Every Single Republican Senator Responds To Five Dems Brief in Gun Case

And Also: After sweeping the Indians, the Mets were swept by the Braves and Cubs (#2 Wild Card leader, now over them by five).  They followed up with a pitching duel vs. the Phillies ace that was broke by ten runs in the last two innings.  Losing streak over and Mets fans (with five more games vs. them and later on ten vs. scrubs) can continue to believe. I'm a tad tired of it all myself.  I'd add that it being September is a bit amazing. Time flies.

Both sides do it alert. 

Social media pundits, constitutional law professors, mainstream journalists, and conservative politicians are all agog about a brutally honest amicus brief filed in a Second Amendment case by Democratic Senators Whitehouse, Hirono, Blumenthal, Durbin and Gillibrand. Republican Senator Lindsey Graham called the brief  "an extraordinary threat from one branch of government to another."

I think Prof. Segall (who is a nice guy and I engage with him on Twitter too) goes somewhat too far with his takes but his general one here to me is basically on point.  A sort of Never Trump type with my first name is all concerned in comments and I respond too.  The focus on the so-called "demagogue" nature of the signatories is particularly tiresome. First, Sen. Whitehouse (the counsel of record) is simply not one. It is unfair to provide that label in respect to his long record speaking out against dark money in ideological battles in judiciary nominations and so forth.

[Leading with that and tossing in that they stand out among other senators in that category (and as to trustworthiness) is also petty. Inclined to substantively respond, even when just letting some things be, I cannot say that the adjective is totally off the mark.  At least three of the five* are known to be outspoken and ideological -- they are politicians -- but even on that front, that particular word is crude. But, the person is a conservative who even given the current leadership apparently simply cannot accept that there is actually a time for such things. So it goes.]

The amicus brief involves a quirky New York gun regulation that seems like a prime way -- after Kennedy -- for the Supreme Court to come back to the Second Amendment.  Just what SCOTUS will do with the law is unclear and it is even possible Breyer/Kagan would find a way to negotiate some sensible compromise. But, the state changed the law (loosening the restrictions) and the whole thing seems moot.  As the brief notes, as a matter of law -- even granting there is no true "neutrality" here -- keeping this case active is dubious.  It looks and is an ideological effort.  This is "honest" and to the limited degree this sort of amicus brief can be useful, nothing is wrong with it even if some sacred cow is targeted too.

Out  in  the  real  world, Americans are  murdered each day with firearms in classrooms or movie theaters or churches or city streets, and a generation of preschoolers is being trained in  active-shooter survival drills.  In the cloistered confines of  this Court, and notwithstanding the public imperatives of these massacres,  the NRA and its allies brashly presume, in word and deed, that they have a friendly audience for their “project."

If one does the work, one can probably find other amicus briefs signed by at least a few (only five here though four do serve on the Judiciary Committee) that particularly target some ideological interest group.  [The "work" part often comes to mind.  This brief has received significant attention. Did anyone provide examples of other briefs that members of Congress signed to those not aware that they regularly sign amicus briefs?  Put aside some that at least a handful signed that has more bite?  I repeatedly have such questions. Discussions tend to be incomplete.]

The "brutal" part is not only the visceral nature of the attack on the NRA here, but the "friendly audience" business. The discussion of the Federalist Society's involvement in the judicial nomination process itself is a sort of subtweet (well the Kavanaugh confirmation fight is directly cited) to multiple members on the Court. Then, there is talk of "bare partisan majorities" (the professor linked rather us talk about "values" but there does seem to be overlap here) and a direct rejection of Roberts' talk of "balls and strikes."  Noting this comes off as a bit personal, what part is untrue?  The gaming of litigation isn't present on one side, but one side does control the Supreme Court at this moment.  (The brief cites Roberts' dissent in the same sex marriage case accusing the majority of not resting on the law.)

The  Supreme  Court  is  not  well. And the people know it. Perhaps the Court can heal itself before the public demands it be “restructured in order to reduce the influence of politics.” Particularly on the urgent issue of gun control, a nation desperately needs it to heal.

The brief quotes public polling to show that a majority of the public now thinks the courts are too influenced by politics and should be "restructured" to address that.  The brief ends on that note to emphasize that still hearing this specific case would send a horrible message.  But, it also underlines for some how blatantly the senators are "threatening" the Supreme Court. As the professor notes, it is unclear how scared they are that five senators wrote an amicus brief.  It is unclear how much even a majority of the Senate doing so would affect them. OTOH, that would be a lot more notable than five members of the minority party, including an also ran POTUS candidate. 

And, every single Republican senator, led by the Majority Leader of the Senate (fourth in line to the presidency, leader of the effort to secure the conservatives' fifth vote) did just that.  They signed a letter to the Supreme Court, discussed/linked here, in response to the brief.  It spoke of "several of our Democratic colleagues" (that would be five) and how they "openly threatened" to pack the Court.  How they would manage this is unclear.  The letter speaks of threats to judicial independence but then the amicus brief had the same message.  It warned of how ideology over law was ruling the day.  The party that left the Court with eight members for over a year preaching this message is a bit rich.

The letter is repeatedly blatantly partisan.  "Democrats" are the target. They "peddle" things though it is not "mere pandering" but a direct immediate threat. Republicans should know about true threats here.  Their concern about "opportunistic politicians" here is again rich. Sen. Whitehouse et. al. are addressing general concerns that are not just concerned about the moment or winning political campaigns.  And, the net message is fairly similar the other way.  If the Supreme Court actually does declare the matter moot (though they insist they are not taking a position), the message would be that they are giving in to threats.  As to Republicans not supporting packing the Supreme Court later on, sure.  They already did. 

[The letter responds to an amicus signed on by five Democrats in a way that provides a general attack on Democrats in general, including those running for POTUS.  The amicus is tied to a specific case. The more general statements by people like Buttigieg are not.  They are general policy proposals which are in the bailiwick of the political branches. A basic blatantly partisan statement addressed specifically to the Supreme Court on such a subject is rather dubious.  It goes a step past a flourish tied to a specific case that arguably should be declared moot because the only reason for it not to be seems to be as some sort of special interest issue vehicle or at least the concern that is the appearance of the matter.] 

Every single Republican signing such a letter, even if you think the amicus of five senators went too far, is not "both sides do it" material.  It is blatant partisan activity.  Five senators, with a lot of instigation, to me were right to sign that brief.  I'm not going to take the vapors.  Even here, no need for smelling salts.  But, it definitely is rather blatant and worthy of special note.  It is rather hard to take given what they did as well.  Again, the justices might not care though one or more might care somewhat.  Realistically, this level of battle has some consequence.

Anyways, both sides (or "the Senate") do it is b.s.  One side is a lot worse. Prime example.

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* After being unable to get into the third debate (other than Tulsi Gabbard and a bunch of white guy also rans, it looks like mostly everyone will), Sen. Kirsten Gillibrand gave in to reality and suspended her presidential campaign.  This is a bit sad but not too surprising. Her campaign thinks the whole Franken thing (a bs thing that a loud few continue to whine about online etc.) was a major reason here and some are inclined to agree.

As I and others note in comments to such threads, it seems more a matter of her not being able to find a place is a crowded field, one with multiple women (women's rights is a basic concern of hers) and Biden (if he wasn't in the race, there would be let's say more pie, including perhaps for an established pol who made being anti-Trump a key part of her campaign while still arguing she has the ability to work across party lines).

She has an "insider" taint to her that probably hurt, including a few moves (such as tempered response to an attack on Rep. Omar) that bothered the few who were paying attention.  KG had a bit of pol vibe, fair or not.  Early on, especially given her anti-Trump record and some feminist bona fides, I was a big fan.  I saw her kick-off in NYC in person.  But, with Warren and Harris (to me Klobuchar is a reasonable option but few seem to be interested) and her not getting much traction, I basically moved on. 

Founding Faith

And Also: Memorial Day -- honoring those who died in wars -- is upon us and to me the best way to truly honor that is to promote peace.  Trump wants to go another way.

She claims that Christianity teaches “free will” and, as a result, laws preventing a women’s choice to abort a baby are not Christian.

I respect John Fea, an evangelist who teaches history and dissents from the current pro-Trump sentiment among evangelist. After all, he is even a Mets fan.  But, move past the "baby" part (many don't think an embryo in early pregnancy, where most abortions occur, is a "baby"), his denunciation of Sen. Gillibrand's "wacky" position is rather off base. If he is upset at simplistic statements of theology from a politician, perhaps he can be consistent and denounce when such generalists make simplistic economic statements or whatever.  And, compare the statement here:

Religious bodies and religious persons can continue to teach their own particular views to their constituents with all the vigor they desire. People whose conscience forbids abortion are not compelled by law to have abortions. They are free to practice their religion according to the tenets of their personal or corporate faith. The reverse is also so now true since the Supreme Court decision. Those whose conscience or religious convictions are not violated by abortion may not now be forbidden by a religious law to obtain an abortion if they so choose.

So wrote The Baptist Press' Washington bureau chief right after Roe v. Wade was decided. Catholics for Choice, reflecting the beliefs of many of that faith (at least people who surely think of themselves and are treated as), believe that their faith includes free will and the personal choice to make that decision.  Many Christian sects believe that abortion, at least in some cases, is a moral choice that does not violate Christianity and that part of their faith is individual choice.  In 1971, the Southern Baptist Convention (after noting some "Christians," no scare quotes implied, had a more open-ended view) resolution on abortion that included this:

Be it further RESOLVED, That we call upon Southern Baptists to work for legislation that will allow the possibility of abortion under such conditions as rape, incest, clear evidence of severe fetal deformity, and carefully ascertained evidence of the likelihood of damage to the emotional, mental, and physical health of the mother.

This reflected the moderate abortion reform of the day. A few states basically completely liberalized abortion laws to the extent shown in Roe v. Wade. Others basically pushed for “therapeutic” abortions that basically overlap with those categories. The last is an open-ended understanding of "health" and though "carefully ascertained" has a touch of "let's not go too far here," it is unclear where one draws the line there.  If a women doesn't want to have a baby (again, merely being pregnant is not deemed to have a baby in the minds of many), forcing her to do so is likely to damage her "emotional, mental, and physical health." 

As noted in Founding Faith: Providence, Politics, and the Birth of Religious Freedom in America by Steven Waldman, James Madison (whose first elected turned on the evangelical vote) more than Jefferson understood the power of the "tradition, ritual, and sheer nonrational spiritual power of faith." This is not to say that "religion" can be a more rational affair as someone like Thomas Jefferson and others think.  But, the term does have those aspects as a general matter. To the extent that a non-theistic ritual, such as a marriage, has a "religious" component, we see this. Likewise, many Jews might basically be atheists, but honor tradition. Finally, there is a certain aspect of human existence that is not led by mere reason. We see this in everyday life in matters not related to religion when observing basic human affairs. Limiting our actions even if they might not seem "reasonable" would be rather oppressive.  Even many atheists recognize this.

As noted in that book, religious liberty was developed in this country for a variety of reasons. There was a basic understanding that religion was a necessary part of life, in part because few doubted their was a God and an an afterlife.  The science of the day along with years of social conditioning made it not surprising that God was seen as logical.  It is more complicated to figure out a purely rational argument that a "watchmaker" God has to be concerned with our well being. If this is granted, an afterlife and final judgment can be rationalized.

Religion was seen as necessary for a good life and for good citizens. If used in a broad sense, including a broad view of "freedom of conscience" (a term often used and assumed to overlap with belief in God), this can be granted in some fashion.* Anyway, religion is an important aspect of human existence and religious freedom is rightly deemed essential. This is so even if you think some religious beliefs are absurd.  The pragmatic aspects of accepting religious diversity and respecting diverse groups in the book is cited as a major concern of George Washington during the Revolutionary War.  The fear of Catholics was particularly uncomfortable when trying to get the French on our side.  This comes up today in various forms.

Thomas Jefferson supported religious freedom largely because he saw it necessary for freedom of thought. James Madison also was concerned about the problems of government corrupting religion, including in practice favoring certain religions over others. Washington and John Adams accepted some mixture of church and state, the former especially concerned however to do so in a pluralistic way.  The book at one point says the 99% of the population was Protestant.  Things are a lot different now and even establishments that honor "God" can be problematic these days. At the very least, pluralism requires more strict rules. 

The book spells out that not only did religious liberty concerns help influence the American Revolution (both as an incentive to rebel against England specifically and justifying rebellion in principle), but there was a dark side as well. Early settlers saw "free exercise of religion" to be necessary because so many did not follow God's will appropriate and thought that meant setting up colonial settlements that discriminated against such groups.  Anti-Catholic sentiment (in part since the pope mixed church and state -- Catholics were loyal to a foreign state, not England) was a major influence.  Our constitutional system has a dark side and not just in the context of slavery and Native Americans. 

And, part of the First Amendment was to give states discretion to favor certain religious beliefs, though even there, by 1791, we were talking fairly benign establishments as compared to the likes of Saudi Arabia.  Let's not go too far there. It took until the mid-20th Century to overturn a requirement that one took an oath that they believed in God to become a notary public. Various states favored Christians or certain types of Christians (such as belief in the trinity).  In the 19th Century, Catholics were discriminated in various ways, including in public schools.  Finally, the Fourteenth Amendment itself showed the need of limits on states.  The opening suggests we have a ways to go.

But, religious freedom remains a public good, especially if it is taken in the right frame of mind.

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* A recent post discussed how a "prayer" at legislative gathering need not by definition involve appeals to God.  "Religion" as a whole can and should be seen in such open-ended terms.  Some say they are "spiritual" but not "religious" in part because the second term has to them troubling implications like a rule based approach or so forth. There very well might be some differences there.  Ditto those two things and "conscience."

But, religious liberty includes all and parsing the things to me is rather complicated. A good life very well requires as a general matter some system of values and belief that you are bound by it for some reason. This tends to include some sort of rituals (like marriage) and other things that has religious implications.  The final aspect -- an afterlife and judgment -- is somewhat different. (One might say "rather" different though life itself can bring its own karma.)  But, many people -- unlike belief in some sort of god or gods -- these days do not believe in that anyway.

Freedom of religion includes the right to choose here, something that history showed has a pragmatic value. 

The John S. McCain Opioid Addiction and Prevention Act

ETA: The Disability Justice Initiative tweeted today this: "Props to @SenGillibrand staff for sitting down & listening to members of the #disability community today. We look forward to continuing the #PainManagement conversation in a way that limits misuse without harming the #disability & #ChronicPain communities."  

Senator Gillibrand received some strong negative pushback when she announced support of "The John S. McCain Opioid Addiction and Prevention Act"  (he sponsored it, thus the name, but such naming is tedious -- how could anyone oppose something named that?).  She got so much pushback (and not just on Twitter) that she felt it necessary to respond.  Not surprising when people cited it as simply disqualifying (anyone who did so was not really too gung ho for her anyway, I would argue).

[One person responded to a comment I made about it by saying it would likely "kill" friends of his.  Yeah.  Tad overheated there. I can say that since (unlike my Twitter and blog comments some places) no one actually reads this blog. Reading into the law, including my own state's policy, how exactly will this proposal "kill" people above and beyond current practice?]

What is the problem here?  Looking at the summary, we are told that  the "bill would create a seven-day prescription limit for opioids so that no more than a seven-day supply may be prescribed to a patient at one time for acute pain."  The term "acute" received some pushback since the inference from references to wisdom tooth removal and the like was that it was something that would be completed in seven days.  This suggests the limits of official Twitter snapshots of proposals, perhaps.  Anyway:

Acute pain is a type of pain that typically lasts less than 3 to 6 months, or pain that is directly related to soft tissue damage such as a sprained ankle or a paper cut.  Acute pain is of short duration but it gradually resolves as the injured tissues heal. Acute pain is distinct from chronic pain and is relatively more sharp and severe.

That is just a quick find but gets to the open-ended nature of the term.  But, the summary of the provision (contra to one Twitter reply that I myself replied to without getting a response)  says that the person still can obtain more supply.*  Gillibrand cites her own state as a model of the law, something reply after reply seemed to skip over, and I looked it up.  Yes:

TO FURTHER REDUCE OVERPRESCRIBING OF OPIOID MEDICATIONS, EFFECTIVE JULY 22, 2016, INITIAL OPIOID PRESCRIBING FOR ACUTE PAIN IS LIMITED TO A 7 DAY SUPPLY.

A practitioner may not initially prescribe more than a 7-day supply of an opioid medication for acute pain. Acute pain is defined as pain, whether resulting from disease, accidental or intentional trauma, or other cause, that the practitioner reasonably expects to last only a short period of time. This rule SHALL NOT include prescribing for chronic pain, pain being treated as a part of cancer care, hospice or other end-of-life care, or pain being treated as part of palliative care practices. Upon any subsequent consultations for the same pain, the practitioner may issue, in accordance with existing rules and regulations, any appropriate renewal, refill, or new prescription for an opioid.

The proviso regarding chronic pain is also said by Gillibrand to apply here in some form (we don't get a link to the actual bill though given McCain supported it, some form of it should be around, right?). New York provides a FAQ.  One question specifically answered says that it is not necessarily the case that an in person visit is necessary to obtain a refill. This was an important concern. If a physician would otherwise supply a greater supply, would they not also extend without an additional visit?  The concern seems to be that many would be wary.  Thus, an essential issue here is detail.

Gillibrand voiced surprise at the opposition in part since she did not just make this up on the fly. It was looked at askance that she was co-sponsoring this with a Republican though one that from time to time comes off as sane.  As noted in the reply:

I wrote this bill in consultation with many experts and groups, including researchers, advocates, doctors, patients, and families of patients. It was based on CDC recommendations — and reflects a movement across the nation in which 15 states, including New York, already have laws that limit opioid prescriptions for acute pain.

One thing highlighted by the speakers at her rally yesterday is that she listens. I respect supporters who say this about her and take this seriously:

I have heard this level of criticism, and many of the concerns raised by patients and disability advocates were issues I had not previously heard. And I hear them now. ...

I am listening. I would be more than happy to meet with you to hear your ideas about how to make this bill better — and to ensure that it does what it was originally intended to do without harming patients. 

The proposal might simply be misguided. Perhaps, we should simply trust physicians here and that this is an unnecessary attempt to show she is properly fighting opiate addiction.  The breadth of "acute" pain alone suggests a certain gratuitous nature in requiring weekly prescriptions, even if merely by phone or whatnot. But, without more, even then, it seems a limited misstep. I respect those who are concerned that this will make it harder for people who need pain medication. This is not a trivial matter and it's part of a serious wider concern. Nonetheless, any number of policy tweaks have possible negative effects. Is this unique?  A reason not to support her?

Anyway, I do wonder how much it compares to my own state's policy. It turns out my own assemblywoman is on the Standing Committee on Alcoholism and Drug Abuse.  I am curious if she has an opinion of this proposal and if it overlaps with state policy. I sent an email to her but have not received a response.  It is granted that I could call up her office and this on me to some extent but if the office has a means to constant, they should be able to respond. Also, the questions are of a sort of detailed quality that the likely aide in her district office very well might not be able to answer.  Yes, I feel uncomfortable personally asking such things too. Kudos for those who do so.

I will try to continue to keep abreast on this issue. Doing a bit of due diligence like done here is not too hard and can be helpful.

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* The coverage might confuse people. One publication noted that the requirement covers "the initial treatment of acute pain" but then "medical professionals would have to confirm they would not provide refills to those prescribed opioids for acute pain." 

I take this to mean that each seven day supply is separate so not a "refill" but perhaps a person can read that to mean it is a one and done deal. Serial weekly supplies amount to a form of "refill" even if by form the doctor (without needing a new examination) gives a new script each time.

Kirsten Gillibrand

Went to see her official send-off outside the Trump Tower near Lincoln Center (NYC) with various good introduction speakers including her old roommate Connie Britton. Like her partially given her long experience fighting the good fight (accepting an impressive 30 something newbie is a bit of an insult and stop comparing people to the VERY low Trump bar) in D.C. Kamala Harris is new there. Warren not as much but I think she would do better staying in the Senate making policy. All three are impressive though. Gillibrand focused on domestic matters; she needs to give a good foreign policy speech. Nothing on judges or the Electoral College (Warren suggested disposing of it.) Is it 2021 yet?