A Decade Slips Away

The political winds of this decade started fairly well and then dropped off. 2016 was a travesty. 2018 (including in NY) brought things more in the right direction. Impeachment, flawed as it might be, was a key moment in 2019. Personally, the decade was rather mixed too, but new decade, so you know ... Happy New Years. (Will skip the latest Biden stuff.)

Articles of Impeachment Against Trump

ETA: After the Republicans wasted our time all day, Rep. Nadler after 11PM pushed the actual vote (much to the Republicans' ire -- no complaints about "midnight impeachments") to the morning.  A quick session made it official and it was by a partisan vote (Rep. Ted Lieu is out sick) voted out.   

Meanwhile, litigation continues, including for emoluments and this article to me hits a basic point, including this bit: "He called them phony emoluments clauses,” [Judge] King shouted. “Two clauses of the Constitution written in 1787.”  The Trump lawyer (who I engaged with online and he was an asshole, not just using the typical conservative talking points but in a snotty/sarcastic way) wanted to handwave this as an off the cuff statement.  No, it's not.  It's typical stuff for him. And, why he should be impeached.  And, if the conservative thinks this should not be in the courts, fine.  Impeachment is not. Limit him SOMEHOW.

One more thing. We now have Sen. McConnell openly saying on Fox News that he will follow the lead of the Administration during the trial.  This is not surprising but we cannot simply sigh about it.  He's breaking his oath, the Senate not just a subsidiary of the executive department.  Every f-ing Republican senator that goes along are as bad.  Enough with this shit!

There are the counts (I'd toss in something about the media) that he "deserves" and the two that the House Judiciary actually crafted.  The articles (a short nine pages) are abuse of power related to Ukraine (key criteria: involvement of candidate in U.S. election, holding up of funds authorized by Congress, personal over needs of nation and enlisting of foreign power against our own country) and obstruction of Congress (blanket obstruction on said investigation). The House Intelligence Committee provided fact witnesses to cover the first while the second was addressed in to me somewhat redundant (at least the second day, covering the first count mostly) House Judiciary portion (law professors).

[Word of the day: contumacy, which is a stubborn refusal to obey or comply with authority, especially a court order or summons. As to complaints some Democrats were for impeachment early -- damn Trump for being a criminal since the early 1970s -- there's this bit of Republican history regarding Hillary Clinton.  And, for this general aside, RIP to a great character actor, generally a blessing, who I first saw as "Clayton" on Benson.]

Reports are that people like Rep. Nadler (he and members of his committee were ahead of the curve here from the Mueller days) wanted an obstruction of justice count related to the Mueller investigation. The compromise, which is important to note, is that both cases reference previous actions consistent to these two. I would have specifically spelled that out (maybe as a whereas or in its own count). Three counts for one thing might lead some members a way to "compromise" more themselves by splitting the baby.  Still, that important final kicker provides a means to bring up the Mueller Report and anything so related. It also to me is a very important flag (as Rep. Schiff et. al. noted) on why it was necessary.  It is not a stand alone thing.  The whole thing is sort of synecdoche, a symbol of a wider whole.

The committee is now debating them (so to speak), starting last night with statements from each member. The general trend (including one who is a gun control activist whose son was murdered) was to provide personal accounts (some quite touching) about why they decided to run for public office and argue they weren't there to impeach Trump. Fine with the basic strategy more or less, but do think 2018 was about checking Trump. This was in response to the general Republican tendency to make it some sort of partisan witch hunt about not liking Trump when not whining (that is the general tone) about alleged process problems.

It's hard not to be depressed, cynical and angry about the overall process here.  First, Trump is so clearly unfit and guilty of a range of things that should fit the constitutional grounds for removal.  I think Democrats after the Mueller Report was dropped should have set up a sort of overall impeachment inquiry, delegating things to the relevant committees, with Judiciary serving as the overall clearinghouse.  As necessary, things could be accelerated, just as many (including Never Trump types like Orin Kerr) thought that the Ukraine Extortion Racket matter warranted.  Still think that would have been a good approach and more would have been accomplished if that was done in appropriate fashion.

So, the whole thing has a feel of not enough.  But, you take what you can get there (so, e.g., Democrats are challenging the Trump obstruction in the courts, even if people raise the fantasy of arresting people and putting them in some sort of fictional House jail). The ultimate step here, after Trump was caught again interfering with an election, is impeachment. And, it is felt to be time sensitive since an election is coming up, particularly a primary/caucus that starts in February.  So, waiting months or just as likely the rest of his term (one wants to rest with the word "single"), and just to continue to investigate to me is a dubious idea. The investigations should still continue and maybe another impeachment vote if something turns up so blatant to warrant it (though we should act now as if this is it).

Then, there is the reality that Trump will be acquitted in the trial. I find no need to repeatedly say this as a stated fact in part since it helps to make everyone cynical and take it ("one rather it not be ..") as a given and feel resigned about Trump blithely doing bad things without limitations. It also seems worthwhile to continue to say that you actually expect Republicans to have some shame here as you do not simply assume as a given that a child will just continue to be bad. You expect it, but you at least in a token fashion assume facially that the child will be good.

Still, yes, the likely result is an acquittal and the best we can hope for (and this shouldn't be taken for granted) that every Democrat (except maybe the guy from West Virginia) will the right way and maybe one or more Republicans (Romney?) might actually for to convict.  Even not voting there might be something.  Also, we hope the whole trial will not simply be a sham, maybe not even being a trial at all but simply a vote.  The reality here is that Mitch McConnell heads the Senate and Republicans are not showing any sign of a spine even to the degree of admitting Trump did anything wrong.  And, hopefully this will cause some pain.

Impeachment is necessary as an answer by the people's House, Trump so much of a repeat offender that even Democrats wary of impeachment feel a need to vote for it. One party is acting like it is okay and this is depressing as a matter of public well being.  But, you need to keep on fighting and support those who are fighting the good fight. Like some of the great members of the Judiciary and Intelligence committees that balance some of the clowns on the other side.  It's a long haul process. No Biden!

"An olive branch spurned" [Really now?]

Since the subject blog post (like most now at that blog) does not allow comments and posting at Twitter (I'm taking off four days for the holiday weekend anyways; I started taking off weekends) would be hard to full address the point, I provided a long email. The reply basically covers the bases so here it is:

I saw your "An Olive Branch Spurned" post at Balkinization and as a regular reader of that blog, Twitter participant and "fellow leftist" who is concerned with religious liberty, feel obligated to respond.

A basic concern for me is that that so-called olive branch was at best one with thorns. The claim that their concerns were met with "silence" is bogus.  A basic problem is the framing is suspect.  A reply in the thread (and it isn't the only one) is on point by a woman whose profile says she is a Mennonite and a mother:

This is disingenuous. Religious liberty is defined differently even among Christians. As a progressive Christian, I want religious liberty, but find Trump’s ideology to be anathema to any understanding of religion OR liberty.

As to the fear he is demanding harm to gay people, well, when he responds like this:

"Fine, LGBT rights are your thing; but don't act like we're worried about nothing."

Some olive branch. It's "a thing" and the basic implication (fair inference at least) is that somehow this "thing" conflicts with "religious liberty."  And, no, we are not saying you are worried about "nothing."   We are saying your framing is off and ultimately what you are worried about is what you have no right to remove.  This is repeatedly noted.

In your post, you note Hillary Clinton lost evangelical voters and that in general the gay rights/religion issue was a disaster for Democrats.  It is hard to know how much of a "disaster" it has been really, especially after the Democrats won the House back in 2018.  Obama, before 2012, strongly supported gay rights and still won the 2012 elections.  Did Mitt Romney make that much of an issue in 2012? [How much did Obama do to reach out to evangelicals?  I don't recall much myself.]

I really don't want to re-litigate yet again Clinton's loss, though I question that really decided it, but putting her aside, how much has Democrats as a whole loss on this issue?   It's perfectly fine to say Democrats should reach out to all voters, including evangelicals (who include a liberal minority), but that thread doesn't tell me much about that. They have repeatedly respected all believers.  It's okay to point out some cases where they can do more.  But, a "put up or shut up" type challenge that belittled GLBT rights led to many negative responses says little to that.  A lot of fault perhaps goes to the challenger.

Anyway, I'm fine with respecting religious liberty and have all my life.  A request is made for some sort of "deal."   The deal repeatedly appears to be stacked.  For years, see U.S. v. Lee, there was a basic rule that once you enter the commercial field you had to serve all comers and personal religious belief could not interfere. 

Now, that no longer is quite supposed to be the rule.   The "real" concern -- as cited in that very thread -- is supposed to be forcing nuns to distribute contraceptives.  My "deal" is that they need not but if they hire a cleaning woman, yes, that cleaning woman has a basic set of benefits including health care, which in part is used to carry out her religious liberty.   The problems with the other side is repeatedly referenced by trading sexual orientation with race.   This was brought up in the thread too.

If LGBT rights are not called a "thing" etc., there is not "silence" that there are some hard cases here, but ultimately on the level of Trump, yes, that is a trivial thing to support Trump over, especially since (again no "silence") he threatens religious liberty himself.  Yes, part of this is that there is a bit of a strawman on the claims of religious liberty.  To the degree there is some burden, yes -- once upon a time mixing the races for a significant minority was held out as a large burden too.  It is admitted that some held this minority in some disdain though even today they still have religious liberty. 

Finally, I think your argument that Trump's support among conservative Christians is "inherently fragile" a bit naive.  Push comes to shove, the concern for many is not "religious liberty."   I'm not telling you something that you don't know that religious liberty very well leads to results they strongly oppose.  Abortion for some is an inherently moral choice that their religious deems proper in certain cases.  A limited number of conservative Christians accept that but even they are still likely to vote for conservatives though Trump is so extremely bad that might help marginally.

===

There is a certain "concern trolling" going on here. The tweet thread simply is not a good way to judge the situation.  I disagree with the author on certain details on lines to be drawn regarding religious accommodations etc., but here talk about the specific post. There is some concern to be made on this issue, partially because people talk past each other. To the degree that is so, we should pick our spots and do so carefully.

I just received a reply that agrees the terms of the deal matters but (citing one group) some suggest it is awful to even talk to "these dishonest bigots."  But, that doesn't even work since repeatedly people "talk" at least to the degree of rejecting the premises.  The tweet was dishonest.  And, the final remark that there is a lot to be covered is true as just noted. Using that tweet and tweet thread, however, is a dubious approach there. And, the reply agrees only a small segment of Trump voters will change their mind but they matter.  That's fine too. The question is how to go about that and responses (some substantive) to false premise tweets etc. tell me little there. Anyway, the reply is appreciated.

I'm Team AOC

ETA: To get a sense of what is at stake, a discussion of a means used to push refugees on Guatemala, which is not exactly best able to handle them, being a place people flee from already. Meanwhile, a mother from there testifies about her daughter dying, after poor treatment in a camp. Clearly, the problem is AOC and "the squad."

The agitating that the freshmen are doing about the camps, in order to keep the issue in the news and try to force action on it, is something Dems failed to do on behalf of DREAMers in 2017 or on behalf of Garland in 2016. This is what advocacy looks like.

-- Brian Fallon (profile: "Executive Director, We Demand Justice. Former aide to Eric Holder, Hillary Clinton and Chuck Schumer")

Last nite, on a day to honor a young pitcher/leader who recently died, the Angels had a hit parade and combined no-hitter (one walk), on the first home game after the death and the day before his birthday. His mom threw an excellent first pitch (know where he got his talent from!). The Seattle Mariners provided the thankless opponent role (the Angels used an "opener" and then someone whose recent outings were far from no-hit stuff for the next seven), down to a lackluster run out of the box to help make up for a possible hiccup on fielding the final out.

The Mets lost to the Marlins, a highlight six toss-overs to keep a pitcher close at first base with the at bat ending with Granderson hitting a two run homer, followed by another one. Somewhat different first games back. The first game was Thursday with the Rangers giving the Astros a run for their money again.  So, you know, the expected as well a bit of baseball magic. I like to snark about the Mets on Twitter, in part since on some level baseball doesn't matter. Sports do matter, but they still aren't life or death (most of the time).  It feeling good was shown by the women's soccer team (now just known as "the team" as compared to "men's soccer") winning the World cup.

[The Mets then won the next two games, the second one via two runs in the eighth -- scoring in that inning an ongoing theme in winning games -- the second basically by DeGrom pitching well (NS did too) while the Mets offense actually showed up some.  My general sentiment here is BFD. Will they do a 2018 and suddenly have a good run?  And, then the team won't really do anything different since you know this year was just a quirk.]

Okay.  Yes, the opening quote.  After Pelosi publicly asked Democrats to stop sniping at each other in public, the House Dems Twitter feed (without deigning to suggest they even knew who he was) reached back a few weeks to find a tweet to call out AOC's chief of staff. Talking Points Memo summarizes things, an appropriate citation since the head of that blog last night also tweeted about the dust-up.  People, including myself, can be too concerned with Twitter, but let's say the tweet got a lot of attention. The basic sentiment of many was "what the fuck are you doing?"  Of course, some had to take the other side, and call out AOC and others.  Some with stupid .gifs or pictures.

There is now always a feeling that we have to fear anyone making strong comments that come off as divisive are really "trolls" or don't reflect any real sentiment as a whole.  "It's only Twitter."  This can be taken too far.  First, Twitter is a thing and like Facebook and other social media has real effects and reflects real sentiments, if all having some means to exaggerate and all that bad stuff. The same can be said about cable news, traditional media and most anything of this caliber.  Second, the divisions expressed here were made elsewhere. Pelosi and others have shown their feelings in other contexts and even a resolution that was at least partially a subtweet against one of the four new POC* House members referenced by some as "the squad."  This isn't just their supporter's imagination. #Gaslighting Noting the importance of perspective.

Josh Marshall (TPM) as noted tweeted, noting Pelosi and the House Dems were wrong ... well, let me get the exact language.  Marshall started his blog during the Bush v. Gore fight (11/12/00 in fact) and his voice here is worth singling out since he's an important expression of a long term political commentator.  My concern reflects this as compared to you know a random Twitter person.  Anyway, later on he spoke of the "courage" (his scare quotes) of a Democrat in a safe distict though also retweeted the Fallon's comment. But, like comments sympathetic to Biden if concerned about him being the candidate, his tweets aired out his sentiments.

First tweet:

Democrats are talking about some dumb shit tonight. Pelosi has done herself/her caucus no favors with her dismissive comments. It’s also mind boggling that AOC and crew can try to upend their caucus at every turn and then be shocked they’re “singled out”.

Second:

2/ The four of them have every right to be rebels/insurgents. They’re elected reps. But who expects to be insurgents and also think you’re going to get achievement ribbons from the people you’re surging agst? Regardless they all need to figure out how to put this shit to bed.

This "both sides" business is a bit much and not evenly handled, showing his sentiments some.  It is "Pelosi" (the leader of the caucus with decades of practice at this) on one side and "AOC and crew" on the other.  They are "at every turn"  (#hyperbole) trying to upend their caucus. Uh huh. Like the "problem solving caucus" voting against the leadership position or even against Pelosi herself?  AOC et. al. voted for Pelosi.  They didn't try to find someone to challenge her as speaker. Likewise, the dismissive "achievement ribbons" comment.  This all pissed me off as unbalanced this even beyond her being my representative and liking she is (rather skillfully though I remember she just got there, so is still a bit raw) strongly speaking out.  The times warrant it.

A reply (again, one really can spend too much time with these**) argued he was being a "technocrat" and not seeing how AOC is being a "visionary."  He replied: "don’t lecture me about politics and causes."  As the person noted, "get off my lawn" is implied.  See also, Rick Hasen (Election Law Blog) worried about speaking of "stolen elections" and when people call him out, he gives his bona fides as a voting rights warrior. Sure is and great. But, you can be wrong about something. And, Pelosi has been too.

I know who the true enemy is here.  I saw 1776  (movie reference), but  the tweet (without providing the context, as the COS tweeted in a reply he supported the choice of the person he criticized running and considers her a friend ... using her first name, therefore, was not some grave act of disrespect on his part) reflects a problem in knowing how to battle them.  it was particularly asinine when the original tweet was an in the moment raw reply to the emergency funding border bill dispute.  In the news yesterday was Pence and company visiting the concentration camps and even after the Democrats supported the funding bill (with no real teeth), calling out Democrats for not providing means to support them.  AOC and the others taking a hardline here comes off rather well in the fact of that shit.

Over at another blog, the second of two somewhat related discussions (with lots of comments) on basically what "republican government" means (including the true meaning of "one person, one vote") in part discuss strategy.  Movements as well as legislative caucuses need to keep this in mind.  AOC and others provide a valuable function.  We can debate how far she should go (including challenging long term incumbents in safe seats, shades of Republican conservative efforts), but overall, her fire is both helpful and not just a chaotic force.  As the lead tweet notes, something like this would have been helpful with Garland (not sure about the Dreamers -- seems there was some voices there).  This is not just from me or "Twitter liberals" but also from aides to leadership, including Harry Reid.

I think an impeachment inquiry is warranted and not only is just but pragmatically helpful.  Looking it up on Wikipedia, the formal process for Nixon started in October 1973 with the end game starting in May (still active when he resigned in August 1974). Before then, there were Watergate hearings.  Now, we have scattered hearings with no overall umbrella with various ongoing lawsuits to get documents or people to testify.  Pelosi seems not to want that personally and this influences the state of the caucus as a whole of which only a fraction publicly are on board.  Think her comments on it have been bad either way.

Overall, glad my representative is pushing and screw the haters.

---

* It is notable that the four vocal women representatives at times singled out (though "Justice Democrats" make up a wider number) are POC and people find it offensive that they personally seem to be targeted. Others say it is outrageous to suggest Pelosi et. al. are somehow racist, but our party generally seems to understand the complexities of racism, including disparate impact.  Taking care to avoid feelings of disrespect isn't too hard and is something taken into consideration back to the days of dueling.

** A few weeks ago, though I still read and favor some tweets, I started a policy of not tweeting on weekends.  I admit to a Twitter addiction in part since I enjoy giving my .02 and it is a means to vent. Plus, it's fun and informative.  You engage with some great people. Monica Lewinsky, e.g., "liking" a tweet ... come on.

Election Day: Sanity and Bit More (and Less)

It is appreciated that the Dems regained control of the House with some picks in red areas and had some good ballot measures (including multiple states expanding Medicaid) but the trolls winning in the Senate and statehouses (not all confirmed) depresses and angers me. It is not just that many of the Democrats were good candidates but that some of the Republicans were horrible. Well, a few of them, including Kobach did lose. Still, it's tough. We have a long way to go as a country. Full Democratic control of the NY Legislature now.

Update: It's a week after and the election isn't over in various ways, including the Florida Senate race and two key state governor races that influenced my negativity. It is a relief that Sinema seems to have won Arizona after being behind by a percentage the morning after. The Senate cycle was very tough and the Dems (pending Florida) will be either -1 or -2, which tbh is realistically a win especially since Doug Jones was a steal. Tough losses though.

Baseball and Books

Couple late nite finishes in the playoffs and neither ended well in my eyes. Brewers still need to just win two straight.The Endings is a good idea, well done: photographs that tell a tale of loss for various women, a few portrayed by well known actresses. I'm not sure how far I'd take it but Why Honor Matters is at least an intriguing read up to a point. For instance, the Republicans during court battles to me in part are dishonorable -- in your face -- and Democrats need to factor that in when responding. Pragmatics need to take that into consideration as seen by the negative reply to a recent "compromise" that I'm not alone confused about the value of. But, not sure how far that is a matter of "honor" exactly.

ETA: Another team I preferred was eliminated, the Astros only winning one, in part thanks to a bad call and great catch at the end. Well that was Game 4, but it sealed their fate.

Kavanaugh and the Duties of the Nomination Process

Update: On Thursday, we had the special hearing with Kavanaugh's accuser (with a woman prosecutor standing in for the Republicans though from my understanding at times they stepped in and she popped up later too) providing a very emotional and convincing account and then Kavanaugh came, providing a very emotional, unhinged (strong partisan attacks on Democrats for 'Borking') and unconvincing denials.   

As argued below, contra to the view of various supporters, this isn't a criminal trial with a burden of proof favoring the "defendant." The hearing also was a sham in that no other witnesses were called. (cf. the Thomas-Anita Hill hearing).  Nor, were the other allegations probed or witnesses or even witness statements officially submitted or handled.  Kavanaugh failed on any number of grounds. He did already.  His testimony made things worse for him, including as a neutral arbitrator. Except maybe for the votes that counted. Well, Trump liked it.  

On Friday, the next day, the vote to advance it out of committee was held. Obviously, it is absurd to do so immediately. The result was an unsurprising party-line vote with drama:  the vote was delayed for ten minutes as a Flake proposed "deal" was discussed.  Basically, it is an up in the air thing: he said that he'd vote to advance but did not want to vote on the floor for about a week so the FBI can investigate. Requiring other parties, the implication being a few Republicans (notably the likes of Collins) are on his side, including Trump, this thing is up in the air for now.  It also was suggested a very emotional encounter with two victims in the elevator influenced Flake.

The twisted soap opera continues. 

====

As the details of a possible Senate hearing this Thursday to deal with an allegation of attempted rape when the putative replacement of the swing vote of the Supreme Court continue, more allegations are developing. The #MeToo movement has reached the Supreme Court (again) and we have a new hashtag on #IDidntReport.  Already, and hopefully after he is forced to resign his nomination (which is far from a lock even now), this has pay some dividends. Some sort of justice and inability to silence and tar accusers is in place and will be later on. Not enough.  Justice comes slowly.

(This is why even replacing Kavanaugh with some similar conservative matters. He is particularly bad and forcing him out shows a limit. It also shows why the handling this well goes beyond him. It is a matter of handling things that will come up again and doing so half-way well.)

The mistreatment of the Kavanaugh Nomination, including rushing things along (not in a vacuum -- looking at raw days, this isn't taking long in comparison, but level of documentation that had to be processed alone required more time), is a warning sign. It also provides, as each confirmation and moment of major note, a sort of learning experience. Constitutional developments don't just occur in the courts. The proper handling of nominations and confirmations in general as I tried to argue in this thread  often is a matter of the political process in action.

This doesn't mean they aren't "constitutional" as Justice Kennedy ironically repeatedly said, including in his last appeal from the bench in a separate opinion in the travel ban case. Lame as it might have been in that case, there is something to his argument. In some other case, the courts might have less call or ability to be involved and to provide strong restraint. The Constitution is not in abeyance then. As Kennedy argued:

Indeed, the very  fact  that  an  official  may  have  broad  discretion,  discretion  free  from  judicial  scrutiny,  makes  it  all  the  more  imperative  for  him  or  her  to  adhere  to  the  Constitution and to its meaning and its promise.

Again, this might sound like pablum, but realistically and as a matter of good practice, we cannot merely rely on judges. State and federal officials, down to postal employees and notaries, swear or affirm to uphold the U.S. Constitution.  Their judgment alone often is what matters and needs to be developed in various ways, including moral restraint.  These things should be kept in mind when we look on during the Kavanaugh approval process. On the standard to use there, Prof. Kate Shaw (who happens to be Chris Hayes' wife) had a good op-ed recently that can very well in some other case limit a Democratic President. And, it surely did somehow.

So what standard should the Senate use in evaluating the claims made by Dr. Blasey and in deciding how they bear on Judge Kavanaugh’s fitness for a seat on the Supreme Court? The Senate’s approach to its constitutional “advice and consent” obligation has always depended on context. A number of factors matter: the timing of the vacancy; the justice being replaced; the nominee’s likely impact on the ideological makeup of the court; even the popularity of the president (very popular presidents have always had more leeway when it comes to picking justices). Then, of course, there’s the nominee.

She appealed in part to history:

But in each case, a constellation of considerations, both political and constitutional, operated to defeat nominations of individuals who were certainly qualified, by conventional metrics, to sit on the Supreme Court.

She concluded:

This context-dependent approach arguably leads to the conclusion that the existence of credible allegations against Judge Kavanaugh should be disqualifying, especially if further corroborating evidence emerges. That’s true even if the evidence wouldn’t support a criminal conviction or even civil liability.

As it continues to emerge. A basic part of this is that this isn't a court of law or even a simple job interview. It is a seat, a key seat at that, to the U.S. Supreme Court. These things all have to be taken into consideration:

Putting Judge Kavanaugh on the Supreme Court in light of credible allegations against him could raise troublesome questions about the court’s legitimacy. And that’s a genuine problem, both for the court’s ability to function and more broadly for the rule of law.

Such things should be taken into consideration at the nominating stage too. And, it should be now at the advise and consent stage. But, you live by the constitutional political appointment process, you die by it. Thus, politics affects the hard-line approach of the Republicans, even if an alternative will offer similar (if somewhat different in some fashion -- each member of the conservative wing has certain differences than the others) judicial results. Demanding some limit to the usual court nomination bullshit dance is appropriate here, blatantly opening himself to perjury charges. "Defenses" of "just blatantly unethical" help only so much.

This is a political question. By raw power, a senator can flip a coin and the very mix of concerns can be tainted as here.

===

The issue of a "proposed standard" was raised here  and someone felt it was wrong use phrase things in a legal fashion when it is a political decision. It is fine though to use "burden of proof" in various ways, including cases that are not legal proceedings. It also has a philosophical meaning after all and people use legal terms colloquially.  I also found a good quote in an early Supreme Court case regarding decision-making by justices, which also ultimately is a matter of justices deciding things based on judgment:

[Various opinions on the dispute at issue] incline us strongly to suspect that a great diversity of opinion prevails in that state upon the question we have been examining. However this may be, we hold ourselves answerable to God, our consciences, and our country to decide this question according to the dictates of our best judgment, be the consequences of the decision what they may.

That is, the justices swore an oath and have a duty to determine the law as they deem fit. The power is ultimately theirs. But, it is reasonable to say that "best judgment" is something that can be opined upon, after all "We the People" ultimately are in charge. That is what the author of that post did. He put forth reasonable grounds for others to help determine if senators were using best judgment. And, yes, judges have a responsibility to apply law, but justices ultimately are the final arbitrators.

If they decide based on flimsy grounds, it is not like the law is not binding. There are ways for others to respond, especially if the judges don't act in a convincing fashion. In both cases, they are "answerable to ... our country." Anyways, more continues to come out including in comparison to the last nominee, who even went to the same high school without being such a sexist asshole.

[Last part added on 9/25 and might add more.  Bullies won in 2016. Will more win this week? First Monday in October is the 1st.]

SCOTUS Update

Last time had more news from the Court itself with today's order reflecting things are more low key this time. Paul Manafort's convictions and Michael "Trump personal lawyer" under oath implicating Trump in a crime does strengthen the basic argument against Kavanaugh: "No president suspected of criminal conduct should be allowed to seat a Supreme Court justice." The other stuff can be added, such as how the Republicans are rushing things or abortion or executive power or, but the underlining taint is basic. If court packing is so horrible, as some say, how do you deal with 2/9 of the Court being illegitimate? Well, some deny that, so it's talking past each other time. For now, win in November.

NY Election Update

Now, we have Ryan/McConnell and Trump. That picture is from this discussion of the demonization of Nancy Pelosi.  My basic take is that I generally agree with the analysis of how good of a job she is doing. Likewise, there is no compelling need to replace her, especially without a very good option (the wannabe challenge in the past is not that).  But, I'm for an evenhanded promotion of a younger generation as a whole.

The future leader of the party (the talk is a tad overheated) won my district, Joe Crowley listed as a possible replacement (don't quite see it) of Pelosi by some.  The upset has definitely made Cuomo and Jeff Klein (state senate) extra careful to promote themselves (keep on seeing Cuomo ads during Mets games and Jeff Klein yard signs -- we don't have many yard signs in general around here generally)  vs. to be honest long shot competition. In some other state, either of those guys will do (Cuomo more so), but we are New York. In the Trump years.  So, no f-ing way.

(Both have been office for a sizable amount of time -- Cuomo for eight years, Klein for fourteen. Klein especially seems to have been there too long at this point, his IDC power anctics telling in that respect. Cuomo still probably is aiming for 2020, though he would make a horrible choice in my book there, a safe pol type that people will find reasons to dislike.)  

Jeff Klein came off smarmy during a debate with Alessandra Biaggi (whose grandfather years back was convicted of corruption), good to say her name, since there are so few yard signs around of hers. I think that matters, if a bit less than the local city council race where the final result was a few hundred votes and I do really think the establishment candidate dominating the signs in business windows (I recall like one of the second place winner in the midst of a stream of his) very well likely mattered a lot.  Anyway, I don't think Biaggi came off THAT well, came off as a bit rough.

I personally am seriously ready to support the most left leaning, new, anti-business as usual/establishment type candidate all things being equal, so it's Biaggi and Cynthia Nixon for me. Andrew Cuomo actually did do some good things, but has that unsavory insider vibe that helps the business as usual deal that helps stop NY from going the route of #Resistance ala California.  The Independent Democratic Caucus thing hurts Klein too, especially since -- this wasn't made clear in the debate -- there was at least a small window where they did directly had power to Republicans. Klein in the debate early on tossed out three Dems who were later arrested to explain starting the IDC, but what about the Republican leader he supported in that respect? Or, the rest of the Democrats that was worthy of support?  My public school teacher source also is no fan of his record on teachers.

Anyway, I rather we move on from both of them, but admit it is a longshot (more so Cuomo; Biaggi might have a bit more of a shot if the voters are ready to kick the establishment guy with issues out).  I'm not sure where to go in the Attorney General race, but might just go with Zephyr Teachout, who has the support of the Justice Democrats (the left leaning upstart coalition this year, basically) and whose ideas I like.  Her past efforts to win office, even local office, didn't go over that well.  And, at least one of her competitors probably would be a great option too.  So, that's good.

[Update: NYT endorsed Teachout and on Twitter Emily Bazelon compared her to the former public defender "outsider" Philly DA.  So, sounds like a good choice!]

There was a brief mention of the so-called "road diet" (shortening the street and adding a bike lane) plan for Morris Park Avenue, which is near me. I admit to not knowing about this until I saw a tweet about it that was a potshot at Biaggi for not properly finding out what the neighborhood wanted.  Me personally, I never thought of Morris Park as that crowded traffic-wise. I guess the construction might be a pain, but support bike lanes. Bike rentals in some areas are a great idea but the Bronx specifically is only somewhat bike friendly.  So, you know, I'm with Biaggi there too as being at least warily supportive of the idea.

[Upon thinking of it, I would need to know how it will be done. If it results in one side not being open for parking, it would cause issues. But, one lane on one side, as long as cars could still pass, would probably work.]

Meanwhile, I'm glad Nicki Minaj thinks I'm "genuine." She was great.

Alexandria Ocasio-Cortez

I often vote for the challenger largely as a protest vote but this is a challenger year. In the year of three NYC primaries in my case (state/federal and one to fill a vacancy), today was federal Election Day. A long term incumbent was threatened, someone who was talked as the future House Speaker. Like his predecessor, seemed to focus on Queens, not my area of the Bronx. He lost to an under 30 Latina from the Bronx. Go get em!

Update: Can't forget about Mitt "Trump supports me now but hey I'm independent!" Romney winning the Utah Republican Senate Primary. Oh, at his concession party, Crowley (while playing the guitar) sung "Born to Run" in Ocasio-Cortez's honor. Classy.

SCOTUS Watch

A few more days left of the term, so a Thursday opinion day added ... to deal with two cases. First a RBG civil procedure special:

Roberts announces that Justice Ruth Bader Ginsburg has the first opinion, in Animal Science Products Inc. v. Hebei Welcome Pharmaceutical Co. Ltd. Ginsburg writes for a unanimous court that a federal court determining foreign law under the Federal Rules of Civil Procedure should accord “respectful consideration” to a foreign government’s submission, but is not bound to give “conclusive effect” to the foreign government’s statements.

This means the revival of the respondent’s U.S. antitrust suit against Chinese companies for allegedly price-fixing their Vitamin C exports.

No separate opinions or dissents. The political opinion had a fairly expected if limited approach:

Not every Supreme Court decision about elections is a disaster, and the ruling in Minnesota Voters Alliance v. Mansky striking down Minnesota’s very broad ban on wearing political apparel in polling places is a pretty good one. Although the court struck down a law [Rick Hasen] thought it should have upheld, the opinion shows a more realistic and functional understanding of the political process than the court has shown in campaign finance cases. It gives states ample room to assure that people can vote at polling places free of political pressure and intimidation.

It was a Chief Roberts minimalism special with two liberals dissenting in a short opinion wishing the state court got a chance to clarify the statute.  But, it wasn't with much passion, since as Rick Hasen noted, the opinion left open the chance for broad regulation at a polling place. A polling place not being a public forum as such, the government can limit what is said there, including with political apparel. It just has to be clear about it.

Next set should come next Monday unless an order pops up.

SCOTUS Watch: Voting Rights [and other matters]

And Also: I tossed in some other legal matters in the content of this post but also added to the side panel a timely book (including given D Day just passed) regarding Sophie Scholl and the White Rose movement.  I saw a German film years ago on her as well and liked it. An article on Svengoolie and marketing was good too. 

Today was an orders/opinion day and there will be another one on Thursday -- there are around twenty more cases to handle in the next few weeks. Nothing really of note among the orders from what I can tell though a few curious tidbits such as "SEALED APPELLANT V. SEALED APPELLEE" that was granted/vacated per a recently decided case. Also, the opinion of the Solicitor General was asked in some cases with human rights implications.  The Arlene Flowers marriage case is open.

I have been reading Adam Winkler's (he also wrote a good book on the history of gun regulation) book We the Corporations: How American Businesses Won Their Civil Rights. A lot of material, so it has to be skimmed, and we get most of the focus on Supreme Court action.  It's best not to see this in a one note fashion, particularly when we are talking about media and non-profit corporations. To me a specific concern is that corporations being a form of legal "person" is not the same thing as them being "We the People" or exactly like natural persons. 

One notable bit is that often it is a good thing to treat corporations as "persons," since that can mean the government treats it differently, since it is a special sort of "artificial person." The other approach is to ignore the corporate form and look behind it to the persons who make up it or speech it promotes.  Consider the Bellotti case, e.g., where the special nature of the corporation (including the problem of split shareholder consent, which was a major concern in an early 20th Century matter cited in the book) is flagged by the dissent (White with Brennan/Marshall; Rehnquist separately).  White's dissent is worthy of emphasis.

Back to today.  Four cases decided. One was evenly decided after a conflict from the 1980s involving Kennedy was flagged.  RBG (with Sotomayor, as is her wont at times, differing some) handled a civil procedure matter. Kagan, with Gorsuch dissenting alone (tossing in a cite from the 13th Century), handled a case that accepted a divorce procedure that was challenged on Contract Clause grounds.  And, the big news -- the Supreme Court by a predictable 5-4 vote (accounts flagged the challenge was in trouble) upheld the Ohio policy in a voter registration dispute applying two national laws regarding the proper means to update registration rolls.

The statutory argument was deemed "close" by Rick Hasen and basically it is a matter of tiebreakers. He calls the result "unfortunate," which is at times c'est la vie, but in this case the liberal dissenters (Sotomayor highlighting the discriminatory impact) appear to have a workable argument. Meanwhile, Alito provided a "strong" conservative reply, which is basically his job.  Me, I think a good rule of thumb is when it's between Alito v. Breyer and Trump v. Obama, the latter is a good call.

Anyway, this appears to be a thumb of the scale (not Shelby level bad) voter suppression result, if one where the battle is still on. Especially later this year (NY federal primary is the end of this month) and 2020.

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One more thing. There was an interesting article in the NYT regarding nitrogen gas as a means of execution, which is the latest thing.  A few, including Justice Sotomayor in Glossip, flagged the firing squad, but this is promoted as the latest in best practices as to death executions. It is more comprehensive than an op-ed against its usage (the person supports oral drugs) though he was cited.  Note this passage:

Veterinary experts generally do not recommend nitrogen or other inert gases for euthanizing mammals. Responses to the gas vary according to species, and in its 2013 guidelines, the American Veterinary Medical Association said, “Current evidence indicates this method is unacceptable because animals may experience distressing side effects before loss of consciousness.”

The op-ed was cited separately and the guidelines linked and the quotation was not there. Some form of the article, or at least the quote, can be found by doing a search a few places. So, the matter interested me, and I sent a message to both of the authors of the piece via the NYT online link provided. Denise Grady nicely replied (I asked another blog related author a question and she too replied* -- the Internet is charming at times):

The quote came from  the World Society for the Protection of Animals, not the veterinary association.  My error.  I had information from both and mixed them up.

The citation has not been changed yet though. Oh well. I sent another line and the same person said it will be corrected. [Update: It has been.] I sent a note regarding a couple typos in a SCOTUSBlog article and they were fixed right way.  No judgments -- I'm a typo machine.

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* As I mentioned in a comment here, the person even sent an attachment of the article, which I might otherwise not have obtained.

Note it is part of an ongoing series of posts there and at Concurring Opinions involving the amendment process, arising from putative recent ratifications (and rescission, there in the past) of the ERA.  The question split the people in some curious ways, but the bottom line for me is that I think too much time passed for us to ratify, which very well might be a thing to worry about since counting recent votes would mean we are but one away!

The issue of rescission is to me less clear-cut though precedent and Article V text (speaks of ratification alone; that is, one way) is telling. Also, if there are any blanks, the Necessary and Proper Clause gives Congress the upper hand there.