Trying again to revive ERA

Lyle Denniston earlier this month flagged another attempt to ratify the Equal Rights Amendment [N.Y. has their own state version on the ballot]:

In a vote at the annual meeting in Chicago of the ABA’s policymaking arm, the House of Delegates, the lawyers’ group approved a nationwide campaign to make the Equal Rights Amendment the Constitution’s 28th Amendment. That would be done without any need for further action by Congress or by the states, but by a simple declaration by a federal government official, the National Archivist – the keeper of the federal government’s records.

The Bar Association’s new plan is based on three legal propositions:

1. That 38 states, the necessary minimum number, have already ratified the ERA.
2. That no state will be allowed to withdraw its earlier ratifying vote – as six states have attempted to do.
3. And, that the Constitution does not allow Congress to put any time limit on when a proposed amendment must be ratified to complete the process specified by the Constitution’s Article V. 

I have examined this issue in the past. My reading of the history and tradition along with text and other interpretative mechanisms is that states do not have the power to withdraw. 

Art. V. suggests that a state ratifies. There is no suggestion of "backsies." Likewise, multiple times, covering more than one amendment, an attempt for a state to revoke ratification has been rejected. 

I disagree that the Constitution does not give Congress the ability to set a time limit on when an amendment must be ratified. Multiple amendments do have one in the text of the amendment. It also can be provided as a separate matter in the enabling resolution.

(A resolution -- like applying the punishment after conviction in an impeachment -- can be done by a majority vote. If a time limit is in the amendment, change can only come via a supermajority vote.)  

The ERA was passed with such a deadline, which was extended for three years. The new deadline expired over forty years ago. 

This procedure was a sound means to execute the amendment process. Congress has the power to "fill in the blanks" via the Necessary and Process Clause. 

Reference is made to the 27th Amendment, which was first proposed along with the Bill of Rights (another amendment was as well and was never ratified). There was no resolution providing a time limit. 

Also, there is some evidence that people in the early 19th Century didn't think the proposed amendment was still active.*

Dillon v. Gloss (1921) reasonably suggested the implication was that proposal and ratification would be "sufficiently contemporaneous." A more contemporaneous article discussed the matter, covering more ground. I found it convincing. 

The Supreme Court at that time thought it somewhat absurd to think two amendments proposed in 1789 could still be ratified. I agree with them. 

The Supreme Court in Coleman v. Miller (1939) reexamined the question. It addressed both a time limit in the amendment itself and in the "resolution of submission." The Supreme Court said that it was a political question for Congress:

In short, the question of a reasonable time in many cases would involve, as in this case it does involve, an appraisal of a great variety of relevant conditions, political, social, and economic, which can hardly be said to be within the appropriate range of evidence receivable in a court of justice and as to which it would be an extravagant extension of judicial authority to assert judicial notice as the basis of deciding a controversy with respect to the validity of an amendment actually ratified.

Four justices went further and would have made the whole amendment process a political question. Two justices dissented, arguing at least given the facts of the case, the Supreme Court could and should deem the amendment in question no longer ripe after thirteen years.  

I will not say that the ruling of Coleman v. Miller provides such a compelling case that no other position is reasonable. Likewise, just because the Supreme Court ruled on something in the 1930s, it does not mean it should hold for all time. 

The ruling, however, is reasonable. There is no sound reason to overrule such a longstanding precedent. Congress set forth a deadline. It passed. 

The final three states do not count unless Congress revokes the deadline. It has the power to do so though I doubt it would be a good idea. The body with the official duty to certify that an amendment passed has not done so. They were right.  

I think the text of the ERA is overall a positive thing though I do not quite know its true reach. What does "Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex" mean? It is broader than the Equal Protection Clause. How much so? 

I'm also wary about an equality provision singling out one class of people. I like general provisions like the First and Eighth Amendments. Still, I'm open to the idea. If we ratified it now, it would probably have GLBTQ reach that the original framers might not have expected. I am fine with that.**

But, I do not think it is sensible constitutional procedure to hold open an amendment to the Constitution for over 50 years! If we still think it is necessary -- a lot of water has flowed under the bridge -- it should be resubmitted. 

The American Bar Association doing this has symbolic significance. There also have been multiple attempts by people in Congress in recent years to ratify the amendment. The filibuster made it particularly unlikely. Many people are not aware of the efforts. I think the ratification of an amendment probably warrants more popular knowledge.  

What value would ratification now bring? Current doctrine holds that classification by sex must meet "exceedingly persuasive justification." 

People point out that the law can change. Also, the ERA appears to require a higher test. What sorts of things would change? Often discussion is rather vague. Other times they are somewhat misguided. 

For instance, Dobbs rejected arguments that a constitutional right to choose an abortion was required for sexual equality. The ERA by itself would not necessarily change that.  

The ratification history of the ERA suggests that its backers supported a broad reach. The provision spoke of "equality of rights under the law" and "denied or abridged." The Civil Rights Cases held that the 14th Amendment did not apply to public accommodations. 

Would the ERA? Perhaps so. The 1970s view of equality was open-ended. We now have a wider view of rights, including talking about "right to health care."  The reach of the ERA should be broad.

If so, it only underlines the importance of a contemporaneous ratification. An argument can be made that Congress provides a proper means of representing the will of the people here. 

Nonetheless, Art. V provides a higher test. When we change the Constitution, it should be a higher test than the passage of legislation. Maybe, the current process to too tough, allowing a few small states to block change. The overall principle still holds.

The ERA was proposed at a different time and place addressing different concerns. Coleman v. Miller soundly held that Congress can factor that when setting up the rules for ratification. 

I think the ERA is probably no longer ripe. Congress under Coleman v. Miller does have the power to revoke the deadline. They rightly have not.  

At the very least, if we grant 38 states "ratified" the amendment and that no state can take their votes back, a time limit is sound constitutional practice. It is in Congress's court to decide if the ERA should be ratified. Once it is, there is a two-year grace period before it is put into place.   

In 2020, the OLC determined that Congress could not extend a deadline. I don't think that is sound, especially given Coleman v. Miller.  It is also questionable a Biden/Harris OLC would hold the same thing. They should not. 

For now, the question is somewhat academic, but we do that sort of thing around here too.  

==

* I don't have a link but recall reading a law article discussing how one or more amendment proposals in the early 19th Century assumed failed amendments at some point were no longer active. Such early practice is of limited interest but somewhat notable.  

The amendments in question would be congressional pay, apportionment rules, and (later on) an amendment extending title of nobility limitations. 

Later on, the "Corwin Amendment" that would limit federal power over "domestic" institutions also was pending. The amendment particularly covered slavery but the text does not only cover that institution.  

The 27A covers a very limited ground and eventually was ratified by over 40 states. One idiosyncratic example is not enough to settle the question.  

Maybe, the ERA is mostly symbolic at this point, but it has more bite than the 27A. 

** Michael Dorf here argues there is no actual difference given current precedent. It's a symbolic measure. 

Why wouldn't adding the word "abridge" mean anything? Ditto factoring in the broader intent of the amendment. I also don't know what "equality of rights" adds. Still, different wording might matter. 

He separately notes singling out sex won't burden the attempt to protect other types of equality. Maybe?

Dorf also links to a Verdict article that covers the overall ground of my discussion. It is generally agnostic but somewhat leans toward accepting ratification. To that degree, I somewhat disagree.  

Vance, Harris, and a Flubbing Beauty Contestant

Upton, now a 35-year-old mother of two who has posted conservative memes, wild claims of voting fraud and Students for Trump material, did not see his joke in a positive light. “It’s a shame that 17 years later this is still being brought up. Regardless of political beliefs, one thing I do know is that social media and online bullying needs to stop,” she said on X—then deleted her account shortly afterwards.

Caitlin Upton (listed as 5'10") was a Miss Teen USA (Trump owned the pageant from 1996 to 2015) flubbed an answer about maps in 2007. She was the subject of ridicule. I'll grant that I thought the answer was really stupid. 

(“Recent polls have shown a fifth of Americans can’t locate the US on a world map. Why do you think this is?” Aimee Teegarden of Friday Night Lights asked the question.) 

Still. She was eighteen. She froze while answering a question. It's like when someone gives a stupid answer on Family Feud. And, sometimes, when you start saying something stupid (to be blunt), you continue to ramble. It's best, after being human about it, to have some empathy. Or, empathy first, if possible.

Anyway, why is this whole thing -- which is "more than 17 years old" to quote a label when I looked up an article on the matter -- relevant again? Yes. James David Vance is being an asshole again:

JD Vance posted a video of Upton’s humiliation with the caption, “BREAKING: I have gotten ahold of the full Kamala Harris CNN interview.”

So topical, James. The coverage includes a notice (did not recall reading this) that Caitlyn revealed that she was so upset at the reaction to the original flub that she had thoughts of suicide. 

National embarrassment is horrible. Again, some empathy, even for the latest subject of ridicule ... at least, if they are just guilty of goofing up. If they did something really wrong, they deserve more shame.  

When asked about the joke:

Vance expressed sympathy but did not apologize, stating, “I’m not going to apologize for posting a joke, but I wish the best for Caitlin and hope she’s doing well.”

Slate discussed why Vance is so bad at telling jokes. Jokes for him are a way to express bitterness. He has problems "reading the room." Shades of McCarthyite in The Best Man, he lacks a certain general empathy.

Upton herself found that she still had issues with the general public. As noted in the opening quote, she has been a Trump supporter and not just back in the day when he ran the pageant. People reminded her.

She took down her Twitter/X account. I think it is appropriate to tell the whole story here so did lead with both parts of the opening quote.  

This does not justify Vance's comment. It was a crude, sexist attack -- par for the course -- against the first major Harris/Vance joint media interview. On a lesser level, besides again shaming a teenage girl, it used an outdated meme that is one more level of stupidity.

(The interview overall appears to have generally been a success with nothing too earth-shattering said.) 

A long time ago, if not as long ago as the map flub, I thought up "six simple rules," leading with not being a dick. It's hard when that is a basic part of your personality.  I'll have some empathy for Vance, but darn, he should be nowhere near being vice president. 

And, Trump has had his own rambling flubs, but he's no teenager. I don't think I want Upton in office either. She's an adult now and should know better. 

==

Note: An article discussing Trump's bouncing around regarding the Florida abortion measure was telling. 

Multiple Republicans, including strongly anti-abortion people, both tried to convince themselves "deep down" that he was right on the issue or justified voting for him. Talking about human nature ... not surprising. 

SCOTUS Watch

Trump v. U.S.

Jack Smith didn't roll over and die after the Supreme Court handed down its perverse immunity ruling. It also didn't by its lonesome end the prosecution.

The opinion handcuffed prosecutors in multiple ways regarding "official acts." Jack Smith, with a new grand jury, brought a superseding indictment to try to avoid any possible landmines. The basic charges are the same. The details are somewhat different. 

The assumption was that there would be a hearing in front of the district judge to determine what could be used. Jack Smith preemptively acted. We will see how it goes, including the likely appeal.  

The November elections will be the big test to determine if the prosecution continues.  

Student Loans

After the Supreme Court struck down one approach, President Biden used another to put in place another student loan forgiveness plan. States sued again.

The Eighth Circuit recently blocked the plan as litigation is pending. The Biden Administration asked SCOTUS to lift the injunction. The Supreme Court, noting it "expects that the Court of Appeals will render its decision with appropriate dispatch," refused. 

(Some are confused. The Supreme Court is not making a final decision that Biden's policy broke the law. They did, without open dissent, let the policy be held up in this litigation as the lawsuit goes on.)  

Alaska and other states in a separate lawsuit arising in a different circuit also asked the Supreme Court to vacate a stay. The Tenth Circuit did not block the program. This set of states also asked the Court to vacate a stay, but going the other way.

Once the Eighth Circuit decided, the 10th Circuit also held up the plan. So, there is a conflict between the circuits, but for now one unity. 

Given that, the Supreme Court said no relief was necessary. Chris Geidner explains this involved some hypocrisy -- the first court put in a "universal injunction," which goes beyond the specific litigation. Gorsuch and other conservatives, when it is convenient, find this troubling. Not here. 

Amy Howe also discusses the two orders. Steve Vladeck noted on Twitter how busy the Supreme Court has been dealing with emergency/shadow docket requests.  They have reached 100 decisions (full Court) for this term.

Justice Jackson Book 

Five of the last six (not Kagan) justices appointed to the Supreme Court have had book deals. The last three have pending books though I'm not sure how many people are interested in a book by Kavanaugh. 

(Thomas wrote an autobiography and Breyer has written multiple books. Rehnquist, O'Connor, and Stevens wrote multiple books too. I would be interested in hearing from Souter and Kagan.)  

There has been some concern that the high book advances -- Justice Jackson stands out with a nearly 900K deal -- exceed likely profits. What would be the problem? If there is some sort of undue influence, point it out, and use recusal rules to address it.  

This is the concern with Thomas and Alito making trips with billionaires and the like as well as a lack of proper disclosure. It is not suggested that Jackson has not disclosed properly. Sotomayor was charged with unethically using court personnel to promote books.  

I think the justices as a whole have written some interesting books. I am not personally interested in reading them all, including a book on legal writing co-written by Scalia. Jackson has given an interview related to her latest book, following in the footsteps of Gorsuch, who also has a new book out.

Some people do not like justices being "celebrities," but engaging with the public is probably a net good. It does underline the concern about providing more openness, including access to the interviews, and most importantly, court proceedings.  

A few justices in the past also engaged with the public though not to this degree. I think it is generally a product of the times in which there are more media engagements overall. Judges chosen partially for their life stories, including Justice Jackson, also will be more subjects of interest.   

The justices receive a set salary and there are some limits on what they can receive otherwise. If Congress wished to add a limit involving book deals, limiting how much they received, it might be appropriate. Perhaps, a First Amendment concern might arise. 

Overall, however, like Fix the Court (see the linked article), I'm not that worried about it. 

Georgia Election Threats

Trump is patently unfit as well as simply horrible but we still have to sweat thin margins in swing states because of the damn Electoral College. The Electoral College is somewhat better, in a way, than Trump's scam university but not too much in the 21st Century. Only one got us two dubious "leaders of the free world." 

Georgia is one swing state where Biden barely won along with both Democratic senators, who allowed the Democrats to have a trifecta. It was a close call -- a fraction of one percent of the vote led to a runoff (thanks to the Libertarian candidate) for Jon Ossoff, helped by a freestanding election after Trump was tainted. 

Georgia County Installs ‘Panic Buttons’ For Poll Workers As Concerns Grow Over New Rules

Georgia has a semi-sane Republican governor, who is not "all-in" on MAGA electoral fiction. He supports various burdensome voting requirements that needlessly make voting harder. He is a Republican. He now is pro-Trump though is trying to split the baby, so to speak, on just how crazy he wants to go regarding election denial tactics. 

I notice the above article. One thing that makes it feel personal is that I do poll work. We don't have many problems here* in New York City and the two places I worked generally were smooth sailing. We have many polling places here, 10 ten days of early voting, and generous voting by mail rules.  

Lest we forget while it slowly moves along, a basic issue in the Georgia criminal case (also a civil lawsuit against Rudy Giuliani) was harassment and lies against two African-American poll workers. They are not alone.

Both parties, if they warranted our respect, would on a bipartisan basis be concerned when we get to this point:

The need for panic buttons is reflective of the current threat environment that election workers find themselves in. Neal Kelley, the former registrar of voters for Orange County, California and chair of The Committee for Safe and Secure Elections doesn’t think the implementation of these panic buttons is extreme, but rather, a necessary step to protect election workers. 

The 2020 election shows the potential dangers, especially if poll workers angered MAGA types by simply doing their jobs. Election officials are not happy about two new election rules that will make it harder to confirm the results:

The people who run elections in Georgia are angry and frustrated over new state rules that they say will make the process less secure and their jobs more difficult.

As the panic button notes -- we should always be concerned about the wider issues here -- the rules are dubious:

One of these rules gives the Georgia Election Board the authority to not certify election results until a “reasonable inquiry” into any discrepancies in the voting process at the county level has been conducted. As TPM has previously reported, the rule is vague and does not explain what constitutes a “reasonable inquiry.”

And the second rule, gives election board members power “to examine all election-related documentation before certifying the results.” This same rule also dictates that if there is a discrepancy between the ballot count and the number of voters, the board must investigate the discrepancy before the election can be certified. 

Our nation's elections are still largely state-run. It can turn on state litigation. Florida in 2000 showed how this could have national effects. It also underlines the stupidity of the Trump v. Anderson ruling. 

So, state regulation of the 14th Amendment provision might cause difficulties? Oh no! That never happens! The fact three of the justices involved in that case were also working behind the scenes in Bush v. Gore (Alito was a judge, Thomas was a justice, and not sure why Gorsuch was not involved) underlines the hypocrisy. 

Sen. Schumer says Senate Democrats are open to altering filibuster rules after the 2024 elections, including to pass major voting rights legislation. A bipartisan bill was passed to update the electoral vote process, making it harder to cause problems. Not surprisingly, this occurred when the Democrats fully controlled Congress.  

We are still far from having another trifecta to make such legislation possible. It also will not remove all problems, including the overall troubles with the Electoral College possibly negating a large popular vote victory. 

It underlines the importance of voting blue. 

==

* Update: Okay. Well, we don't have people waiting for hours on lines and so on, but this blithe comment was somewhat too flippant. 

I was informed about a Board of Elections worker (Republican) indicted for extortion and conspiracy, including accepting bribes to give poll worker positions. Again, that hits home. 

The NYT article expands on recent problems:

The charges against Ms. Torres are the most recent in a string of scandals at the long-troubled board, which have included failing to mail out absentee ballots, a botched rollout of the ranked-choice voting system, disenfranchisement of voters and more.

So, yes, we have work to do here too.

Trump’s Arlington Cemetery Campaign Event

Trump lies so much, is horrible so much, and so on that it at some point becomes standard fare. The normalcy of it all benefits him. 

So, for instance, yes the news of a new indictment in the D.C. criminal trial (he has four) isn't big "news." There has been an attempt to prosecute him for years now. There seems to be always some new wrinkle. It does get boring on some level.  Ho hum. 

We need to try to avoid that. It helps that there keeps on being new fodder. Novelty helps overcome resigned normalcy. See also, Vance being an asshole.

Three days ago, the Trump campaign held a campaign event at Arlington National Cemetery. The idea was to lay a wreath honoring the 13 members of the U.S. military who were killed during the evacuation of Kabul in 2021 and film a political ad.

Let's not ignore the bullshit framing here. President Biden got us out of Afghanistan. We were already on the road there via Trump's own timetable. 

There was pressure not to leave. It was a major accomplishment, getting us out of a quagmire. Likewise, the idea no soldier was lost under his watch is false. It's a lie. The ad is based on bullshit.

Okay. Another problem is that there are rules against making military cemeteries -- hallowed ground in the minds of many people, especially veterans and the families of the dead -- into a photo op. 

A cemetery employee tried to prevent the Trump campaign from filming and photographing. The campaign was warned ahead of the event of the rules. 

The Washington Post cited multiple previous episodes where Trump politicized the military in ways actual military personnel found disgusting. 

The campaign staff verbally abused and pushed the official aside. The official, fearing retaliation, did not press charges. The Trump campaign denied any wrongdoing, taking potshots at the official. She had a “mental health episode” was “despicable” and a “disgrace,” and not deserving to have her job.

Again, this is not some one-off. As Politico noted:

The incident is the latest in a string of controversies involving Trump and veterans. On Aug. 15, he said the civilian President Medal of Freedom was “much better” than the military’s Medal of Honor because recipients of the military’s highest award for valor are “either in very bad shape because they’ve been hit so many times by bullets or they’re dead.”

One family gave Trump permission to film and take photographs. However, it is not like there is only one grave. Therefore, it is unsurprising another family was not happy. Anyway, permission doesn't overrule the rules in place.

The Army is not happy about the whole affair, releasing a rare criticism:

This incident was unfortunate, and it is also unfortunate that the ANC employee and her professionalism has been unfairly attacked. ANC is a national shrine to the honored dead of the Armed Forces, and its dedicated staff will continue to ensure public ceremonies are conducted with the dignity and respect the nation’s fallen deserve.

We are dealing with disgraceful lying bullies. Republicans as a whole are endorsing them. Voters should remember. 

Loran Kenstley Cole Execution

Cole, 57, was convicted in the 1994 murder of a Florida State University student who went to the Ocala National Forest to camp with his sister. 

Cole would be the first inmate executed in Florida since October. 

We have the usual problems with executing someone after thirty years:

These lengthy delays create two special constitutional difficulties. First, a lengthy delay in and of itself is especially cruel because it subjects death row inmates to decades of especially severe, dehumanizing conditions of confinement. Second, lengthy delay undermines the death penalty’s penological rationale.   

Nonetheless, Justice Breyer (joined by Ginsburg and also flagged in the past by Stevens) was in dissent. Cole's lawyers also cite his abuse in a teenage reform school. Six other alumni later were sentenced to death. His own story is not pretty: 

Cole said he was raped by a guard, beaten at least twice a week and had both of his legs broken by staff after trying to escape during his six-month stint at Dozier, court documents dating back more than a decade said.

Others will focus on his crimes here:

Cole and another man, William Paul, joined the brother and sister at their campsite. After they decided to walk to a pond, Cole knocked Edwards’ sister to the ground and ultimately handcuffed her, the records said. Paul took the sister up a trail, and John Edwards died from a slashed throat and blows to the head that fractured his skull, according to the court records. Edwards’ sister was sexually assaulted and was tied to two trees the next morning before freeing herself.

I provided three articles that discuss the case. The description is from the first. Paul pled no contest and was sentenced to life in prison. LWOP has its own issues but the plea bargain probably explains why.

He had a longshot/hopeless final appeal arguing his  Parkinson’s disease would make the lethal injection cruel and unusual punishment. The conservatives have refused in multiple opinions to find any problems with lethal injection. 

Not surprisingly, they didn't start now, and the liberals silently went along. No comment. 

Again, I think it is appropriate for the justices to supply a brief statement of why the Supreme Court -- including judges wary about the death penalty and lethal injection specifically -- opened the path to the taking of human life by the government. 

He committed a horrible crime and served a long time in prison. I do not think choosing to execute him instead of many other people who committed heinous murders [often more than one] after thirty years is a useful exercise of public policy. 

Florida thought otherwise. 

Democratic Platform 

Meanwhile, for some reason, the Democrats removed an anti-capital punishment plank from its platform. Since Kamala Harris voiced her opposition in the past and 65% of Democrats oppose capital punishment, it would seem to be a curious move. 

President Biden has voiced his own opposition to the death penalty. He said that he supported Congress repealing the death penalty. Merrick Garland had the Justice Department investigate it (seems to be still pending). The Justice Department did seek the death penalty in at least one multiple murder case.

Time is running out for the Biden Administration to do something. It is the sort of thing you do at the last minute. For instance, he can commute the sentences of those on federal death row. We might not know what he plans to do until January. We shall see.

The reporting notes that the death penalty is not the only place where the platform has a more restrained criminal justice reform tenor. Some of this might be part of Kamala Harris's "prosecutor" past but the platform was crafted before she was the nominee. 

Crime policy, as compared to border policy, is not really a major concern in this election. The shift -- largely taking place out of public view since who really cares above and beyond other stuff -- just appears to me dubious. 

Anyway, what Biden does regarding the death penalty is something to keep an eye on. I know we all will have a lot of other stuff on our minds but still. 

The Best Man (or Person)

I saw a discussion of the 1964 film about the selection of the president, The Best Man, starring Henry Fonda (principled egghead) and Cliff Robertson (McCarthy type). Do not know if I ever saw it though vaguely recall watching at least a few minutes. 

Penny Singleton, better known as Blondie and the voice of Jane Jetson, reportedly was in it but the footage was cut. The two main candidates want the endorsement of a former president, a practical sort who argues there are no principles, just how you play the game. He notes at one point:

We have had some bad old customs in this country. And one of them was that a Jew or a Negro or a Catholic, couldn't get to be President. Well, a Catholic can now be elected President. And someday we're going to have a Jewish President and we're going to have Negro President. Then, when all the minorities have been heard from, we're going to do something for the downtrodden majority of this country - and I mean the ladies!

Well, we have a Jewish Second Gentlemen, and hopefully -- now that we already had an African American president -- we will have a woman. 

If so, if we somehow manage to retain the Senate, Chuck Schumer says there is a good chance the filibuster will be broken to pass some major legislation, including related to abortion and voting rights. It might be time for democracy to win.

The old crusty ex-president doesn't think Henry Fonda has guts. He doesn't like Cliff Robertson but is willing to endorse him. However,  Robertson is not a good judge of character, including not even catching it when the ex-president said he's dying. 

At the end of the day, Henry decides to step down from the campaign, throwing his support to some nonentity. He argues that nonentities are often good choices to win (true enough) and that they can step up to the responsibilities of the job (more unclear).

Gore Vidal wrote the play that the film was based on. The film has a mixture of realpolitik and old-fashioned principles. It's well-acted and feels realistic. The opening montage includes images of all of the presidents from Washington to LBJ.  

How we select presidents changed. OTOH, there still is room for some drama and surprise. Would a film based on what happened this time be seen as unrealistic? You have some of the cliches in there.

The film ends with the choice of the nominee. We do not know if the candidate will win. Let's hope the "best person" will win in November.  

Arkansas Again

While Gov. Sarah Huckabee Sanders takes credit for the 4-3 ruling that kept an abortion rights ballot measure away from voters, things are not going well.

The Washington Post — showing that MSM is not only trolling us with pro-Trump fact checks — had a good (if depressing) report:

This state calls itself the ‘most pro-life.’ But moms there keep dying.

The problem of maternal health is so bad that Gov. Sanders knew she had to act:

This spring, facing pressure from business leaders and the medical community, Republican Gov. Sarah Huckabee Sanders launched an initiative to address maternal health, an issue that she acknowledged “we’ve ignored for far too long.” Yet she declined to support extending Medicaid postpartum coverage to a year from 60 days, saying the state’s existing insurance system was enough. Arkansas will soon be one of only two states not adopting such coverage.

Banning nearly all abortions doesn't quite do it. One glaring issue is teenagers:

Though teen birth rates are falling nationally, federal data shows the statistic for Arkansas is almost twice the U.S. average. Lack of access to contraception is a major factor; the rate at which teens in Arkansas have unprotected sex is 75 percent higher, according to a report from the nonprofit Arkansas Advocates for Children and Families.

The Dobbs ruling that overturned national abortion rights arose out of Mississippi, which has such bad social welfare stats that it is something of a sick joke. The briefing underlined who would be particularly harmed by an abortion ban.

In theory, you can ban abortion and address other problems. In reality, states with strict abortion bans are not likely to be good places for women and families overall.

Abortion providers do not just provide abortions. The lack of abortion rights is not just about “federalism” (sorry James David Vance) or “pro-life” ends.

North Carolina, helped by a traitor former Democrat, tried somewhat:

The bill also contains a number of provisions cracking down on where and how women can get abortions, and how many steps they must take prior to making the decision — including multiple in-person meetings with a doctor. There's also more state funding for adoption services, maternal health programs and religious charities that run antiabortion clinics called crisis pregnancy centers.

The state has a Democratic governor and a shot in hell for a Harris win so it is not too surprising it did not go the totally extreme route. It drew the line at twelve weeks. You know, slavery-lite. 

State funding of religious charities and crisis pregnancy scams also is not too liberal. But, yes, they could be said “not to be Arkansas.”

At the end of the day, if you are pro-life (not “pro-life with baggage”), Rachel Held Evans (RIP) was right. You should vote blue.

Abortion bans will not do much to reduce abortion rates and the people behind them have too much negative baggage.

Two Books and A Film

Tamora Pierce explains in an epilogue written over thirty years later how the young adult medieval fantasy, Alanna: The First Adventure came about. Like many young adult books, adults can also enjoy it. 

She originally wrote it for adults as an over seven-hundred page book. It eventually was broken up into a four-book series. The story concerns a girl twin who takes the place of her brother to train as a knight. 

She eventually reveals herself to a few people (only one fellow trainee and that involuntarily), the first two a friend and his mother when she gets her period. She avoids swimming. but it's hard to imagine someone could avoid revealing themselves in such an environment. Oh well. Suspension of belief.

I re-watched Operation Petticoat, the Cary Grant / Tony Curtis WWII comedy with some other familiar faces in early roles. One person hard to recognize is "Mrs. Cunningham" from Happy Days, there one of the nurses (not one of the main three). Enjoyable.

Michele Moran writes historical fiction. She handles Maria Von Trapp this time, who here is upset about the changes found in the upcoming musical, The Sound of Music. 

Her discussion with a female assistant provides a framing device for the real story of her life, which is significantly the same as the musical. The main differences are that she marries the Captain in the 1920s and they leave Austria simply by pretending to go on vacation to Italy. They do -- as they later find out -- take the last train out.  

The book in an easy reading way provides an engaging account of Maria's life. The "modern girl" (1950s style) assistant has somewhat more minor relationship problems as she starts her career as a writer. I liked the book.

Maria also is annoyed that the musical -- based on a German film -- portrays her husband as a disciplinarian type. They wanted a transformation. The book also shows the dark side of her life and drive for success, which later turns her children against her. This part is not emphasized though. 

A case where truth is more interesting than fiction. Oh, the film also creates the oldest daughter, and by the time they leave Austria, she has two children of her own. One would come after they came to America. He is the one still alive.

RIP Phil Donahue

Ophrah Winfrey's appearance at the Democratic Convention brings to mind the recent death of Phil Donahue. He was a pioneer in daytime talk shows. 

I was not a viewer, including of his MSNBC show (he was allegedly canceled for his opposition to the Iraq War). People who dismiss him as a veteran of "low-brow" entertainment might be missing something.

President Biden's statement after his death noted:

He broadcast the power of personal stories in living rooms across the country, interviewing everyone from our greatest stars to our forgotten neighbors. Insatiably curious and accepting, Phil saw every guest as worthy of interest and worked to build understanding, helping us see each other not as enemies, but as fellow Americans.

Donahue, who was a neighbor of Erma Bombeck (who wrote about suburban home life as well as being a supporter of the ERA), got his start in the Midwest. The first guest on his Dayton talk show was Madalyn Murray O'Hair, the controversial atheist. 

He soon started his policy of directly engaging with the studio audience. Donahue focused on marriage, illness, sexuality, death, and other problems "ordinary" people could discuss. He was not just a pursuer of "shock" material. OTOH:

"Controversy is not a dirty word," he says. "controversy means it's important and it's something that people disagree on." He once said, "If they found Hitler, I'd be the first in line to interview him."

He married his high school sweetheart and had five children (four are still alive). After 17 years of marriage, his wife left him. He met the actress Marlo Thomas while she was a guest. It was apparently love at first sight. They were married for forty-four years. That's rather impressive.

Andy Humm, of Gay USA, wrote about Donahue's impressive GLBTQ activism:

He first had a gay man as his guest on his show in 1968 — before Stonewall — but LGBTQ people were frequent guests over the decades. Having gay people on, he said, taught him about homophobia. 

He told Oprah Winfrey in 2002, “There’s a reason for the closet. As the years went by after that show, I got involved in gay politics. And through my activism, I began to realize what it must be like to be born, to live, and to die in the closet. I can’t even imagine it.”

Donahue talked about AIDS on his show before most people were aware of the disease. He had people on to discuss same-sex marriage in the early 1990s. 

Donahue was Catholic but was a passionate supporter of GLBTQ issues, including marching for their rights. Insiders greatly respected him. Humm's obituary is entitled "TV talk show giant Phil Donahue, peerless ally to LGBTQ community, dies at 88."

Humm discusses Phil meeting his future second wife:

At the end of that show, Donahue grasped her hand and said, “You are fascinating.” Then Thomas grasped his hand and said, “You are wonderful. You are loving and generous and you like women and it’s a pleasure. And whoever is the woman in your life is very lucky!”

Oprah Winfrey has received some pushback for supporting sketchy individuals like "Dr. Oz." Her presence at the Democratic Convention was notable since she was generally apolitical. 

Phil Donahue in some ways perhaps has a more impressive legacy. Again, I was not someone who watches their shows.  (This is not meant to be a dig.)  I was generally aware of his liberal values, including his opposition to the Iraq War. 

He has been away from television for two decades. Many younger people might not really know who he is. He is worth remembering, both for his place in television history, and his overall life's work. 

ETA: A founder of the Freedom From Religion Foundation and an abortion rights activist had a less positive memory of her appearance on the show.  

Item: Democracy Does Not Exist in Arkansas

Of the 11 states where organizers have submitted petitions to qualify ballot measures aimed at protecting or expanding abortion rights this year, Arkansas' is the only effort that has so far been officially rejected.

(Nebraska's measure is pending.) Erik Loomis posted a blog post reporting on the Arkansas Supreme Court upholding a decision to block a proposed amendment to extend abortion access.

The court ruled 4-3 that the secretary of state reasonably blocked it for not following the rules. Loomis notes he has a "correspondent" who says the "rules" are Calvinball in nature. The closely split opinion does suggest the reasoning is iffy.  

Arkansas has very restrictive abortion laws. The backers receive some pushback for choosing a twenty-week ban:

The Arkansas ballot proposal lacked support from national abortion rights groups such as Planned Parenthood because it would still have allowed abortion to be banned 20 weeks into pregnancy. 

They also showed some bravery:

It faced heavy opposition from abortion opponents in the state. One of the groups, the Family Council Action Committee, published the names of people gathering signatures for the abortion measure and had vowed to challenge the proposed constitutional amendment in court if it made the ballot.

One blog comment noted the voters have agency. The person criticized the headline since the voters chose anti-choice people in statewide elections. Is this not "democracy" in action?  

Two things. First, the state allows a form of direct democracy. If the process was improperly blocked, a case can be made that "democracy does not exist."

Second, in a different sense, democracy is not just about voting for governors and other representatives. It does not only include direct democracy options such as ballot measures and recall efforts. 

Democracy involves basic freedoms such as those found in the First Amendment. These are necessary for a functioning democracy. Civil rights and liberties are part of democracy, including abortion rights. 

I do not think democracy does not exist at all in Arkansas. Nonetheless, it is severely lacking. "Thanks" Donald Trump and the Republican Party. 

It is appreciated that most states where the people want a referendum on abortion rights -- including Florida (60% requirement) -- will have one. We should not have to rely on such measures. 

We should never accept Dobbs as something to take for granted. It continues to be an unjust ruling that was handled in a corrupt way. The people have struck back but we still have a ways to go democracy-wise. 

ETA: I do think the ruling is suspicious and a conservative state's supreme court split 4-3 helps confirm that. Not knowing the intricacies of state ballot law, however, I will leave a bit of doubt on bare state law grounds as compared to the shitty nature of the overall policy choices.  

Mets Season On the Line?

The Mets had a somewhat mediocre run during an "easy" part of their schedule. Now, they are in the midst of ten games against the Orioles, Padres, and Diamondbacks. They started the run down 1.5 games when they easily could have been up by that much.

And, the Phils did not help them much when they played the Braves. The Mets did win two of three (both in the ninth inning) against the Orioles and started a four-game series versus the Padres on a good foot. It did take four innings of pen. 

They had a bad game last night. First of all, facing someone who owned them for a few games now (including in the 2022 playoffs), they had two base runners. Second, before being knocked out by getting his hand hit by the ball, Blackburn did not have a good night. This led to a lot of booing. 

So it goes with Mets Twitter. Still, let us remember his role was to be an extra starter, the plan being to go with a six-man rotation when Senga (the ace) came back. Senga was hurt in the first game back and is now out for the year. 

Blackburn did fine in such a role, Other than a game against his old team, he had three good games (if against not great teams). This included giving them that essential length -- six innings each time.

Yesterday was a game you expected to lose. The Padres are very good. The starter owns the Mets. You aren't going to sweep a four-game series. 

You honestly would settle for a split though given the spot the Mets put themselves that would be problematic. The Nats winning one game versus the Braves this weekend would be about as much as you expected. The Mets are 2.5 games back now. 

(The Phils and Nats -- in the 10th -- again did not do the Mets any favors. But, you have to win your own battles. The mediocrity that is MLB -- other than a few teams -- cannot be relied upon to help.) 

Yes, it would have been nice if Blackburn didn't set up the team to lose in two innings and then get hurt in the third. The "B" team pen -- three pitchers -- basically did their job, only giving up a couple runs. There was no offense. The game was lost either way.

Yes, this way was more embarrassing but a loss is a loss. You have to be philosophical about these things. And, no, I am not always consistent about that.

Still, an honest, half-way informed Mets fan figured yesterday was a long shot. Today, with currently reliable David Peterson and your "A" pen rested, is a must win. Then, you somehow hope to steal Sunday's game, though Mr. Q. of late has not been good. 

ETA: The starters did well in the other two games. The offense did well in one. Not enough offense to avoid the bullpen blowing the game on Sunday. 

2.5 back. 

Under the Tuscan Sun

I watched Diane Lane in Paris Can Wait and decided to re-watch Under the Tuscan Sun. Checking, I watched it in the theater and on DVD. This was around twenty years ago so it is not surprising that it slipped my mind. 

The film is loosely based on fact. Diane Lane and a lot of scenery help make the movie enjoyable.

Audrey Wells wrote, directed, and produced the film. Wells also wrote and produced The Truth About Cats & Dogs, which I enjoyed. She has an impressive resume, passing away at age 58 in 2018. 

Wells also gave a charming (love her voice) commentary, which I listened to while watching the movie with subtitles. She does not talk so much that you miss much of the film except the dialogue at the very beginning. Her obit notes:

She also wrote and directed “Under the Tuscan Sun,” the 2003 movie based on the book by Frances Mayes, about a recently divorced woman who starts over in Italy. Even while making a seemingly feel-good movie, Ms. Wells infused it with her values, Ms. Jacobson said.

She wrote The Hate U Give, based on a critically acclaimed young adult novel about a black teenager. Wells is white so perhaps is a bit surprising choice. Nonetheless, her script was well-praised. She died a day before the film was released.  

I enjoyed the film once again. The mixture of commentary and movie went along very well. The film, as she basically granted, is something of a fantasy. But, we care about the characters, and how can Tuscany and Italy as a whole not impress? 

The DVD has a commentary track, a few deleted scenes, and a short "making of" segment. 

SCOTUS Watch: Voting and Reform

Steve Vladeck (who wrote a book on it) has noted that the justices have a much busier than usual [not clear how it compares with last year; that is when the uptick truly began] "shadow docket" of note this summer. 

The shadow docket is a fancy name for appeals, particularly in notable cases (summer order list disposes of insignificant ones), which require some resolution. Will Baude wrote of it in a well-known article in 2015. Baude noted that the shadow docket was "a range of orders and summary decisions that defy its normal procedural regularity."

For instance, the Supreme Court handled a shadow docket (often called the "emergency docket," to suggest there is the need for quick resolution) case last week involving a challenge to Biden's new regulations of trans students. The justices split 5-4, agreeing to hold up many regulations in around half the states, though they agreed on a minor matter. 

The shadow docket might be an area that Congress and the president can think about when addressing court reform. Chris Geidner suggested Vice President Kamala Harris address it in her convention speech. As Vladeck notes, the Supreme Court could do more to restrain lower court action that makes the shadow docket such a potential place for action. They do not. 

She did not though she did reference abortion, which is definitely related. She has supported Biden's three reform proposals. Other than ethics reform, they are long shots. But the tenor of his remarks matters too. Biden made clear the stakes when he explained what he planned to focus on in his final months:

And I’m going to call for Supreme Court reform because this is critical to our democracy — Supreme Court reform.

The Vice President did discuss voting, including supporting voting rights legislation. The Supreme Court in Shelby County v. Holder held that the preclearance mechanism in the Voting Rights Act of 1965 was unconstitutional because it was out of date. Congress could update it but that would require major legislation and breaking the filibuster. 

The inability to block new voting limits in "covered" jurisdictions has led to many more restrictions. The Supreme Court's latest shadow docket opinion addressed proof of citizenship laws in Arizona, parts of which are covered by the Voting Rights Act. Rick Hasen notes such laws pointlessly threaten the voting rights of thousands of people. 

The upshot is that people who have registered with the state-only form are going to have to either provide documentary proof of citizenship if they want to vote in all elections in Arizona in the fall, or they will be able to register using the federal form without documentary proof of citizenship only for President, Senate, and Congressional races.

Hasen parses the opinion or rather order (see also, Ian Millhiser and Amy Howe). The order simply notes what was decided and who voted for what path. 

No one actually explained their decision-making. Federal judges, including David Tatel in his latest book (Vision), repeatedly tell us that judges are different. They explain. Not always.

(Not explaining helps cover up many sins as shown by this discussion that covers multiple problems with the result. Those who keep track of these things, for instance, flagged the "Purcell Principle," which is more of a guideline, as they say.)  

Like Caesar's Gaul, the Supreme Court split in three ways. Justice Barrett (who from time to time cautions restraint regarding the shadow docket) joined the liberals. They would not stay in a lower court that held up the restrictions. Thomas, Alito, and Gorsuch would have allowed the restrictions to go into place. 

A majority allowed one restriction to go into place. Millhiser, the most vocal liberal of the bunch, explains the result could have been much worse.  Roberts and Kavanaugh did not publicly vote. 

Nonetheless, it takes five votes to obtain a majority. They must have joined with the three conservatives to allow the one restriction to go into place as the litigation continues. Meanwhile, at least one justice had to join with the four to hold up the rest. Need not be both.  

The result allows voters to avoid the restriction in federal elections by using a federal form. Arizona is a swing state with an important Senate seat up for a vote in November. State elections matter (including an abortion referendum) but the stakes can be higher on the federal side.  

Ultimately, this is merely one step in a longer journey. The litigation continues. The biggest game here is the possibility of federal voting rights reform. The key there is winning a trifecta in the 2024 elections. The courts also play an important role as seen by this very decision.  

The people involved in selecting judges and overseeing federal voting rights litigation are yet another thing to factor in. We see the importance of each branch, executive, legislative, and judicial. 

Court reform again is on the docket in November. Kamala Harris has shown her distrust of the Supreme Court. We shall see how she handles things now that she is a presidential candidate. 

Some More Democratic Convention Thoughts

It is nice to see The Chicks (they dropped "Dixie" around the time Gaslighter dropped in 2020 -- they also sang at that convention). 

Al Sharpton also introduced some members of the "Central Park Five," including the recently elected city councilman from New York. Trump paid for ads promoting sentencing to death. He never reneged, even though evidence later arose to prove they were guilty of the heinous sexual attack involved.

Former Defense Secretary Leon Panetta also spoke at the 2024 Democratic National Convention. He provided a good endorsement of Vice President Kamala Harris's foreign policy chops. Panetta also avoided any possible Hatch Act violations. 

Cheryl Rofer at that link also suggests why a Palestinian voice was not allowed a speaking slot to talk about Gaza. Not only were there concerns about "unity" but also Harris wanted to be the sole voice on such a foreign policy questions. 

She supported Israel's right to defend itself while recognizing the "heartbreaking" suffering in Gaza. And, the rights of the Palestinian people to self-govern:

President Biden and I are working to end this war, such that Israel is secure, the hostages are released, the suffering in Gaza ends, and the Palestinian people can realize their right to dignity, security, freedom, and self-determination.

Second, if one side was given a voice, the other would want a speaker as well (quoting Rofer):

If they were, a pro-Israeli group would have had to have been brought in as well, and anything either group said would muddle the waters for the negotiation.

I was sympathetic with AOC and others who supported allowing a Palestinian to speak. What would be the difficulty with one slot among many?

The article provides a balanced account, including the different ways the Democrats gave the Uncommitted side a voice: 

Ahead of the convention, campaign manager Julie Chavez Rodriguez and senior staffers of the Democratic National Committee met with members of the Uncommitted National Movement. The campaign gave uncommitted delegates extra passes for staff and friends to attend the convention and provided space to hold a news conference.

They provided Palestinians with space to hold a panel Monday, something that had not occurred in previous conventions. At the panel, Tanya Haj-Hassan, a pediatric surgeon who has worked in Gaza during the war, spoke of treating children who lost their families. Hala Hijazi, a Democratic Party organizer, said she has lost dozens of family members in Gaza, including two killed last week."

Nonetheless, not allowing a speaker was a sore point. I am not totally convinced that the choice was appropriate. However, on balance, the arguments made have validity.

Gov. Gretchen Whitmer had a good appearance, looking great, having a strong mid-western accent, and using some expressive touches:

There were some Republicans at the 2020 Democratic Convention, , including former governor and Bush43 Cabinet member Christine Todd Whitman. A former Staten Island congresswoman (I did a report on her once), Susan Molinari, also popped up. 

The Republicans continued to show up in 2024, including a recent lieutenant governor of Georgia. Stephanie Grisham, a Trump press secretary, and Olivia Troye, a Mike Pence official also spoke.

Since Kamala Harris has a more partisan Democratic feel, it is even more notable that we have such crossover. The Georgia politician is quite important since polling still has Trump was a small lead there, at least some recent polling before the convention.

The convention, which had a D.J. for the roll call, continued it fun moments. A couple of cute as a button Kamala Harris relatives helping to tell us how her name is pronounced included:

Of course, the finale -- after there was no "special guest" -- was Vice President Harris giving her speech. Yes, no court reform talk, but overall it was a good speech. And, it was expertly told. 

She introduced herself, provided basic policy proposals, and the threat of Trump:

In many ways, Donald Trump is an unserious man.(Laughter.) But the consequences — but the consequences of putting Donald Trump back in the White House are extremely serious. 

We should not only consider the "chaos and calamity" of his term. There was what happened after he lost the election. On top of that, think of his civil wrongs: 

And now, for an entirely different set of crimes, he was found guilty of fraud by a jury of everyday Americans — (applause) — and separately — and separately found liable for committing sexual abuse.

Then, we have to worry what he will do later -- including with the immunity provided by the Supreme Court -- with Project 2025, including the ability to ban medication abortion with or without further legislation:

Simply put, they are out of their minds.

I would say the same thing about people who want to vote for Donald Trump (who tried to get anyone who would have him on listen to him whine and ramble while Harris gave her speech) again. Let's vote for another way:

You know, our opponents in this race are out there every day denigrating America, talking about how terrible everything is.  Well, my mother had another lesson she used to teach: Never let anyone tell you who you are; you show them who you are.  (Applause.)

America, let us show each other and the world who we are and what we stand for: freedom, opportunity, compassion, dignity, fairness, and endless possibilities.

Early voting will begin in around a month. Democracy and simple sanity is on the ballot. Down the ballot. To paraphrase Michelle Obama, enough of this foolishness. We know the only sane path. Let's be sane enough in November!

==

Two addendums. 

First, a few people did not like Bill Clinton showing up. They argued he was a sexual predator. I am sympathetic to that viewpoint, especially when it comes from people who had direct experience. 

Second, a few people were not big fans of Republicans who showed up as allies. They surely did not want to give them any role in a Harris Administration. 

At some point, you have to know the value of welcoming support from people from the enemy camp. And, unlike choosing only Republicans as Defense Secretary or head of the FBI, it is just petty to refuse to throw them a bone. 

There is rightful concern the "big boy" roles are given to "Republican daddies." That is not the issue here. Is Secretary of Transportation (Buttigieg might move into bigger things) really a big deal? 

Meanwhile, Robert Kennedy Jr. suspended his campaign and endorsed Trump. Next level in grifting, shaming his family name just one level more. His attempts at "ratfucking" did run into a minor wall:

Kennedy took steps to withdraw his candidacy in at least two states late this week, Arizona and Pennsylvania, but in the battlegrounds of Michigan, Nevada and Wisconsin, election officials said it’s too late for him to take his name off the ballot even if he wants to do so.

And, overall, the value of such an unreliable "weird" endorsement remains to be seen.