Roe: Loyal To Precedent (Part II)

And also: Interesting victim impact evidence capital case discussed here.

[The first half of this series explained how Roe fit with precedent, which is often not pointed out by its critics. This entry will use Justice White's views to show how selectively opposing one aspect of the rights involved is in fact quite arbitrary.]

Justice White dissented in the abortion cases along with Justice Rehnquist, but only the latter justice was broadly opposed to the principles involved. Justice White's concurrence in Griswold expressed in emphatic terms his support of privacy rights:

It would be unduly repetitious, and belaboring the obvious, to expound on the impact of this statute on the liberty guaranteed by the Fourteenth Amendment against arbitrary or capricious denials or on the nature of this liberty.

He also basically supported the sentiments of other justices in that case that the alternative could be forced contraception. So why is abortion different? The nature of Justice White's concern as well as the misleading nature of his argument is suggested by this excerpt of his dissent in Doe v. Bolton:

At the heart of the controversy in these cases are those recurring pregnancies that pose no danger whatsoever to the life or health of the mother but are, nevertheless, unwanted for any one or more of a variety of reasons - convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc. The common claim before us is that for any one of such reasons, or for no reason at all, and without asserting or claiming any threat to life or health, any woman is entitled to an abortion at her request if she is able to find a medical advisor willing to undertake the procedure.

In U.S. v. Vuitch, the majority opinion was written by Justice Black, who was no liberal constructionist -- he dissented in Griswold, for instance. Nonetheless, the majority's stance on "health" was rather broad and held that the statute met: "the general usage and modern understanding of the word 'health,' which includes psychological as well as physical well-being." Some of Justice White's list arguably fits into that definition.

Furthermore, the Texas statute only allowed abortions when the life of the woman was at risk. Therefore, "the heart of the controversy" was surely not that broad. Likewise, the "common claim" was not that women wanted abortions for "no reason at all." Therefore, something more than merely concern for the unborn (a concern involved with some contraceptives used at the time -- IUDs) is suggested.

An equal application of the rules is just not involved in such reasoning (and hyperbole). In various cases, Justice White accepted that privacy concerns were important, so important that various laws had to be declared unconstitutional. A reasonable argument could be made that Roe was too broadly written, that some more limitations on abortion were justified.

Nonetheless, it simply is not so that the argument made was so ridiculous. In fact, the very fact that no "other surgical procedure" was given such special scrutiny, even when life was involved, suggested [see Douglas' Vuitch opinion] a certain bias. The same appears when two parent notification provisions were examined, again abortion was specially treated, even when life and death was potentially involved (e.g., surgery and military service ... and childbirth).

The special concern is currently supplied because an abortion is being considered. Clearly, it is not a matter of health, though since Texas did not even prosecute a self-abortion, the once dangerous nature of the procedure might have been an important factor. Roe takes special care to show that the unborn was not protected as a constitutional person, and no justice suggested otherwise. Thus, it is constitutional in the eyes of them all to allow abortions.

A law that seriously infringed the right to have an abortion, however, would interfere with various rights that many decisions held as fundamental -- some clearly touching upon enumerated constitutional rights. And, the countervailing reasons amount to moral opinions touching upon "potential life" (the opinion might have said "potential constitutional persons") interfering with such rights. Moral opinions of great dispute among various religious faiths, making selectively picking and choosing among them on such fundamental questions especially troubling.

Justice White's later expansive discussion of why abortion is different does not solve such concerns:

one must at least recognize, first, that the fetus is an entity that bears in its cells all the genetic information that characterizes a member of the species homo sapiens and distinguishes an individual member of that species from all others, and second, that there is no nonarbitrary line separating a fetus from a child or, indeed, an adult human being. Given that the continued existence and development -- that is to say, the life -- of such an entity are so directly at stake in the woman's decision whether or not to terminate her pregnancy, that decision must be recognized as sui generis, different in kind from the others that the Court has protected under the rubric of personal or family privacy and autonomy. Accordingly, the decisions cited by the Court both in Roe and in its opinion today as precedent for the fundamental nature of the liberty to choose abortion do not, even if all are accepted as valid, dictate the Court's classification.

Justice White is right to suggest that the presence of the unborn requires some special treatment, but each privacy/autonomy case is likely to have its special concerns. For instance, medical contraceptives require special care and more government regulation than the viewing of sexual materials at home, which itself must meet concerns about potential minor viewers. Nonetheless, Justice White's reasoning cannot be used to ban abortions without several difficulties arising. Two major issues are postconception contraceptives and the life/health of the woman.

Push come to shove, it is unclear if Justice White would uphold a law against "morning after pills" or banning abortions necessary for protection of the health of a woman. As noted, Justice White only avoided the dangers of the Texas law by exaggerating the alternative -- debating what "health" means suggests just how nuanced (or extreme) his reasoning turns out to be. Also, would he support forced abortions or penalties for those who do not have them? Why? After all, putting aside his above description, states can still allow abortions. In certain cases, concern for life might quite rationally include not allowing such life to be born.

And, finally, as suggested by Justice Stevens, the "no nonarbitrary line" argument tries to prove a bit too much unless again he would oppose various types of contraceptives or not take into consideration the moment of the pregnancy when determining if a law is rational given concerns of the health of the woman. Also, to the degree the line is arbitrary, it is essentially a value judgment best left to individual choice not the state. The importance of the choice here only highlights this fact. Justice White wants to pick and choose his support of this principle, but this just does not fly.

It would be hard to target this one right without also harming any number of other rights. Those who are willing to do so, such as Justice Rehnquist and Scalia, can fairly easily be challenged.* Others want to ignore why the right to choose an abortion cannot be separated from other liberties without a not small amount of arbitrariness going on. And, the concern for the unborn does not save them either, except as to the breadth of the right involved.

This suggests why Roe v. Wade was a 7-2 opinion and the majority of the lower court opinions agreed with its general principles. And, why -- especially given how forthcoming opinions clarified just what it meant -- they are worthy of our respect as well.

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* Justice Thomas appears to be in this group, but has made it known that he supports a more libertarian regime of uncertain reach. For instance, compare his willness to join an opinion involving rights to raise one's own children with Justice Scalia's support of the right personally, but not constitutionally. The opinion cites a dissent, interestingly joined by Chief Justice Rehnquist, which supports a broad reading of the Privileges and Immunities Clause (14A) that would have done the job in Griswold.

Thus, we are back to the interests of the unborn child, or a debate over the breadth of the right. A right that generally speaking is quite "traditional" as a citation in an abortion case of a 1839 case (see footnote 33) respecting marital privacy. Concerns that the right to privacy is being read too broadly might arguably do (though few really want to take this argument too far) the trick, but the emptiness of the pro-choice argument suddenly becomes much less obvious than the emphatic opposition would want us to believe.

Gonzales Confirmed

And Also: I comment on some magazine articles about abortion and fighting terror here. Various great individuals, including Ossie Davis, recently died. One I vaguely knew personally. For them all, you lived well and shall be missed.

Republican senators argued that it was unfair to say Mr. Gonzales was personally responsible for the specific acts of torture and degradation at Abu Ghraib. That would be a fair defense if anyone were doing that. The Democrats simply said, rightly, that Mr. Gonzales was one of the central architects of the administration's policy of evading legal restrictions on the treatment of prisoners. He should not have been rewarded with one of the most important jobs in the cabinet.

-- NYT

Alberto Gonzales was confirmed 60-36 with six members of the opposition party voting for him, the least in the history of Attorney General confirmations. The vote count basically matched that of Attorney General Ashcroft with two more Democrats supporting him and a shift in weight of party control (plus non-voting Democrats) explaining the shift from the 58-42 vote in that affair.

The six turncoats, who apparently think no standard of infamy in presidential advisors exists, included Sen. Lieberman (like various Republicans, his concern for morality being selective) and the usual suspects (it does not bode well that among them was the new senator from Colorado, who introduced him to the Senate). The numbers suggest one Republican (Sen. Burns of MT, but supported him recently) did not vote, but besides that, it was a straight party line affair.

This is sad, if expected. The sad and disgraceful defense supplied by the likes of Sen. Hatch (see comments per Lieberman) are telling: the Democrats are not just guilty of too much criticism given the respect deserved for those in power and the difficult decisions the times wrought, but there was just no merit to their claims. The argument that Alberto Gonzales played an important role in the very least to negligently promote torture was simply "outrageous."

[The Secretary of Homeland Security designee is no prize, but shows signs of balance and being his own man -- small ones, but they stand in contrast all the same. Dana Milbank also noted the "subtle protest" of a few Republicans during the SOTU. Small signs everyone is not a Stepford Wife.]

So it continues. We live in highly partisan times with the acts and words of the leadership only making matters worse, including by repeatedly putting forth choices that those of conscience simply cannot support. We spit at fate too much ... the bill shall be paid, and we will not always like the bottom line.

SOTU B.S.

Public Relations and Propaganda: The Bush Administrations' use of conservative columnists, fake news, and so forth has led to some controversy. This short report examines the controversy, while this proposed legislation would try to give the narrow limits a bit more teeth. Interesting.

The President shall from time to time give to Congress information of the State of the Union and recommend to their consideration such measures as he shall judge necessary and expedient.

Since the President will not really give such "information" without his B.S. spin and his judgment of what is necessary and expedient is similarly not worthy of much respect, I did not listen to his State of the Union Address. I also find his voice grating and his facial expressions nauseating, but that's just my personal bias. Others watched it for me, and remarks here and here might be worthwhile of your time. [President Barbie would have done better, as she did before.]

My title is taken from Slate's Today's Papers, which notes that a "number of the papers solidly compare and contrast the president's talking points with reality." When one editor was asked if anything said "strike you as objectively untrue," he noted:

Yes. Bush often describes a world whose features are all highly debatable, if not simply invented. He proposes "a comprehensive health care agenda" that will leave perhaps 50 million Americans without health insurance. Is that comprehensive in any meaningful sense? He promises big economic benefits from legal changes, "tort reform," that independent economists say cannot have more than a small economic effect even if enacted, which is not likely. [And] he promises to increase the size of Pell Grants, not noting that they have shrunk far below the level he promised when he came into the White House.

The Slate title centered on the S.S. part of his remarks, particularly glaring given his scare tactics when there really isn't a problem, and offering a solution that would likely just make the "problem" worse. The title is fitting, but just too limited.

SIGH.

Roe: Loyal To Precedent (Part I)

TV Bits: Conan O'Brien honored Johnny Carson last night. It was a tad weird to see "serious Conan," and he did not seem too comfortable in that role. Nonetheless, O'Brien did a good job as well, though his connections with Carson appeared a lot more tenuous than the other two. As to my ongoing Gilmore Girls Watch, last night's episode was a bit strange in that it had a whole bunch of character vignette type scenes, which were of mixed quality. It was a fairly good episode, though the continuance of certain annoying subplots marred it overall.

[In honor of Sen. Clinton's recent speech on abortion, generally well analyzed here, I offer a two part defense of Roe v. Wade. The defense argues that it was not an outlier, but fit intelligently into the precedents of the day. The second part will deal mainly with Justice White's dissent, which reflects those who are willing to accept some privacy rights, but feel abortion (and various other areas, including sexual relations) is somehow uniquely separate. It is unclear how this exactly is so, especially given how emphatic (and often sarcastic) such replies tend to be.]

The suggestion by some that Roe v. Wade, which declared it a constitutional right for women to be able to choose to have an abortion after a consultation with her physician (with various conditions allowed), was not an opinion that shot out of the ground like Athena from the head of Zeus.

A glance at precedent, lower court opinions, concurring opinions (and a law review article by a retired justice), and the abortion decisions themselves show this to be so. Sadly, such an examination is often not supplied, assisting the "anti-Roe but supportive of abortion rights per se" crowd. It also ignores history and possibilities to clarify what exactly went on here.

As Justice Douglas notes in his concurring opinion in U.S. v. Vuitch:

Abortion touches intimate affairs of the family, of marriage, of sex, which in Griswold v. Connecticut [was] held to involve rights associated with several express constitutional rights and which are summed up in "the right of privacy."

Griswold involved the use of contraceptives at home among married couples, while a later case applied its overall principle in striking down a law dealing with unmarried couples. Douglas' opinion as well as Roe itself cites various opinions that reaffirm that the Constitution in some sense protects rights touching upon family, childbearing, and marriage life (recent opinions protecting rights of illegitimate children had some relevance here as well).

He also cites a law opinion by retired Justice Clark that broadly read Griswold, suggesting it also applies to abortion decisions (as well as things such as determining one's diet) because the right to control over childbearing logically does not end at conception. Also, as will be noted below, the countervailing reason not to do so touched upon matters of religious belief.

Likewise, the unborn (as one lower court opinion noted, no matter how you define it -- a human being or a bunch of cells) traditionally has not been given protection of persons, surely not to the degree that it would trump the rights of those born. Lower federal and state courts that dealt with the question of abortion rights in the late 1960s and early 1970s generally also felt the right to privacy covered the abortion decision. As Roe itself noted, arguably in lieu of further analysis:

Although the results are divided, most of these courts have agreed that the right of privacy, however based, is broad enough to cover the abortion decision; that the right, nonetheless, is not absolute and is subject to some limitations; and that at some point the state interests as to protection of health, medical standards, and prenatal life, become dominant. We agree with this approach.

Where was this right of privacy found? Generally, it was considered to be a fundamental liberty inherent in our traditions, though various provisions of the Constitution helped determine its contours. For instance, various opinions suggested the abortion decision was ultimately a moral choice that was largely outside of the purview of the state. Quoting various authorities including Clark and psychoanalyst Erik Erikson, Justice Douglas' opinion in Vuitch noted that "[a]bortion statutes deal with conduct which is heavily weighted with religious teachings and ethical concepts."

Thus, he argued that the law involved (allowing abortions to protect the health of the mother) was just too vague because moral beliefs would complicate how it was applied. Ultimately, when Roe was upheld if somewhat limited in Casey, the fact a moral choice was involved was a central reason why it was left to the woman. One can see how the First Amendment is thus a factor.

Roe itself also hinted at equal protection concerns, explaining (as quoted in Justice Stewart's concurrence) how "the interests of a woman in giving of her physical and emotional self during pregnancy and the interests that will be affected throughout her life by the birth and raising of a child."

The majority opinion itself basically said that such concerns were "fundamental" ones, thus the protection of a fundamental right to choose not to have a child. This right was put in "privacy" terms, which in this context meant basic autonomy over certain basic matters, especially things such as family life.* The fact that anti-abortion laws prevented even married couples from having abortions suggest just how broadly such interests were infringed. The "liberty" aspect of the Due Process Clause was its starting place with a Ninth Amendment assist.

A third possible "textual home" (Ronald Dworkin uses this term) is the Fourth Amendment, which was referenced both by Justice Harlan** and three justices in Griswold itself (quoting him). Justice Harlan argued that the Fourth Amendment's reference of the "home" protected more than a property right, but the privacy of family life in general. Thus, various citations in cases of a private sphere of family life into which the government cannot enter.

This does not mean that the Fourth Amendment alone protected familial privacy, but it at least highlights its importance, which is useful when determining the unenumerated liberties (as reflected in the Fifth, Ninth and Fourteenth Amendments) protected by the Constitution. And, thus it is not just a search or seizure per se, but the general principle behind the amendment itself that we must obey. Again, Justice Harlan and others cite various precedents making this very point.

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* Dissenters have a tendency to willfully or negligently play with the word "private." For instance, Justice Rehnquist in his dissent in Roe notes that abortions take place in public clinics in the presence of doctors and so forth. This is not the point. The "privacy" involved is basically twofold: the right to make decisions of a certain intimate nature and/or to have control over one's person or certain areas/objects for which one has a reasonable expectation of privacy.

For instance, doctor/patient confidentiality suggests the private nature of the association, even if it is in a doctor's office. Likewise, AA meetings are generally private, even if many people are present. Finally, sure, we are not able to do everything in private. The long term neglect of spousal abuse suggests the dangers of absolutism. Nonetheless, as with other important interests, special care still is often warranted when "privacy" is involved.

** Justice Harlan's dissent in Poe v. Ullman (covering much the same ground as Griswold, but the majority there avoided ruling on the merits) is a judicial masterpiece that has been quoted by many opinions ever since (including Casey). It is a conservative defense of a broad reading of "due process" with Harlan's brief remarks in Griswold itself a rejoinder to those who feel the alternative is really so much better in practice.

The problem for certain liberals is that the opinion narrowly supports marital privacy, though its support of an evolving view of liberty as well as its basic principles can deal with some such concerns. It is unclear, however, if Harlan would have supported the striking down of a law against unmarried couples using contraceptives and/or an anti-abortion law. The breadth of the law involved in Roe, however, might have troubled him. Nonetheless, precedent guides, it does not force us to follow all its aspects.

Odds and Ends

David Letterman's tribute to Johnny Carson, beginning with a monologue that turned out to be all jokes submitted by the man himself, was very touching and clearly from the heart. It also helped those like myself who did not watch Johnny too often to remember just what was so special about the man. And, the two clearly had a special connection. Dave surely deeply respected the man as he surely does Regis Philbin -- the man Letterman argues is the closest person on television today as important and well loved.

Chosing Death: Michael Ross is a serial killer that asked Connecticut to execute him, possibly leading to the first execution in the state in forty-five years, making it about the time Ross (who was convicted in the murders of eight) was born. Ross said last year that he wanted to stop all his appeals so that the pain of his victim's families will end. This will not occur -- the pain is unlikely ever to truly be extinguished, though some of the family members might feel better once he is executed. We should not really care about death wishes of convicted serial murderers. Letting Ross feel better does not warrant diminishing society by executing him.

[The principle holds but the execution has been delayed because of suspicion Ross is not competent to make the decision, basically because the stress of death row drove him crazy. The argument in part suggested that the stress, not free will per se, led him to want to die. I do not gainsay the conditions can drive someone crazy, but choosing execution can still be a rational choice given the alternatives. It still would not require the state to do the deed.]

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It's How You Teach Them: A study sponsored by the John S. and James L. Knight Foundation has determined that many high school students are ignorant of and/or not that concerned about the Bill of Rights. For instance, seventeen percent felt that people should not be allowed to express unpopular views (nearly all teachers and principals agreed they should be), while seventy-five percent thought flag burning was illegal.

Since school children generally do care about free expression when it applies to them, clearly on some level they care about such matters. Likewise, when they feel schools unfairly target them (aka 'due process'). The problem is showing them just what is at stake, why this stuff should concern them. To show them how exciting and interesting this stuff truly is.

Many liberals are convinced that the public at large really does not accept the current regime. The assurance in their voices is a bit scary because the public really is much more divided and conflicted than that.* The genius of the administration and its allies is that it is able to take certain concerns and worries of the nation, not always the better angels of their natures, and use it to gain power and influence. These concerns and worries are potentially dangerous. The role of the loyal opposition must be to show that a different way is possible. Politics is about selling; truth and right helps, but it is not enough.

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* An article today concerning the problems many science teachers have respecting evolution suggests the complexities we must face. Studies have shown that as much as over forty percent of the population do not believe that humans evolved from lower forms of life, though some accept animals did evolve in some fashion.

This does not mean they all oppose teaching evolution in schools or want creation science to be taught along side in science classes. Nonetheless, an underlining concern is present, one that can be seized by crafty campaigns that support such moves. Another way is possible, though a small group will remain deeply opposed, but we do not help ourselves that much by ignoring the breadth of such concerns.

Values, History, and Movies

Update: The porn download case was the subject of an episode of Nightline, which I did not catch. One can view competing opinions on the case here and here. After reading an essay involving another aspect of morals legislation, I also let the author know about the case. She thanked me, but doubted if it would be adopted by other courts. I'm cautiously optimistic that some will.

I caught a bit of the remarks during one of C-SPAN broadcasts of a meeting of various candidates for DNC leadership. The concern for values was clear, including trying to frame various Democratic Party themes in value language. This is fine as far as it goes, since government involves value judgments, and many of the criticisms of the current leadership are ultimately ones dealing with how corrupt their values truly are. The tone and nature of the language alone suggests that the critics are speaking from their hearts, not solely as political opponents.

Nonetheless, it troubled me when Tim Roemer spoke of "Judeo-Christian" values and a more obscure candidate underlined how Democrats believed in God. Is this a requirement for being a party member now? Also, do Jews and Christians (whose "values" arguably are at times not soooo syncretic) really want some party official stating what their religious values (are "Judeo-Christian" values supposed to be religiously neutral?) might be?

I'd add that blacks remain an important part of the democratic coalition, a group that is disproportionately Muslim. Are we to assume J-C covers them too? Likewise, important voters and backers might be members of other moral traditions, and be turned off by such language. Is such blatant god (God) talk necessary to obtain those important swing and new voters?

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Talking about troubled, I was talking to someone quite troubled with how the U.S. government interned Japanese during WWII. She was not taught such things in school, but first really was informed about the matter when she saw a mainstream movie about the matter.* She also was surprised to learn about the intricacies of the wrongdoing of the Nixon Administration, learning about the matter while watching a documentary on the History Channel.

She was around my age while the Nixon events took place, but did not take much notice of them. The whole matter also troubled her, though such political skullduggery fit more with her cynical views about politics. The Japanese experience hit close to her basic beliefs about American values.

Much can be said about this, including that her experiences and views are surely not unique. For instance, the teaching of history leaves a lot to be desired, and the average individual really does not take much notice of much of the stuff that fills this blog. After all, they have families, careers, and ordinary everyday concerns.

This is not to say that many so-called ordinary Americans are not concerned about this sort of thing, but many are largely ignorant about many of the facts. Or, really do not want to accept the true magnitude of how their ideals were violated. Ignorance might be said to be bliss, if the alternative is to becry how our country put hundred of thousands in concentration camps or lied their way to war.

And, such matters -- simplified for those who might feel my analysis is a bit too patronizing -- help the powers that be, who twist the concerns and ideals of the American public for their own purposes. The future activities of those who challenge those now in power must take this into consideration, offering a competing viewpoint, one that helps our putative leaders to truly lead and guide their electors in the right direction.

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* Come See The Paradise, which I have not seen, but it received lackluster reviews. Movies are often not the best way to experience history, especially since entertainment aims often clash with authenticity and true complexity. Nonetheless, they have their place and can help inform and influence the views of the country about history. In fact, in various ways they clearly do, as the once popularity of Westerns suggested.

And, especially if care is supplied to prevent an excessive twisting of history (see, e.g., JFK and Mississippi Burning), this historical subject matter provides fruitful resources for film plots. Various nominees for Academy Awards alone suggest this. They also provide some good, if probably unintentional, comedy -- see various biblical epics, including The Bible.

Lizzie McGuire

Lizzie McGuire is a show on the Disney Channel that ended its run, but lives on in reruns. Overall, it is a fairly uplifting show for its targeted junior high school demographic, and one others can enjoy as well. [Good targeted fiction is enjoyable enough that other age groups enjoy the show too -- for instance, many young people like The Golden Girls, perhaps because of its bofoonish tone.]

The parents, for instance, are likeable characters with the dad played by one of the stars of Revenge of the Nerds. The 1980s guys who watched that movie can now see one of their um idols playing a dad just like many of them now are. This is one of the more successful examples of stars of yore now playing the dads to new generations of fictional characters. The use of a cartoon character to portray the thoughts and worries of the lead character also is a nice touch.

[As an aside, wouldn't it be nice if more shows and movies took the p.o.v. of the average housewife/woman? Desperate Housewives doesn't quite do it. In fact, many underrepresented character types come to mind -- how about a movie or show about an ordinary minister or priest, one a bit less sugary than Seventh Heaven (a nod of respect to the show all the same)?

A little known movie like The Favor (with Brad Pitt in an early supporting role) was worthy of some respect, if not that successful in the end, because it examined the mid-life crisis of a regular mom and her unmarried friend. Is this to be only the realm of little know indie films and movies on Lifetime? It also had a scene that took place outside of a church -- it is remarkable how The Simpsons is one of the few shows that make religion a fairly unremarkable part of the plot now and again.]

The show lost its way as the star grew into her teenage years, the first year or so being more down to earth. Lizzie herself appears more innocent and ordinary, while the later episodes suggest a more "in crowd" flavor that is not true to the character. The theme song also is sweet, including how they are "faking it," taking every day as it comes along, struggling along the way (thanks closed captioning!). I'd add that the Miranda character, who for some reason disappeared in the final season (also not in the movie), is a bit too giddy.

Iraqi Elections

Juan Cole's musings about the Iraqi elections appear largely accurate, but this is just my general feeling. I honestly have not kept real close watch on day to day affairs in the war zone qua nation of Iraq, depressed about the overall matter, and opposed on principle. For instance, it is a good thing that millions (after being told by the primary spiritual leader of the country that it was their religious duty) had a chance to vote. This is no small matter and worthy of a moment of joy. Nonetheless, as Cole notes, how the whole thing was handled leaves something to be desired. Likewise, lest we give el presidente too much credit, Cole reminds us that the administration was not always so gung ho about elections.

Ultimately, my overall sentiment is that both the ends and the means are problematic, so really we have sort of no win situation. Yes, something good probably will come of all this, partly because Saddam is gone and a more democratic system will be present, partly because the last few decades put forth a low bar. I would note that in some sense the Saddam regime was supported by the people, if only to the degree that they did not care for the immediate alternatives.

Imperfect as this might be, the fact no (real) elections were in place for fifty years (NYT figure) should be put in context. The suggestion that the people at large actually supported a war that laid waste to their country and killed tens of thousands (if not more) of their people is simply unfounded. Thus, the war itself was "undemocratic" as well as in violation of basic freedom.

Anyway, the fact that there are elections -- of the sort where one does not know the candidates -- should not lead us to ignore the corrupt means used to get us here. Using fraudulent and misleading evidence and arguments, our nation declared war on the people of Iraq, resulting in bloodshed and troubling divisions that will haunt us for some time (though it might the Iraqis, including the families of the dead, a lot more).

And, the ends left something to be desired as well. Is it really our role to save the people of Iraq against their will via a war that killed many of them in the process? Is such intervention really likely to improve the situation in the long term? And, yes, some more shall we say fiscal reasons factored in as well. To the degree I'm leaving something out, it probably is not anything that good.

So, yes, I hope for the best. I am not a heartless soul who wants bad things to occur so I can say "I told you so." It just is that with such corrupt means and ends, one is left with an empty feeling. The best result cannot be that good at all.

I deplore corrupt defenses

TV: Fittingly, under the radar comedy Grounded For Life ended its run yesterday without much fanfare, but with another amusing episode. Also, the USA mystery Monk has had two quite good episodes with the new assistant a nice fit. Finally, Gilmore Girls still has not had a good episode, just a few okay ones (including last Tuesday). I fear it might have jumped the shark. It had that "going through the motions" feel, including a stock "Paris moment" and stock cute "Lorelai getting cutesy emotional moment." Sigh.

Heather MacDonald's defense (printed in the Wall St Journal) of the administration's interrogation policies is spoken with respect by various sorts who want to find a counterpoint to those critical of their policy. Apparently, the President's comments are not enough: "Listen, Al Gonzales reflects our policy, and that is we don't sanction torture. He will be a great Attorney General, and I call upon the Senate to confirm him."

There is always the reminder that he has a lovely personal history and is a nice person (oh, and opposing him -- see Dr. Rice -- is racist), which apparently qualification enough to be Attorney General. Or, his great legal background, amounting to be Dubya's personal lawyer and a relatively short stint as a run of the mill lawyer at some fairly mundane law firm. An AG arguably should be put to a higher standard:

I [John D. Hutson, retired Navy JAG, and opponent to Gonzales' nomination] believe the Attorney General is unique among the cabinet officers because she or he bears a responsibility directly to the American public as the chief law enforcement officer of the United States. The Attorney General also must be the watchdog over the government. Finally, people don't always understand the breadth and depth of the responsibilities of the Attorney General. For example, he or she has control over the FBI, DEA, ATF, and a host of other law enforcement agencies and all the U.S. Attorneys around the country.

For those reasons I think the nominee should not be benefited by the deference that the Senate should give to other cabinet nominees.

As they say, read the whole thing, including his reply to the "this is a new sort of war" arguments. The thing being a debate with Heather MacDonald, who honestly is mismatched. All the same, a law student (of a high school elective) could debate arguments such as:

I deplore torture. So does Judge Gonzales. I do, however, believe that the stress interrogation techniques that were devised for use on terror detainees - questioning a prisoner past his bedtime, isolation, impersonating a foreign interrogator - are well within the bounds of humane treatment.

Bullshit like this should firmly be rejected as such. First, it is ever so nice to be against something that you refuse to define (he was not sure "whether chopping of finger joints one at a time constituted torture") or supply effective safeguards against, even after it is clear that such laissez faire (if nicely deniable) policies led to abuses (ignore the clear connection if you want Ms MacDonald, but it is only possible if you want to be convinced). In other the words, "I deplore torture" are basically weasel words worthy of our scorn in this context.

Second, the examples chosen as examples of "stress interrogation" honestly had me screaming at the computer screen. Though she clarifies elsewhere in the debate, "questioning a prisoner past his bedtime" is not exactly what is involved here. It is simply disgusting, especially given what is at stake here, to even IMPLY it is.

Likewise, why is "impersonating a foreign interrogator" an issue? Well, obviously the issue is not that Americans are pretending to be Belgians or something. The devilish thing is that said interrogators, including those we (wink wink) send detainees (as the Hutson noted, detainees that are only suspects) to for questioning, are known to abuse them. In fact, said "impersonating" obviously has been too literal at times. And, "isolation" is nicely vague and innocent sounding. Are we supposed to take this woman seriously?

One more cutesy dodge that suggests that we are not just dealing with an opposing viewpoint. She notes that Gonzales did not write a particular memo, now federal judge (heaven help us) Bybee did. Yes, upon the request and with the support of Gonzales. Again, why in the hell are we supposed to respect these people? I understand that some of the contours of questioning is open to debate, but if one of the best defenses of the administration uses such misleading and shallow reasoning, something is seriously wrong.

Full Disclosure!

Note: I link below two stories comparing President Bush's use of public relation promotion (which, unlike the Plame investigation, he quickly put a lid on once controversy arose) with the Clinton Adminstration as well as the harsh treatment of the minority party now vs. when the Dems were in power. Both are much worst now. I think this quite important: it is useful to put the current suspects' actions in context, especially in reply to those who wish to suggest nothing special is going on.

Torture is wrong because it inflicts unspeakable pain upon the body of a fellow human being who is entirely at our mercy. The tortured person is bound and helpless. The torturer stands over him with his instruments. There is no question of "unilateral disarmament," because the victim bears no arms, lacking even the use of the two arms he was born with. The inequality is total. To abuse or kill a person in such a circumstance is as radical a denial of common humanity as is possible. It is repugnant to learn that one's country's military forces are engaging in torture.

The Nation's website is chock full with interesting articles, including profiles of Sen. Durbin and Rep. Waxman as well as the discussion (quoted above) on why torture is wrong. Other articles talk about execution of minors (via a discussion that includes a member of a victim's family who opposed the execution of the fifteen-year-old involved) and how columnists such as Charles Krauthammer* praised Bush's inauguration address without disclosing how they were consulted.

In respect to that issue, I somewhat respect Maggie Gallagher's explanation of receiving 21.5K government consulting fees relating to her traditional marriage activities, but am a tad bit disdainful about her alleged cluelessness on why not disclosing is problematic. It is amazing how conservatives can be quite scornful of Clinton and other "liberals" for being immoral and unprincipled (and journalists as biased shills), but when challenged for doing things that are or surely look unprincipled, they suddenly become quite defensive and cagy. And, I must say, Gallagher must have quite a busy life given her "forgetting" about being paid over twenty thousand dollars by the government.

Overall, this is another case where we cannot allow extreme cases (e.g., Armstrong Williams, who she did not want to be associated with) to be seen as isolated wrongs, when ultimately they are just the most glaring of a more fundamental problem -- the idea that the rules do not apply along with a totally hypocritical tendency to cry out when the other side do something they find wrong. Or, pretend to be totally innocent, perhaps saying that they are insulted that their integrity is being challenged. [As noted here and here, if we compare Republicans and Democrats, the ultimate "winner" in the nastiness sweepstakes is obvious.]

Also, it underlines my belief that editorials should have basic disclosure rules, especially guest columnists who many might not know are special interest advocates. This might seem obvious to some people, but enough readers do not take such material with the grain of salt justified that I think it is a necessary safeguard.

How about the involvement of editorialists and others with those they write about, including paid gigs? It is simply naive to be shocked about this sort of thing, though 240K is simply ridiculous, since it has been done forever. And, opinions from those connected to the government are fine as far as it goes. The important thing is disclosure. For instance, it surely is unsavory for the likes of George Will to portray himself as a neutral above the fray commentator, while behind the scenes helping Ronald Reagan with his political activities.

And, when I say "neutral," it does not mean lack of ideological bent -- surely his very purpose is to supply a point of view. I mean that he has a certain special connection or at least the appearance thereof to one side, which should be disclosed. Now and again we need to be reminded about such things.

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* Krauthammer is a downright nasty columnist and the Bush Administration should find him quite congenial. His column today finds it troubling that a few senators "dissented" by voting against Dr. Rice's confirmation. Others might argue this was their job, given they honestly felt she was a bad choice. Likewise, joined his fellow conservatives by being so upset that some felt she lied in part because a majority of the nation did not think so. How very democratic of you, Charles!

Challenging Their Integrity

Stupid and Offensive: One of the first moves of our new national education secretary is to protect children from lesbians. As discussed here, a children's show can expose diversity in various ways, including fundamentalists, but same sex parents cross the line.

adherence to moral and ethical principles; soundness of moral character; honesty.

-- integrity

When I was in high school, a Wendy's was built from scratch along my bus route in about three months. Three years or so ago, my favorite local fruit store closed down, and the place designated for a library. The thing is nowhere close to being done. And, the expectation of a new library in a reasonable amount of time is no more. I have learnt not to think about the matter, though almost daily I pass by the shell of a library, noting graffiti and recently a broken window. It is rather depressing really, much like the days when it seemed possible that we were months away from the end of the current administration. Four more years.

After additional debate, the expected occurred, and Condi Rice was confirmed as secretary of state by a vote of something like 85/15. A more firm opposition was suggested by the 10-8 party line committee vote in support of Alberto "the rules don't apply to us" Gonzales. Many who voted for Dr. Rice did not really favor her too much, though the usual nice words about her intelligence, personality, and experience were supplied. It was deemed the President's right to choose his own people; some suggesting Rice actually was a more honest selection than Colin "Goddamn, I'm Free" Powell. "Honest," however, is of limited value when it means a closer fit to an unfit administration.

The senior senator of Minnesota had a good speech on why Dr. Rice is not really qualified to be Secretary of State, aside from her loyalty to the administration. His at times harsh words led some to suggest he was challenging Rice's integrity. Well, yes he was, namely her lack thereof. There is some who say the Democrats need to be more concerned with the public's desire for morality, which pertains to "right conduct or its principles."

A look at the winners of the last election, however, suggests what is really needed is the appearance of morality. Spinning the facts to push us to war and as the troubles of said war continues is far from moral. Dr. Rice repeatedly, and name calling of the likes of Sen. Boxer or Kennedy will not change this, proved herself lacking of integrity. For this, she gets a promotion.

Isn't America great? But, say some, they won the election. This does supply them with additional power and the appearance of a mandate. And, in some respect, and this does not put some Americans in good stead, an actual one. The American public knew in some sense who they were voting for, even if many were confused about certain facts. No matter. This does not suddenly make immoral or unethical acts right, or supply integrity where it is lacking.

Finally, "No election, whether fair or fraudulent, can legitimize criminal wars on foreign countries, torture, the wholesale violation of human rights, and the end of science and reason." Not in our names. For those who spoke this basic truth, you have my thanks, even if the final result still leaves so much to be desired.

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Addendum: The dissenting votes against Dr. Rice and Alberto Gonzales are worthy of a bit more comment. It turns out that the thirteen votes against Rice's nomination was the most against a pending Secretary of State designee since Henry Clay in 1825. [Many felt his nomination was a corrupt bargain in return of support for Adams when the 1824 presidental vote went to the House of Representatives].

Also, the straight party line vote against Gonzales in committee is notable given implications by Sen. Schumer and Leahy that they (to my disdain) might support him as well as the fact that committee member Sen. Feingold was one of the few Democrats who voted for John Ashcroft's confirmation. Sen. Feingold is known for his independence and desire to be bipartisan whenever possible.

Thus, the straight party vote is particularly noteworthy.

Carson, Academy Awards, and Hotel Rwanda

I'm of the Letterman generation, but there is something to be said that he is the true successor of Johnny Carson. Carson recently was said to be leaking jokes for Letterman's monologue, and Carson's favoring of Letterman is well known by those who care about such things. Likewise, both are private souls, had more than one long term relationship (though Carson had various divorces as well), care(d) highly for their work, and a certain authenticity shined through. Both Leno and Letterman watered down their acts when they went to 11:30, but Letterman has my vote.

It is said by some, including Al Franken, that the hangdog lead of Sideways was robbed in the Academy Award nominations. [Kinsey also did not receive a nod. Finding Neverland taking both slots, more or less.] Still, my nomination for notable absence would be Foreign Language Film. The Passion of the Christ received a nod for cinematography and two lesser technicals, but not in that category. What gives? Meanwhile, Tupac: Resurrection was nominated in Documentary Feature (chubby turned down any option for Fahrenheit 9/11). Jamie Foxx (yes, him) received a nod for Best Actor and Best Supporting Actor, though not for the same flick. And, Morgan Freeman really didn't deserve a nod for the latter.

The nominees are generally on the money. Best Animated Flick is The Incredibles and two also rans. Catalina Sandino Moreno should win Best Actress for Maria Full Of Grace. Though Cate Blanchett sounds worthy, The Aviator overall has received mixed reviews, so all its nominations are somewhat questionable. Million Dollar Baby (picture and adapted screenplay) is my choice for Best Picture and unchosen Hotel Rwanda was better than The Aviator. And, Don Cheadle (tough race) at the moment is my choice for Best Actor (Eastwood was excellent too).

A few words about Hotel Rwanda, which I recently viewed. A good companion book would be We Wish to Inform You That Tomorrow We Will Be Killed with Our Families: Stories from Rwanda by Philip Gourevitch. Don Cheadle and Sophie Okonedo (both nominated) were excellent as was Nick Nolte, including a powerful scene in which he tells Cheadle just how much the West thinks of Africans. The movie itself had many powerful scenes and shots, including simply showing early on the machetes that was the favored choice of slaughter.

The movie might be criticized for telling but a small story of an elite Hutu (with a Tutsi wife) that managed to save about a thousand refugees through the foreign hotel he managed. But, when an estimated million died, a small snapshot is perhaps the best way to go about such things. And, when dealing with a wide release story (still quite powerful), a moment of grace and success among the horror also is a useful device. It retains our hope in human nature, though making clear the craziness and horror surrounding those islands of sanity.

In these times, when hundreds of thousands can die in a few days, there is something to be said for that.

Chain of Command

And Also: I discuss and oppose the Supreme Court's ruling on drug sniffs here. Rather mundane and predictable (even with past history taken into consideration, the Falcons are not as good as the Eagles) games yesterday, though the two deserve their victories. The viewers do not deserve the commercials shown: Levitra ads, pretentious IBM help desk spots, light beer ads, and Lipitor spots. Is this what the typical fan cares about these days? If so, just a tad bit sad.

I don't go around getting my stories from nice old lefties or the Weatherman or the America-with-a-k boys. I get them from good old-fashioned constitutionalists. I learned a long time ago that you can't go around making judgments on the basis of people's politics. The essential thing is: do they have integrity or not?

-- Seymour Hersh

Chain of Command: The Road from 9/11 to Abu Ghraib provides a valuable service by connecting the dots. For instance, it is aggravating when people admit that Abu Ghraib was horrible and all, but argue that it was just an isolated incident, and basically the excesses a few individuals. There are various reasons why this is so. First, it is felt that opposition to how the war is being carried forth is in some way unpatriotic and not respectful of the pressures involved in fighting such a perilous enemy. Attempts to show that in fact the moves taken are actually counterproductive and in some cases arguably unpatriotic themselves are tough sells.

Second, opposition is seen as too political, which ironically means the excesses of the Bush Administration is used as a defensive mechanism since only those who "hate" Bush or something would damn them so strongly. [Also, of course, in the past, opposition parties never made alleged administrative failings a political issue.] Facts are of limited value in this case, especially given the skill of the administrative forces, plus the weaknesses of the opposition. Third, many refuse to accept that something is especially wrong, thus focus on narrow failings or apparent good things done. Finally, the press and others fail to consistently supply a big picture summary and explanation of the events. The drip, drip, drip method of coverage clouds the breadth of the problem.

The success of Sy Hersh's articles and this book is limited by such factors, especially since he is so easily tarred as a leftie, liberal, or "the closest thing American journalism has to a terrorist" (Richard Perle). Nonetheless, his skill at supplying the facts and cogent analysis remains quite valuable. And, some of the more biting comments supplied in the book's epilogue might even be taken as accurate:

There are many who believe George Bush is a liar, a President who knowingly and deliberately twists facts for political gain. But lying would indicate an understanding of what is desired, what is possible, and how best to get there. A more plausible explanation is that words have no meaning for this President beyond the immediate moment, and so he believes that his mere utterance of the phrases makes them real.

For instance, Abu Ghraib was just one aspect of the administration's loosely regulated attempt to use untraditional means [and quite arguably counterproductive] to attain intelligence and fight our enemies. An attempt that received opposition from main forces inside the government -- not solely because of in-fighting over turf, but because of the dangerous game being played. As Hersh himself noted, the military is full with people with basic integrity and faith in the American ideal. It is why they respected him enough to offer essential details, even though his views might be different from their own.*

The book also has various other material that were the subjects of various New Yorker columns, including how (and why) the Bush Administration "stovepiped" intelligence, resulting in the use of quite a bit of suspect material. The infamous Niger uranium story is explained in some detail, and we discover just how flimsy the "evidence" of Iraqi wrongdoing truly was. The sad state of our intelligence is also covered with explanations how it has been a long term problem. The wars in Afghanistan and Iraq are also covered, including interesting material on Pakistan and North Korea. And, the final section covers the situation in the Middle East after 9/11, including in Iran, Saudi Arabia, and Iran.

The book is not always comprehensive because of all the material covered, but for those who want a good snapshot of the events in one volume, it is probably a must read (or skim).

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* Al Franken noted with awe that when he went overseas on USO tours, members of the military were particularly impressed with his efforts because they knew Franken opposed the war -- it showed that he truly cared.

Downloading Porn Upheld As Privacy Right

Snow: I staid inside and all, but honestly, the "blizzard" we had in NYC was a bit exaggerated. Still, heavier snow than we had for some time, and Saturday is good scheduling. Though no NYT was delivered, conditions outside the day after were rather tame with the usual "hey, where's all the snow" aftermath typical for the area.

Though it might be hard to believe, the federal government still is in the business of determining if certain movies involving consenting adults are "obscene, lewd, lascivious, indecent, filthy or vile." It is still not deemed a violation of the First Amendment or some other part of the Constitution (such as due process, since this is a quite arbitrary proposition). Yes, the Supreme Court held in 1969 that you can view such stuff in the privacy of your home. Nonetheless, since this was deemed largely a privacy decision, a corresponding right to receive it (including by such "closed" options as the mail or Internet) was not to apply.

Lawrence v. Texas has been seen by some, including Justice Scalia*, to call into question such laws. Though the Eleventh Circuit (Southeast) has gone out of its way to limit its reach, in part because the opinion's language can be twisted in various directions, there appears to be a logic to such reasoning. So says a district court opinion striking down a prosecution on transmitting "horror porn" for the purposes of at home download. The system of passwords and credit card access dealt with the unwilling viewer and protection of minor problem, leaving moral concerns. This was deemed not to be enough when consensual private sexual conduct was involved.

It remains to be seen how widely this reasoning will be accepted, but it is fully appropriate. The Internet and mail order is not only a boom to adult entertainment sales, but it allows consenting adults to enjoy such material without many of the problems of concern when it is sold in the public square. Private activity needs some sort of economic activity to supply its needs, as shown by sale of contraceptives and abortion services. This sort of merchandising is particularly private. And, if we recognize a general right to such activity, morality concerns alone should not lead to criminal prosecution.

I remain of the opinion that freedom of speech includes sexual speech, even of the material involved here. Sexual themes are clearly of long standing in literature, which needs not to be of high quality or complexity for constitutional protections to arise. All the same, some people find it silly to bring up the First Amendment. So be it. The parties for the sake of argument assumed the material was obscene and criminal on that ground. All the same, an additional concern of privacy in the area of sexual relations arose, and simple moral displeasure was not enough. The other interests able to be dealt with in ways more narrow than a ban, the prosecution was struck.

As it should have been. Let the feds worry about something worth their time and our money. And, not invading our privacy and liberty.

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* The district judge suggested that Justice Scalia's reasoning arose "after reflection ... not merely a result of over-reactive hyperbole by those on the losing side of the argument." The judge apparently is serious, but luckily, does not solely rely on this sentiment. It is ironic, however, how the Eleventh Circuit also used the dissent, but to limit the reach of the majority opinion to suggest a fundamental right was not involved.

This was dubious, since the majority relied on precedent in which fundamental rights were clearly at issue. Justice Scalia also noted that the Casey (abortion) decision also did not use the talismanic "fundamental right" terminology. The idea that only a rational basis test should be applied to abortion legislation, however, is not generally deemed to be accurate. Likewise, the majority referenced Justice Stevens' dissent in Bowers as the correct view. Justice Stevens clearly felt fundamental rights were at issue.

Wordplay is the funhouse of lawyers, but we should not be fooled into believing sophistry, even if we respect its skill.

The Choice Is Still Yours: 32 and counting

Men and women of good conscience can disagree, and we suppose some always shall disagree, about the profound moral and spiritual implications of terminating a pregnancy, even in its earliest stage. Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code. The underlying constitutional issue is whether the State can resolve these philosophic questions in such a definitive way that a woman lacks all choice in the matter, except perhaps in those rare circumstances in which the pregnancy is itself a danger to her own life or health, or is the result of rape or incest.

-- Planned Parenthood v. Casey

Today is the 32nd anniversary of the announcement of LBJ's death; it also is the anniversary of the handing down of Roe v. Wade.. Though the more apt precedent is Casey (both in its breadth and analysis), Roe remains the symbol all rally around, reference, and/or oppose.

There is some talk now that pro-choice forces should take a hard look at their position and temper it some so that pro-life forces (or those in some way sympathetic to them -- many who support legalized abortion personally oppose it and/or want to see it limited in some fashion) see that they are not extremists. I think there is some exaggeration going on here, but as I suggested in the past, some reframing might be warranted:

My overall philosophy is that true family planning is what is at stake here. This includes determining when a person will have a family, how large said family will be, and to make individual moral choices on the creation of said family. It's an interrelated whole like local clinics near me where not just abortions are performed (the power of the abortion pill is in part that opponents can't focus just on "abortion clinics" any more). Those who seize the word "family" for their own purposes, defining what it means, are the true threat.

See also here on the subject of science policy -- the problem might be the tendency to see abortion as a single issue that dominates, when it is fact but one of a wider range of subjects:

Since when did choice mean just abortion? Conversations about sex education, contraceptive access and equity, and providing for families seem to be perpetually drowned out by the abortion fight, yet true freedom of choice includes a broad range of reproductive health options for women throughout their lives.

Likewise, there is a sentiment that the right to abortion is mostly safe, so why not think about overturning Roe? This is ill-advised, as suggested by an account of the situation in Mississippi today. Overturning Casey will change little in some areas, but any number of teens and women (largely along the margins) as well as their families and communities will be affected in any number of ways. Some might support the result, but the result would be significant all the same.

Finally, there is the general tendency to make fun of Roe as well as other opinions it was based on such as Griswold v. Connecticut (contraceptives). I would argue that Casey does a fairly good job defending the right to choose an abortion, raising constitutional issues such as equality, moral choices, privacy, and so forth. And, Roe leaves a bit to desired as a matter of legal analysis. Still, the idea it is simply horrible (along with its companion case, Doe v. Bolton) is exaggerated.

If one reads up on the behind the scenes dynamics in books like The Brethren, one understands a bit better why it was written how it was. It still is unfortunate that it wasn't written better, though the net effect this would bring is unclear (for instance, pro-life forces did not suddenly arise in Jan. 1973. Abortion laws were being liberalized for some years, and pro-life forces would not suddenly lay down if "baby killers" were authorized by legislatures.)

All the same, a few words on the reasoning. First, there has been some ridicule on Griswold because of the use of words like "penumbra" and "emanations." Ill chosen words, surely, but words the author of that opinion used in the past to discuss such things as government powers that flow from but aren't limited to the bare words of constitutional provisions.

Likewise, Justice Douglas' views of the right of privacy were expressed for some years before the contraceptives case. And, how he framed them is fairly interesting. The below is an excerpt from a 1957 lecture bound in a book entitled The Right of the People:

They have a broad base in morality and religion to protect man, his individuality, and his conscience against direct and indirect interference by government. Some are written explicitly into the Constitution. Others are implied from the very nature of man as a child of God. These human rights were the products of political thinking and of moral and religious influences.

He is speaking in support of the "right to be left alone," but the underlining principles go beyond that specific right. As expressed in his concurring opinion in Doe v. Bolton, Justice Douglas saw privacy as a fundamental basis to all rights, a basic sphere to be able to develop and enjoy one's facilities and life. This privacy is one of space (home etc.), person (including health and well being), associations (incl. families), thought (including personal morality), and so forth. And, it is a theme that is recurring in constitutional opinions since the 19th century.

But, the "constitutional right to privacy," one the average person feels deep down is inherently obvious, apparently just popped up in the minds of some liberals in the 1960s to further birth control and abortion.

Not quite, and this and other complexities of the issues at hand will continue to be debated when Roe is sixty years old.

Empty Words

Sports: Roger Clemens' wears jersey No. 22, will be pitching his 22nd season and asked for 22 million for next season. He was given eighteen, the number of his regular season wins, not counting the playoffs (lest we forget, it was his inability to escape the sixth inning that led to the Cards to be swept by the Red Sox). I guess this is for services rendered, since Clemens was paid what amounted to pocket change in 2004. Still, the guy is a year older on a team with less bang for its buck. OTOH, Wade Miller left, and the free agents available to replace Clemens' spot leave something to be desired. Go Falcons!

Condoleeza Rice gives me the chills. The expression in her eyes [pic supplied] is frightening and psychotic. She acts as if everything is perfect; meanwhile, soldiers and civilians die every day. She may become the next secretary of state, but she will never have the charisma, the sensitivity or the guts of Colin Powell.

America's bipolar bipartisanism has come home to roost. The discussion is no longer about reason; it has become a primitive fight between good and evil, and Rice will fight tooth and nail for an evil that obviously will win. God bless the rest of the world.

Two local letters to the editor. The "guts" of Colin Powell has turned out to be a very debatable proposition, but I welcome the words of locals Hector Berrios and Marin Nici, who know the truth and respond accordingly.

And, then there is the presidential inauguration filled with pretty words that are empty and hypocritical given who said them. Those who are calling it a "great speech" (remember the "great" speeches before the war in Iraq?) annoy me because I do not think a great speech just stands out there in the ether. It connects with the audience, who do not have an underlining sentiment that the speaker is full of shit, though I guess some are sold the bill of goods. This is "greatness" in the current political climate.

As to all the citations of freedom and God, our actions have helped many to join the latter (so some would say) albeit not quite of their free will. A bit ironic.

This Too Shall Pass

A little patience, and we shall see the reign of witches pass over, their spells dissolve, and the people, recovering their true sight, restore their government to its true principles. It is true that in the meantime we are suffering deeply in spirit, and incurring the horrors of a war and long oppressions of enormous public debt...If the game runs sometime against us at home we must have patience till luck turns, and then we shall have an opportunity of winning back the principles we have lost, for this is a game where principles are at stake.

-- Thomas Jefferson

Supreme Court Justices Watch

DOMA Update: A federal judge in Florida (in a circuit particularly conservative on the issues) rejected a challenge to DOMA put forth by a married lesbian couple (Massachusetts, Florida domicile, a minister and doctor involved). The ruling's reasoning is of mixed value (imho), but the ultimate issue here is the narrow nature of the law. Sen. Kerry opposes same sex marriage, but opposed a law that went out of the way to protect state flexibility only when gays were involved. Exactly.

C-SPAN aired (and its website has a link to) an interesting debate between Justices Breyer and Scalia respecting the role of international legal thought on Supreme Court jurisprudence. Justice Breyer believes that it has something to add to the debate since other countries have to deal with many of the same problems as we do, while Justice Scalia both finds it troubling on originalist grounds (and we generally are interpreting American law) and because it is too easily abused by those who want to selectively use it to advance a certain point of view.

Both sides have something to add to the debate, especially since at times Justice Breyer appears to support what "works best" vs. what the Constitution in particular says. OTOH, the jurisprudence of other nations have something to add to our own, including in such areas as what is "cruel and unusual" in current times.

Justice Breyer has also received some criticism for not recusing himself in the recent federal sentencing guidelines because of his past role in the sentencing commission. It is unclear what would have occurred if he recused himself, which Breyer did not after checking with an ethics expert, but there might have been a 4-4 deadlock on one major issue if everything staid the same. Justice Breyer clearly has a personal connection to the old law and was strongly opposed to any basic change in how it was implemented, and this troubled some legal analysts.

Nonetheless, it seems to me a bit silly to in turn expect him to recuse himself because many federal judges have a political past that is touched upon once they get on the bench. For instance, Justice Black was a member of Congress before FDR appointed him to the bench, but did not recuse himself from the various legislation that he was involved in once they reached the Supreme Court. Chief Justice Taft was President less than ten years before being appointed -- was he asked to recuse himself whenever something involving his presidency came in front of the Court?

Other examples can be raised, including Justice Ginsburg and her past work as a woman's right advocate. And, this is not a matter of ongoing involvement or the like. On first blush, Justice Breyer made the right choice.

Justice Thomas is not free from controversy or connection with conservative voices. For instance, he presided over Rush Limbaugh's most recent wedding. Nonetheless, it is not usually the case that strong liberal, moderate progressive, and conservative voices join together to oppose something that Justice Thomas did. The current blow-up involves his involvement with the swearing-in ceremony of a conservative Southern judge, who not only is closely aligned with Judge Roy Moore (of Ten Commandments fame), but also some groups a bit too closely connected to white supremacy groups.

The issue first caught some people's eyes because Justice Thomas' statements respecting how the oath is ultimately to God -- which is after all what one does when one "swears." The concern, underlined by Atrios, is that some public officials think God's law trumps man's law in certain situations. Fair enough, but the distasteful company Justice Thomas -- who took a break from his no involvement in oral argument rule during a cross burning case -- is perhaps more notable.

Oh, and CJ Rehnquist made an appearance to swear in President Bush for his second term -- would not it be fitting if he [Rehnquist, though Bush would work just as well] submits his resignation letter tomorrow? You know, sort of how the offensive (in both respects of the word) coordinator of the NY (choke) Jets "resigned" and a replacement was announced a few hours later?

Rice-A-Phoni

Update: I see logic in the sentiment suggested by a comment that Dr. Rice has the honesty factor going for her -- unlike Colin Powell, she would say what the administration actually feels. This still is rather depressing. Anyway, a few Senate Democrats have forced debate on her nomination, delaying it to next week or so. A good thing: the Senate is supposed to debate and delay things a bit; if only it did so more on such issues as the Patriot Act and the Intel Reform Bill. Also, more details about Alberto Gonzales are supplied by Marty Lederman here, part of his continuing very good torture memoranda series.

Recalling Ms. Rice's pre-war remarks about the Baghdad dictator's supposed ambitions to acquire nuclear weapons, Senator Boxer said, "I will be placing into the record a number of such statements you made which have not been consistent with the facts."

After several more exchanges along that line, Ms. Rice said, "Senator, we can have this discussion in any way that you would like. But I really hope that you will refrain from impugning my integrity. Thank you very much."

"I'm not," Ms. Boxer retorted. "I'm just quoting what you said."

Ms. Rice replied that she welcomed further discussion, "but I really hope that you will not imply that I take the truth lightly."

You get the idea that Sen. Boxer is not going to vote for Ms. Rice's confirmation. Sen. Biden says upfront that he is. This suggests a certain lower standard of qualification given some of the remarks referenced by Fred Kaplan as well as the issue of just how many dependable Iraqi forces are on the ground. As discussed here (see also the comment thread), the "120K" figure suggested is looked upon rather dubiously. At best, it is a very optimistic reading of both "dependable" and "forces."*

The difficulty with Cabinet secretaries (especially policy positions such as State, though they should be held to a higher standard before confirmation, and not just questions about illegal nannies or other easy potshots) is that they serve at the will of the President, so if you find the President off base, this doesn't necessary mean one can vote against the secretary's nomination. Still, at some point, a line is crossed.

Alberto Gonzales clearly crossed it. Statements like: "We don't want the smoking gun to be a mushroom cloud." and that's a "historical document" (8/6/01 memo) also raises alarm bells. Kaplan and others also suggest overall Rice hasn't done her current job very well. One other item that has got somewhat less coverage is her strong words against the elective leader of Venezuela, egged on by the new senator from Florida. Not surprising, since the President (ours) supported the ongoing (illegal) coup d'etat, before the people's choice was reaffirmed.

The hearings give Sen. Dems (and some Republicans) a chance to give some of the more troubling issues like the whole WMDs motivation for war matter some play. This might be good politics and even do some good overall. Why senators like Biden praise and say up front they are going to vote for such a flawed candidate is a bit less clear.

Sen. Kerry by the way decided to join with Sen. Boxer to vote against the nomination. This might be deemed too much for those who find it distasteful that certain Democrats continue to strongly oppose the administration. After Sen. Boxer's joined a symbolic challenge of the electoral vote count, her recent strong words against Dr. Rice is seen as just one more example of liberals (Democrats) being sore losers, etc. Not only is it wrong to stereotype all Democrats by using traditionally emotional sorts like Boxer and Kennedy, but it reaches a point where one is supposed apologize for dissenting.

As to the grandstanding allegations, it is notable that they appear to be somewhat one-sided. When I read such stuff, including in local editorials, it disgusts and bores me in about equal measure.

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* Misleading spin is at issue in the issue Sen. Kerry questioned her about. The NYT coverage today noted: "Under questioning from Mr. Biden, the nominee insisted that President Bush 'got good military advice' at the outset. But she said unforeseen events had made the mission in Iraq harder than anticipated." Not really, but you can spin it that way, I guess.

Will she also "spin" it when asked her opinion as Secretary of State? I know clarity is seen as poison in nomination hearings, but they have a constitutional purpose, a sort of review board. Some minimum standard should apply, right?

Animal Welfare's Unexpected Allies

Interesting: How does one account for inflation over time? Check out here and here.

Executives found Dr. Grandin's approach "scientific" and not "emotional," Mr. Langert said. They marveled at her research techniques: how she measured animal behavior and conditions; how she paid attention to animal vocalizations; how she studied their response to electric prods; how she catalogued their adaptations to various conditions.

Indeed, Dr. Grandin often gets down on all fours to walk through a processing plant, as if she were an animal. She has autism, and she says things that bother her because of her condition, like loud noises, can bother animals, as well, McDonald's officials said.

- Animal Welfare's Unexpected Allies

Dr. Temple Grandin studies animal behavior and welfare issues. Her website focuses on her work on an area where such expertise is surely needed: the treatment and slaughter of animals raised for food. For instance, we can learn about her designs for more humane slaughter devices and research on how animals react to treatment inherent in factory farms and so forth.

A person like myself who finds the mass production of animals and animal welfare as basically mutually exclusive might look at such research with some disdain. This would be misguided, however, since you have to start with the possible. And, if we are going to have mass production of animals for food, the attempt to limit harm is a worthwhile enterprise. An enterprise that mixes animal welfare with some practical financial benefits, since mistreatment is not quite as financially useful as some in the industry might think.

Dr. Grandin appears to have such a mind-set. Her website, aside from some mostly technical material, includes an interesting essay concerning treating animals like property. She argues that they might be considered property, an abstract term that her condition has some problem getting a handle on, but they are not just "things" like a screwdriver or chair. Dr. Grandin focuses on neurological qualities of animals to show this, thus drawing a line at the oyster -- this would address a current commercial making fun of animal lovers who are told that their tissues kill viruses.

Different degrees of neurological development would require different degrees of protection. Animals also have certain values, such as bees who make honey and pollinate flowers or provide diversity, but we have laws regarding animal welfare largely because animals feel. As an autistic,* this must be of some special interest to her -- she in fact co-wrote a book about animal behavior which her condition appears to have influenced.

The essay is not comprehensive, so does not totally explain why the fact animals feel should matter to us. After all, it does not matter to many people, surely in the past before animal welfare laws were as prevalent as they are today. There are various reasons for such concern, of course, including a universal respect for life -- if we do not concern ourselves with the pain of our pets, for instance, it suggests a lack of care that will probably bleed over to other matters.

As Dr. Grandin notes, there is always some sort of favoring of one's own kind, but respect for others clearly have some value. This value is expressed in the animal welfare field in various ways, including religious respect for life, such as a belief we have a "dominion" over the earth that includes some obligation for its upkeep.

A final comment. Dr. Grandin noted that one review of her essay suggested that the raising of millions of animals for food is not beneficial to the animals themselves given the end result. She counters that life is worthwhile as long as such life is treated correctly. This raises a deep philosophical debate that Peter Singer addresses in the second edition of his seminal work Animal Liberation -- is the very creation of new life a good thing?

I wish not to dwell on the subject too much, but would suggest that even if we rightly respect Dr. Grandin's effort to better the life of animals, mistreatment is some fashion is inherent in the current state of mass production of animals for food (putting aside environmental concerns, etc.). Small scale animal husbandry is more open to debate, but easing the status of animals involved in factory farming can be taken only so far. It is akin to betterment of prisoners: at some point, obviously, we realize it isn't meant to be totally a good thing for those inside.

One can relieve the harshness of a system without ignoring that it is problematic at it core, though saying so might turn off the people running the system that you are trying to convince to ease things up some. Since in some fashion, we all must deal with imperfect systems that still can be handled in such a way to reduce their problematic elements a lot more so than is usually the case, this principle has universal application. Thus, I thought her comment was worthy of a response.

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* She has written or co-written various books relating to her condition, including a biographical account entitled Thinking In Pictures and Other Reports from My Life with Autism, which I probably will eventually check out. I posted a review of The Curious Incident of the Dog in the Night-Time on a message board, and someone mentioned her writings. Interesting things and connections pop up all the time, no?

This augurs badly

Football: After the Jets choked, other games went fairly predictably. The Falcons whipped the Rams while the Vikings missed the few opportunities it had to make it a game vs. the Eagles. And, the Colts (yet again) lost to the Pats, who held them to three points, and even had good luck weather (snow). Thus, it will be 1-2 seeds next week, and I'm rooting for the Falcons. Pittsburgh should win (upstart, survived bad outing by QB), but let's see if their usual championship game choke tradition plays out. It will be interesting to see how the Falcons play, though their offense and defense sure played fine on Saturday.

Michael Newdow failed in an attempt to block the saying of a prayer at President Bush's inauguration. The judge in an impressively comprehensive opinion had two main points: (1) an injunction against the President overall is a high test to meet, one hindered in this case by another similar lawsuit by Newdow that was rejected and (2) the Supremes upheld legislative prayer because of its long history from the time of the First Congress, and this ceremony has a similar heritage.

As an original manner, Newdow might have a case following traditional establishment principles, but this sort of thing is treated separately. This is a sound reading of questionable precedent as suggested by a law review article cited by the opinion:

There is perhaps no more of a defining moment in the American democracy than the inauguration of a new President. Inaugural prayers are quite different from legislative prayers in that they are patently intended for all Americans. ... Inaugural prayer violates the endorsement test's effect prong for the very same reasons legislative prayer does because it too endorses religion over nonreligion and Christianity over other religions. If the purpose of inaugural prayer is to solemnize the seriousness of the occasion, surely this function can be achieved equally effectively through nonreligious means. Consequently, inaugural prayer is unconstitutional.

-- Steven B. Epstein

The inauguration is just one of many instances of ceremonial deism in this country in which God is deemed an essential part of public ceremonies with governmental or quasi-governmental bodies formulating actually how it is done. Acceptable or not in this individual instance, at some point a troubling line is crossed. For a discussion about how this sentiment might invade our science class rooms, see this discussion.

On the other hand, there is always the philosophy that we really should not think too hard. This is the approach taken by President Bush, who argued:

[T]he public's decision to reelect him was a ratification of his approach toward Iraq and that there was no reason to hold any administration officials accountable for mistakes or misjudgments in prewar planning or managing the violent aftermath.

"We had an accountability moment, and that's called the 2004 elections," Bush said in an interview with The Washington Post. "The American people listened to different assessments made about what was taking place in Iraq, and they looked at the two candidates, and chose me."

He also noted that we haven't caught Bin Laden yet because "he's hiding" but like O.J. we are still "on the hunt." Likewise "on a complicated matter such as removing a dictator from power and trying to help achieve democracy, sometimes the unexpected will happen, both good and bad." [Not really in this case, since what was happening was mostly predicted by many people.] And, other pearls of wisdom.

The sad thing is that he almost has a point. The public should have known him enough to realize that voting his re-election would be taken as reaffirmation of all that was done in the first four years. This is akin, by the way, of not divorcing your spouse being taken to mean that said spouse did nothing wrong or worth reforming. Life just doesn't work that way when we deal with rational people who actually have a willingness to show some humility and ability to learn from experience.

This leads back to the opening issue in one of two ways. It is either sacrilegious (like a doctor taking part in a death sentence) to bless the inauguration with the presence of clergy. Or, we need as much help as we can get ... those who are worried about such things as what message is being sent etc. are not a big concern of this administration anyway, right? They lost on November 2.