore, are full of shit.  And, if you spend hours upon hours (the amount of time spent on Senate votes to consent to nominations is absurd) doing it, what will stop yet another troll to do it for something else?

[Tuberville is a horrible person generally and basically got in trouble in the last week or so for finding it hard to admit white nationalism is racism.]

The House is working on the big defense spending bill and last night by basically a party-line vote (two Republicans -- not fake moderate Nancy Mace -- and the conservative border senator who barely won his primary is the sole Democrat) they voted with Tuberville.  They tossed in some anti-trans stuff, including a Boebert amendment involving so-called "radical gender ideology books" in the libraries. Charming business.  

(On the book front, found an interesting young adult book about a woman code breaker, Elizebeth Smith Friedman.  Not a typo.)

I'll end with a repeat slam against Rep. Nancy Mace (R-SC), who at times tries to come off as reasonable, including being upset at abortion extremism.  Not voting against leaving open women in the military (including family members of the men) have the means to merely travel to places that still provide abortion access would be a sign she is not a big phony.  But, only two Republicans voted against that measure.

This is where we are, including on sex equality, which broadly speaking involves GLBTQ+ rights.  It's insane.  But, this is the party that could not convict Trump, who has been a traitor to our values since his campaign helped the Russians "ratfuck" the 2016 elections.  

Oh well. I do think at some point -- aside from the 27A, none was ratified in my lifetime (I'm not ancient, but not quite young) -- the Constitution needs amending.  Theater like this won't do much but the ideals are good.