Senator Lindsey Graham Dies

He had his moments. He was lately a tired, pathetic Trump supporter. More here with an extended bit on Mitch McConnell. 

August Sixth

Three important things happened today over the years. Other things happened. These things stand out.

Hiroshima

A nuclear bomb was dropped on Japan in 1945. We have since then debated if it was just to do so.

One analysis today suggests the Soviet Union's entering the war factored in. Experts still debating suggest that just maybe people in the midst of things acted reasonably. 

Not necessarily correctly. But 20/20 hindsight is easier than a decision in the middle of a world war. 

Voting Rights Act 

The Voting Rights Act of 1965 was a fundamental defense of basic republican values. Voting rights are still threatened today. Rick Hasen's right-to-vote amendment idea (and his book discussing it) is worthwhile. 

I think the current Constitution protects a right to vote, but it has not been adequately applied in recent years. An amendment could also address such things as people in territories not being able to vote for president. 

A new Voting Rights Act is a fundamental goal when sanity returns to the national government.  

Bin Laden 

Today was also the date of the infamous "Bin Laden Determined To Strike in US" presidential daily brief. 

The Bush Administration assured us no one would have expected something like that. See also, the chance Iraq II would go badly. No one expected that!

I am not going to say that President Gore would have stopped the attacks. There was reason to think Clinton/Gore were paying more attention to the overall threat of Bin Laden. But it assumes too much to think Gore would have stopped 9/11. 

It is more likely that the Gore Administration would have focused on Afghanistan and not invaded Iraq. How Gore would have handled Afghanistan -- it lingered on until the Biden Administration -- is also unclear. Some are a bit too cocksure about things. 

Here is a discussion on 9/11/21. 

Continue to Say No to Cuomo

I respond to a discussion about an appeal to consistently supporting the Democratic nominee. I agree, but am still bothered, particularly that Cuomo's sex crimes continue to be underreported. 

More On Kagan

Justice Kagan used a patent case involving a Spiderman toy to not only have some fun with superhero references, but also to defend stare decisis (in that case statutory). The senior justices of the time (minus Scalia) dissented, Alito for Roberts and Thomas. So, Scalia assigned the opinion. 

She talked about it in a recent interview, one chance for her to discuss her views and concerns. It would be interesting to know though my assumption would be that she had some sort of pre-interview discussion with the dean/law professor who interviewed her.  If that is often done with talk shows, I think it would be fairly likely it done in cases like this.

After writing the last entry, I listened to the whole interview. One of my things is that there is often some details that are lost when reading summaries.  It's not going to be possible to "deep dive" everything, so you have to trust the summaries some.  Nonetheless, there is going to be something lost.  There are usually some additional details.

I don't think anything really significant would be added there in this case. It does provide some more detail.  For instance, when asked what she means when she worried about legitimacy, Kagan argued it involved justices not acting like a court. Eric Segall of the constant #notacourt fame thinks the Supreme Court is not a court.  I think he exaggerates.

What does Kagan mean here?  She cited three things:

• Precedent
• Consistency (particularly regarding judicial method)
• Restraint/Judicial Minimalism 

Justice Kagan has been fairly consistent on the precedent front, including when the Supreme Court overruled a case to protect a right to unanimous juries.  Kagan in the interview argues that you should rarely overrule a precedent, particularly noting when a doctrine or case no longer works. This would include something past its time (like old fashioned gender roles).  So, simply saying there is error is not enough.

For instance, some liberals (such as RBG) felt that the Supreme Court should overrule the dual sovereignty rule for double jeopardy. The same basic act should not be open to prosecution by a state and the federal government.  The Supreme Court recently upheld the old rule with only Gorsuch and Ginsburg dissenting (Thomas actually did not, after earlier on suggesting he might).  

I have felt the old rule dubious, but actually am sympathetic to upholding it.*  Also, it rarely actually comes up, especially since the feds have policies to avoid doing it in various cases.  Also, there is specific cases where the feds might have too much of a role in the state prosecution.  So, it doesn't happen too much. 

Kagan did join a 6-3 dissent in a case involving unanimous juries, joining an Alito dissent that had a few dubious comments.  I think she did it for consistency sake, since it was a sympathetic case, especially since there is some evidence that not having unanimous juries have negative results regarding racial discrimination.   In fact, I think she could have concurred on narrow grounds without disrespecting precedent much at all.

(The law actually already changed, leaving ONE state as well as Puerto Rico not having unanimous juries and even the law in the one state -- Oregon -- had dubious roots.)

One case where there might have been a bit of bit was one involving benefits for Puerto Rico, including the lingering effects of the Insular Cases. Nonetheless, the case turned out to  be 8-1, and did not turn on overruling those cases.  So, I'm unsure really where Kagan's respect for precedent really hurt much. It would interest me what she will do regarding the abortion case (Dobbs), which is now precedent. 

As to method, Kagan was not a big fan of originalism. She argued that in application, it seemed rather flexible with time periods, evidence, state of generality, and what exactly is used (original understanding or original practices).  The result is it seems liable to be used for results-oriented jurisprudence. She also argues that the Constitution itself generally are made up of open-ended provisions that by text and design are not logical for that approach.  Originalism is not originalist, maybe?

She is more of a textualist.  A textualist, mind you, is not the same as an originalist though some people define the latter term in such an open-ended way that you might think so. To be clear, not a big fan of that last article.  On that front, she flagged her dissent to the "major questions doctrine" exception to text. And, she cited her dissent in the voting rights case. Since I wrote about that on another blog, I will cite a discussion of this opinion.

Kagan argued the Supreme Court looks bad when it goes too far when it doesn't have to do so.  It looks political instead of a court. She called foul on an excessive use of the "emergency docket" (she called it the "shadow docket" at one point, somewhat embarrassed as if she knew the baggage of the word).  Kagan noted it was understandable to want to intervene in use of single judges using national injunctions. But, even there, she argues that there should be another way to deal with the situation. 

Steve Vladeck (whose book on it is now in pre-order) has written a lot about the shadow docket.  I do think a good case can be made for abuse there, including major policy decisions in inappropriate ways.  As to precedent, there are various cases where red flags can be cited, though again there is the trick that it is unclear how many cases Kagan restrained herself to uphold some conservative decision.

Breyer and Kagan did join some conservative opinions for what people assume are strategic reasons, the most blatant being what amounts to be an expansion of unconstitutional conditions principles in the Affordable Care Act Cases.  So, it's important not to be too cynical here, especially since people over time argued that their strategic returns got to be less and less.  And, off the top of my head, I don't know of any old precedents Kagan refused to go along with of any note.  

The 6-3 Court is doing more to flex its muscles, including both overruling precedent and going further than the cases reasonably warrant.  And, the logic (so to speak) of the conservatives leave something to be desired. Toss in the results are bad, you can see Kagan's concerns.  

Kagan argues that mere popularity of decisions isn't the only factor. That's true enough since some results like defending unpopular speech are right even if people don't like them.  Sure.  The abortion case was unpopular AND had problems that arose from other issues too. The merits was always going to matter, but so did the other stuff, including the reality that the whole thing was stacked against losing side.  

The last thing to think about is what to do in the future. I hope that some time down the road we will have a better Court. How should we deal with the problems of this one?  We will have years of precedent.  Are we stuck with them via stare decisis?  How do we get around it?  Will it take a major political change ala the New Deal? Constitutional amendments? Something else?  Will how the precedents were formed factored in?

Kagan talked about the two judges she clerked for, including a lower court judge who served in each branch of government.  She really didn't talk about her own diverse background (instead of Congress ala Breyer, she had long experience in academia and is the only non-judge to be nominated to SCOTUS since Lewis Powell). But, I think her work as a clerk, two presidential administrations, and academia did provide insights. 

So, what about those three criteria?  I think the current Court is problematic in part for those reasons. It is doing too much without enough justification. The Warren Court did a lot, but the time was right for most of it, and the Court as a whole reflected the governing coalition.  That last bit is an important part of things that Kagan not surprisingly avoided. It hits too close to what might be deemed "political" matters.  

Contra to Roberts talk of people disagreeing of results alone, it most definitely part of the problem.  I won't repeat the last entry on that point except to say it is clearly part of why the Court does not seem legitimate to many people.  The Court is not a fair reflection, even to the degree nominees are not a simple 1:1 match to the population, of the current majority.  A basic reason a result to a broken nomination process.

Breyer was challenged pre-retirement  for attacking those who questioned the Court. He wrote a selectively written book (more an extended lecture) warning people who wanted major change though beforehand granted he was open to the idea of term limits.  The general assumption is that he lived and learned a bit.  I wonder (if he saw them) how he took the Kagan remarks. 

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We will see if there is any orders or other news (as it seems to do) that pop up next week. There is an execution scheduled. If it goes down, I will write a bit about it.

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* ETA: If you are curious why I feel this way, basically, I found Justice Alito's opinion (when he isn't being a hack, he has some good moments) pretty convincing.  Federalism includes the idea that someone might do a wrong against both the federal government and state by doing one act.  In the process, two sovereigns have different interests.  

Sometimes, the feds might be involved in the state prosecution, so it would be double jeopardy. Other times, it might not be good policy to have a second prosecution, or to have the federal government step in. But, as a matter of basic constitutional principle, I think maybe they were right there.

"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.

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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.

Electors and Elections (2016/20)

I did not read the 100+ page opinion (it was not really simply ideological -- each judge on the panel was nominated by a different POTUS), the "it's moot" dissent only a few pages. Did listen to the oral argument and the result does sound reasonable. But, as discussed here, it is far from clear and there are complications. The lower court opinion went the other way.

I would really try to avoid deciding the merits if possible. Will SCOTUS now decide? The issue of faithless electors might matter more in this day and age; if Trump won two of the three Midwest states that decided things, this thing could have came down to one or two electors. And, then there is the "show us your tax returns" primary challenge that some liberals are worried about. (Will it invite tit for tat? make a national popular vote compact harder?) The state constitutional claim looks like it deserves more attention.

ETA: There was a move to make this an individual rights case, the electors having a right to vote, but independent electors were never really a thing. This made the 2016 "we need to stop Trump" fantasy just that in practice. There is some argument there but the text also seems to leave open broad power to the states (and Congress) to restrain as well. Plus, good policy would so hold. So, if possible, I would let political branches handle it.

Comey Firing

I was trying to find opposition to Comey's nomination back in 2013 on a blog that now is fill with people who basically assume afte the fact it was so obviously stupid. Before asking again in a comment, see the news (on Twitter, of course) Comey was fired. The details are shall we say dubious. The alleged reasons likely specious. In a horrible fashion. Simplistic arguments like "Democrats wanted this" is therefore unconvincing, including because not all of them did. Given whose in power, Comey very well might have been unfortunately the best bet, at least for now. Republican responses have been mixed, some supporting, some "oh well," some "concerned." More reason not to take anything they do and say seriously.

After Disaster Analysis (Electoral College too)

One blog that I relied on for electoral analysis predicted a 50-50 Senate (LA is not a lost cause, but 52-48 the other way seems likely) and a safe electoral vote win for Clinton.  Recent remarks:

Now that we’ve had a week to digest the results of the 2016 election, here are some observations about what happened and what the results might tell us about the future.

The 11/9 post was aptly entitled:"Mea Culpa, Mea Culpa, Mea Maxima Culpa." Others without the specialized skills-set here are saying something along the same lines.  I was rather sure Clinton would win though some of the upper-300s electoral votes predictions seemed to me rather optimistic. [The level of assurance makes the gleeful taunting nature of some of the responses rather expected, even if they come off as sore winning.] Polls before the election suggested to me that (sadly) a much closer election was possible.  If only it was only that bad.  Key differentials, and 50 wouldn't have been enough this time, in the Senate was PA and Feingold losing. The other best shots were Indiana and Florida, two unsavory insider types running though they were our insiders.  But, Feingold? Sad.

The analysis usefully provides margins of victory. Wisconsin and Michigan are under a percent (NH went Clinton similarly by a hair); Florida (many feared a loss here) and Pennsylvania (a surprise) by a little over a percent. North Carolina seemed possible, but was by a few percentage points.  Obama's success there, however, suggests future potential. The tiny percentages are balanced by significant wins in high population states, somewhat less the other way for Texas (NY/CA have over 20% differentials, while Texas has less than 10%). Absentee voting etc. means the numbers aren't clear, but HRC has over a million more popular votes.  This seems to be trending up.  The people spoke there too.

[Looking at the map, unless it changes, Clinton could have won Pennsylvanian and Michigan and still lost because Trump won a spare electoral vote in Maine.  270-268.  "What ifs" can be cited over history, it being close multiple times.  But, imagine that. Think now is bad.]

And, the differentials suggest even different campaign tactics would make it hard to change the final result.  Finally, early reports aside, turnout is consistent with 2012 though a few more percentage points voted third party.  How that breaks down is unclear and probably cancels out in the long run somehow. The tiny differentials in a few states still make me wary to conclude they had no effect or would not have in two states in 2000. This would warrant further support for some alternative voting system, instant run-off, preference voting or whatever.

A bottom line point to be made here is that "mandate" can be tossed around rather weakly.  More people voted for Clinton and the electoral vote in the key states turned on slivers of voters.  Over forty percent of the electorate did not vote.  Again, who knows how they would split in the end if actually pressured more to do so.  People can analyze the results to help Democrats figure out how to succeed in the future, though the basic conclusion I have is that too many felt it important not to vote for a clusterfuck.  Beforehand, I basically saw it as a test -- you usually don't have to make those real hard decisions, even if you are given thought experiments. Failed the test.  This looked to be a Republican year -- look at history alone as to the presidency going back/forth.  Plus, an anti-establishment year.  Clinton was not a great choice there.  Just thought Trump was horrible enough.  Mea culpa.

A final word on the Electoral College. This article critiques it though a telling tidbit was if the popular vote was more evenly apportioned, Clinton would have only won a plurality. This would have sent things to the Republican controlled House under the system in place, which sounds like a mess too. It cites this analysis of original understanding, one that tries to soft soap a bit on the anti-democratic nature. The fact the Framers didn't think the people had the information (given lack of communication provided by today's national media etc.)  is a sort of positive spin. Like parents benignly being in charge of children, respecting their interests, but realizing they aren't mature enough to make choices themselves.  End result in the same.

We have since then entrusted the people with much more political power, including suffrage generally and direct election of senators.  As the article says, as well, the differentials in population between the states then and now greatly increased. The analysis notes one factor involved were small and slave states being concerned. Only half of that concern is of course cited these days and the result in practice turns out to be swing states matter.  A few more were in play this time but it sometimes got to the point that one or two states (such as NY) decided the election.  The net value of moderation there is unclear especially since there are other ways to deal with that, including the nomination process itself.  Plus, we are balancing things here, especially when as much as a million and a half people more voting for one candidate isn't enough.

The Electoral College is not popular (many simply don't really understand it) though an amendment is a long shot since it is not so unpopular that a requite supermajority is present to replace it.  Another path is states deciding to allot their electoral votes matching to the winner of the popular vote if their total is enough to get to 270. It is useful to remember that the winner take all policy for electoral votes state by state is not constitutionally required. There are a couple exceptions now, and back in 1796, spare electors seems to be why Adams won. I read once Madison (fwiw) actually supported a district allotment. How that would actually change things is unclear and would average things off too. IOW, some districts will skewer toward one candidate, while another barely so. Both would mean one electoral vote, leading to population vote imbalances being possible there too. 

The federalism appeal cited by the Trump side is checked by those who argue "the point" (as if there was just one) was to avoid unfit leaders that are result of misguided unmediated masses (see, e.g., Federalist No. 68).  One way to do that is to try to protect the interests of all states, so a regional tyrant would not win.  Another is to have people vote electors, who ideally would have the judgment that might not be present in the masses as a whole.  Consider the old rule where state legislators, possibly pledged beforehand, voted for senators.  But, some independent elector not tied to a specific person really never really was how things worked.  It surely doesn't work that way now and the Supreme Court basically accepted it.*

A few are appealing to electors, mind you partisan Republicans though perhaps in various cases not loyal Trump voters (cf. Bill Clinton is an elector in NY), to be "faithless" here.  This apparently is being loyal to the Electoral College.  Others wish to strengthen rules in place to prevent this sort of thing, of course assuming state power warrants it.  Regardless, the first group is a rather forlorn hope, in large part because we didn't set it up to have electors really show independent judgment.  Juror nullification is not really supposed to be a thing, even if the inability to challenge a verdict (generally speaking) makes it possible.  But, it is still recognized jurors are not supposed to be automans, blandly following the will of judges.  Electors are quite different here and it seems quite possible the Constitution warrants giving states express instructions, even setting up fines or only giving electors the limited power to vote for one person.

Anyway, I doubt push comes to shove it would matter -- a few stray electors have yet to actually decided a contest. A differential in electoral and popular vote could have had been itself avoided in 2000 if Florida's votes were counted in a better fashion. This year, like in 1888, the difference is just blatantly in place, no realistic (though some will fear hacks etc.) chance Clinton really won the popular votes in the relevant states to win the electoral vote as well. I somewhat relieved that somewhere between one and two percent differential is involved, different voting systems likely to result in imperfect results.  Consider a plurality where a majority is against the winner, but in the end it balances out that way.

I'm not as passionately against the Electoral College as some but am inclined to go along with the popular vote.  Why are tens of thousands maybe of vote in even three states worthy of beating the wishes of millions?  Region is a rather imperfect way to address interests that simple majority might not offer you.  Plus, states still benefit in our system in various ways, even if you ala Madison's druthers had a one person, one vote system in the Senate (a truly fair approach there would cross state lines or more than triple the senators we have now, given some states have less than a million in a country of over 300).

Anyway, we have our system, and too many voted for Trump. 

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* Ray v. Blair in the 1950s dealt with an elector being required to take an oath to vote for the nominee, but unlike the dissent, broadly honored state discretion here.  It did hedge:

However, even if such promises of candidates for the electoral college are legally unenforceable because violative of an assumed constitutional freedom of the elector under the Constitution, Art. II, 1, to vote as he may choose in the electoral college, it would not follow that the requirement of a pledge in the primary is unconstitutional.

The opinion cited history regarding early practice as well as a 19th Century ruling that would come up in Bush v. Gore too:

Doubtless it was supposed that the electors would exercise a reasonable independence and fair judgment in the selection of the Chief Executive, but experience soon demonstrated that, whether chosen by the legislatures or by popular suffrage on general ticket or in districts, they were so chosen simply to register the will of the appointing power in respect of a particular candidate.

This is an interesting case of "expectations" alone not being the test though it was careful to note that even if "the constitution has been found in the march of time sufficiently comprehensive to be applicable to conditions not within the minds of its framers ... subjects expressly embraced within it" must not be revoked.  Just what that means is the rub, especially when it includes certain things that are not literally expressed in the text.  

Big "FU"

The polls suggested the Senate would be a nailbiter so if you can win by one or two, you can lose. So, okay. The presidency? Even the "horrible" predictions of Nate Silver was only 35%. Clinton seems to have won the popular vote and third party votes (including Stein in PA! shithead) was key in multiple states. Sad and angry electorate, some probably thought he wouldn't win. Brexit has been cited. We have this call for limits from a Never Trumper who associated with enablers of this state of things. Not quite kumbaya on how principled he is. More here. Not a big fan of the beginning of that post either. 16 years. Same shit. Worse.

NFL Sunday: One Step Closer to Bryce Petty

Early games alert. NY teams played same time and both game were sloppy. NYG late gave Eagles chance to make up a large deficit (multiple fourth down flubs burned Philly) but survived. Jets game turned on a return for a touchdown after their penalty forced a re-kick. Detroit hit a 58yd at the buzzer after having less than 1/2 minute to score and won in OT. Vikings 5-0 start looking long ago. Meanwhile, Comey says "nevermind." Schmuck.

Update: Packers lost, reflecting Vikings are in a weak division. AFC West have three teams with six wins; rest of divisions have a lot of mediocrity with a few superior teams total. [Oakland won, again not doing so totally pretty. Helped future tie-breakers for division.]

Make It Stop, Please

Emails again with repeated evidence Comey at best did enough to deserve to be fired for incompetence. Make it about her, go ahead. OMG. Is it over, yet?!

Gregory Lawler Executed

Supreme Court debate questions involved guns (HRC says gun regulation okay under 2A) and abortion plus HRC saying the Senate should confirm Garland (if they don't by January 20? not addressed) while Trump said RBG was mean to him. None on death penalty even with the subject matter due to occur by end of day. The execution itself involved use of a AR-15, the guy on death row for about twenty years. Failed challenge based on his autism diagnosis.

Trump Tapes

TPM has some good analysis, including how what is on the tape does not only reflect the man but his actions. The end game for Republicans now is to try (up to a point; some minority will go further) distance themselves but still seek to retain control of Congress. This can't be allowed. They made their bed and simple justice warrants they lose. But, it still looks damn close. BTW, you know the media (MSNBC was up late live) LOVE this. Finally, some said HRC should focus on herself more than being anti-Trump. Had point, but darn, he makes it hard.

Update: Bottom video. Wow. She ices it. Plus, everyone has BIG possibles -- PENCE OUT! TRUMP OUT! LOSE HOUSE! Eh. Calm down. Happy with comfortable Senate, closer House. There is a month. OTOH, "TO BE CONTINUED" feel here. Still, think there might be disappointments. Still, Garland in? Would be a pretty big gesture. Guess too late though.

Hillary Clinton Slogans (One Version)

If I had to guess the Hillary Slogans, they’d something like:

•  Muscular Diplomacy as a first resort, Sane Limited Intervention as the last. (Not my favourite.) 
• Sensible Economic Fairness (restrain the bad, support the good esp. at the bottom) 
• Woman and Girl Issues Are Core * Social Justice Requires Listening and Respect.
•  No One Will Work Harder For Everyone Something like that. 

(Just off the top of my head. If I did it again, I’d get a slightly different mix on domestic since there’s so much there.) (This is the positive message I’ve gleaned from her campaign.)

ETA: I would quibble with a lot of this or whether these are the right ones. She has a lot of policy thoughts. And detail is her style.

I'm sad

I am with her for three reasons, in this order: Trump is a clusterfuck, my party's platform and Clinton has intelligence and experience (including dealing with Republicans). Her flaws are also exaggerated. It's sad #1 isn't enough for more people. Now we have this: "Nation's largest police union endorses Trump." Including talk of how he is a "proven leader." WTF? Why should I complain when people protest police if your leadership is for a racist asshole?

Summer Orders

It is summer, but things are not totally at a standstill Supreme Court-wise. The second order day was basically as the first but there was a small thing of note. Also, some action in the Texas case, showing perhaps the judge wasn't 100% off regarding slip-ups. As I referenced here, some do think Garland isn't DOA quite yet. Yeah, I'll belabor that. Don't exaggerate.

Democratic Convention

Michele Obama's speech was the highlight of the first night, but there were many speeches and appearances like this too that impressed. Dems are imperfect (but email leak thing is so overblown and a lot of private material leaked are very concerning) but I am quite willing to stand up as one. And, sometimes, they make you proud. Other side is embarrassing.

Update: Bill Clinton had the second and Biden/Obama (Kaine was charming) the third. Clinton started slow, but had a pretty good speech. Speechifying probably not her main thing as compared to the others. Parents of killed soldier were the clear stand-out.

Trump and American Moral Leadership

TRUMP: I think right now when it comes to civil liberties, our country has a lot of problems, and I think it’s very hard for us to get involved in other countries when we don’t know what we are doing and we can’t see straight in our own country. We have tremendous problems when you have policemen being shot in the streets, when you have riots, when you have Ferguson. When you have Baltimore. When you have all of the things that are happening in this country — we have other problems, and I think we have to focus on those problems. When the world looks at how bad the United States is, and then we go and talk about civil liberties, I don’t think we’re a very good messenger.

Someone cites this and is willing to "embrace the idea that American democracy has nothing to offer the world." 

When dealing with tools, it's hard to accept that they do at times say something right or represent overall sentiments that have some sort of bite. And, that applies especially for the likes of Trump.  But, some do think we shouldn't be the "policeman of the world," we should address our own problems and when we try otherwise, we screw up. There is some truth to this; it's a matter of scale.  And, there are various ways to do things, other than directly preaching to foreign leaders.  Plus, in the long run, supporting human rights and democracy benefits us too.

The U.S. still provides some guidance to the world (e.g., our belief in constitutional limits and judicial review, if not our presidential/electoral system in all respects) and has a role to play. And, the Corruption Perceptions Index suggests all things considered (our size and scope of power isn't quite akin to New Zealand or Denmark), the U.S. is doing pretty good.  Still, limits and humility is a lesson to be learned, even if promoted by Donald Trump.  Anyway, especially given the religious sentiments of some of them, think many of his supporters will not want to come down from the "city on the hill" too much.

Anyway, interesting historical footnote regarding Tim Kaine, in particular, his wife:

Holton's governorship arguably is best remembered for his response to a court-ordered school busing controversy during his first year in office. The Holtons voluntarily enrolled their school-age children in predominantly black Richmond public schools. A photo of the governor escorting his daughter Tayloe into John F. Kennedy High School on Aug. 31, 1970, made the front page of The New York Times.

"Tayloe" being his wife's (Anne Holton) sister. Accounts have Anne Holton retain her maiden name, including reporting on her current job as the Education Secretary of Virginia. Will her name be an issue like Hillary "Rodham" once was? Her past efforts to promote children's welfare might be one more thing that appealed to Hillary Clinton, given her own work in that area. Anne Holton has an impressive resume, including as a local judge.

The more I read about Tim Kaine, the more he seems like a fine vice president pick. His appeal in swing states, including his own (Virginia) and Florida (speaks Spanish, good campaigner, wide support) along with a comfort level with HRC are but two. His stance on the issues, even if not perfect lefty (shocker that), have repeatedly been honored by progressive publications and personnel. One thing cited in the coverage is his support of a new AUMF.  Sounds like an important matter of checks and balances to me. 

Clinton/Kaine

Waited to the end of the day to announce the expected. Some rather someone else but Warren/Booker (both Republican governors) should stay in the Senate, Perez has only support staff executive experience, etc. Kaine has a lot of executive experience, VA has a Democratic governor, he's personable, speaks Spanish and overall sounds like someone progressives should like. Clinton is "safe," but he's pretty darn good regardless.

Racial Unity?

Yeah. Good message. Comment more on a criticism of Hillary Clinton here but find the criticism tiresome. Yes, I'm a white guy answering a black woman. She's still tiresome. Note in connection to RBG, don't bluntly say that there, since it's best not to be 100% openly honest all the time without "illusions and myths" being the result. BTW, Pence is an enabling asshole.