Some Guideline Guidance

And Also: A snapshot that suggests how things go matter. A dog dies [not mine], a death not too surprising given her health and age. But, the location and timing of the death led to problems. The death sad, but more easily accepted than the complications (purposely left unsaid here). You can accept, if with some unease, much, but sometimes how it goes down rankles. And, at times, this complicates the acceptance, which in another situation would have been much easier.

First, your return to shore was not part of our negotiations nor our agreement so I must do nothing. And secondly, you must be a pirate for the pirate's code to apply and you're not. And thirdly, the code is more what you'd call "guidelines" than actual rules. Welcome aboard the Black Pearl, Miss Turner.

-- Pirates of the Caribbean

A bit more on the recent Supreme Court decisions. The issue at hand can be said to be unintended consequences. In the 1980s, with an assist from Stephen Breyer, Congress decided to set up a federal sentencing commission "with power to promulgate binding sentencing guidelines establishing a range of determinate sentences for all categories of federal offenses and defendants according to specific and detailed factors." [To quote an opinion that upheld the institution, Scalia alone dissenting.]

This was thought to be a means to provide a fairer means of sentencing, both more rational and less likely to be arbitrary in part depending on the defendant (which can have racial implications, suggesting why some liberals liked the idea).* Meanwhile, the drug epidemic had a new evil -- crack cocaine. Again with some support from liberals (if less of them), crack was deemed so dangerous that it warranted a 100-1 ratio (based on weight) when applying punishment as compared to powder cocaine, which did not have paltry punishments connected to it either. This leads to a three to six times greater sentence. To quote the recent ruling:

Congress apparently believed that crack was significantly more dangerous than powder cocaine in that: (1) crack was highly addictive; (2) crack users and dealers were more likely to be violent than users and dealers of other drugs; (3) crack was more harmful to users than powder, particularly for children who had been exposed by their mothers’ drug use during pregnancy; (4) crack use was especially prevalent among teenagers; and (5) crack’s potency and low cost were making it increasingly popular.

The sentencing guidelines system, as summarized in this opinion by Souter from last year's Rita ruling, led to various problems. One problem had more to do with the corresponding use of mandated sentences that in various instances (see crack cocaine) led to unjust results. Thus, the crack cocaine ruling amounted to a difference of 15 and 19 years, given mandated sentences, suggesting a core problem is not even addressed by the ruling. And, it is not even drugs per se -- the companion case involved Ecstasy and the statute (if not the guidelines -- which suggested 30 to 37 months) left open probation. A sentence the Supremes held as reasonable. Well, maybe under its sentencing jurisprudence, but probably not in a big picture way.

Another issue was that the guidelines often relied on various "factors" that judges decided, pursuant to weaker standards of proof, on their own. IOW, though a jury might convict a person for "x," said person might be liable for x+1 based on facts solely decided on by judges. And, this could mean a much higher sentence. Sentences that district judges often had little wiggle room in practice in handing down, since going beyond the guidelines left them open to reversal. In an rather ironic case (involving Rodney King's attackers), the Supremes did caution some discretion, but the net result tended to be restraint.

This was after all a goal, but it did feel to many that sentencing judges could not do their jobs -- a prime one fitting a sentence to an individual offender, something no mathematical scheduling formula could always do with precision. Meanwhile, the crack vs. cocaine discrepancy was deemed a bad idea too. The Sentencing Commission itself held that crack just wasn't that more harmful, the policy tended to penalize low level dealers more than big guns, and simply looked bad (especially since it disproportionately affected minorities). [Again, the Supremes summarized the matter in yesterday's ruling.] In fact, after the ruling, the Sentencing Commission retroactively reduced the guidelines by about seventeen percent. [See this article.]**

So, to cut to the chase, the Supremes held that judges could not sentence a defendant to a term higher than facts [except a previous conviction] decided by the jury would allow. A trick here is that many crimes have a range of punishment to pick from, so in practice, the judge very well might still be deciding facts on his/her own. Another wrinkle complicated things. When the Supremes decided the matter as to federal sentencing, a majority (5-4) decided that if judges could not decide "factors" on their own, federal sentencing guidelines had to be voluntary. But, the district court had to be "reasonable" about their use. FYI, Justice Breyer decided this, after noting that he didn't agree with disallowing judges to decide various facts on their own. So, I think it's really his revenge, honestly.

The latest rulings basically said "reasonable" is a pretty low bar, even if an earlier ruling said that if the district court basically assumed the guidelines were fine as a general matter that too was probably "reasonable" too. One can go on, but simply put, this has led to a lot of confusion and arguably nullifies a major point of the sentencing law behind the guidelines. Stevens thought so too, but joined in after awhile to stay loyal to precedent as did Scalia. Thomas, Alito and Souter, not so much. Souter made a sound point in the latest round:

I continue to think that the best resolution of the tension between substantial consistency throughout the system and the right of jury trial would be a new Act of Congress: reestablishing a statutory system of mandatory sentencing guidelines (though not identical to the original in all points of detail), but providing for jury findings of all facts necessary to set the upper range of sentencing discretion.

Expecting this Congress to do something this sensible is probably asking too much, so basically we have a regime now that appears to give district court judges broad discretion [the footnote below suggests the various objectives of sentencing are open-ended enough that "reasonable" is a low test, especially if probation when three years is suggested does the job], if they want it. If not, they can still let the guidelines guide them. Mandatory sentences in various cases will still lead to cruel results, but often enough there will be a lot of options to pick from.

And, this is just a tip of the iceberg discussion, but the broad discretion given to district court judges appears to suggest the Supremes thinks things are a bit messy as well. A "let district court handle it, we are done with this issue" flavor seems to be there. Thomas might be right this has a bit too much policy to it, Alito that so much discretion very well might ignore the policy behind certain statutory sentences, and Souter that the "solution" (which was a split the baby deal anyway that apparently only Justice Ginsburg was completely happy about) leaves something to be desired.

[Update: I made this comment because of the split here, but CJ Roberts was not on the Court (nor was Alito, but he dissented this time around, underlining his concerns), and concurred without comment here. BTW, Scalia had a pretty dry concurrence, showing sometimes his um wit is kept in check. His pal Ginsburg showed a bit of it in the third ruling, starting her concurrence thusly: "It is better to receive than to give, the Court holds today, at least when the subject is guns."]

But, c'est la vie people.

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* To quote a summary: "Congress set forth a guideline system to be personable for the specific case and placed 11 factors to consider when sentencing: grade of offense, aggravating circumstances, nature and degree of harm, community view, public concern, deterrent effect, current incidence. Another 11 factors were established to summarize the defendant: age, education, vocational skills, mental and emotional condition, physical condition, previous employment, family ties and responsibilities, community ties, role in the offense, criminal history, and degree of dependence upon crime for livelihood. Congress prohibited the Commission from addressing: race, sex, national origin, creed, and socioeconomic status."

** The Administration was -- shocker -- against this move. The mandatory sentences remain, so we are talking about a couple years, eight instead of ten years, let's say. And, often enough, non-violent offenders. This is simply not that big of a deal, honestly, and accepted here by a commission 7-0 with support of federal judges. But, knee jerk get tough on crime tactics are required, I guess.

Supreme Court Watch

Interesting federal sentencing guideline cases, including one that allows judges to temper the crack/powder discrepancy (100 to 1), summarizing the issue (including reasons for the difference and how later it was deemed too much) fairly well. Each ruling was 7-2, Scalia supporting precedent, Souter ideally wanting Congress to re-legislate given the new Booker rule, and Thomas/Alito dissenting. The concurrences and dissents overall are telling -- discretion of this sort might be a good idea, but it's somewhat dubious statutory construction. Another ruling was unanimous, but Ginsburg had a cute (and telling) concurrence.

No excuses

The Speech and Debate Clause protects members of Congress who discuss executive wrongdoing on the floor. There are means to avoid violating oaths/affirmation of secrecy. And, losing the privilege of viewing classified info or an ethical violation doesn't justify aiding and abetting of this sort of thing. There are Dem/Rep/Bush Dog differences (see Glenn Greenwald link too) but making it harder to show them -- especially for those who want to ignore them for various reasons -- well, no good excuse for that either.

Giants Won. Miami and Jets Lost. Pats Won.

Eagles almost tied it at the buzzer with a 57yd field goal. All about right. And, per the usual blogs, more Dem enabling. Oh wait, are the Jets trying an onside kick for the fifth time (one for three, one do over) in the final three minutes? No, the game is over. Still lost, but amusing.

Juno: Another Pro-Life Movie

And Also: I put some new books on the side panel. Journey to a Revolution -- from someone who visited the scene as a student -- by Michael Korba provides an interesting look at the failed Hungarian revolution against Russian control in 1956. It occurred at the same time as the Suez Crisis, important in its own sphere and coming at a bad time for the Hungarians since attention was taken off the Russians, both well worth remembering, even if many have heard about neither. 12/7 anyone? Ring any bells?

[I did not see the movie discussed below, and coverage and previews only takes you so far. So, take my comments with a grain of salt, but I think, they are still probably basically sound. To the degree many do not see a lot of the films whose overall flavor I discuss, the message I take out of the coverage is useful on its own as well.]

Juno is the third in an unplanned movie trilogy, the others being Waitress and Knocked Up, where a girl accidentally gets pregnant and grows into a heroine by rejecting abortion as a quick solution. Social conservatives attempting to break through in movies have not yet mastered the art of getting our point across without coming off preachy. But it's fascinating to watch the Hollywood and Indie crowd handle one of our premises pretty much the way we'd like it handled.

-- Jill Stanek [of "Pro-life Pulse"]

I have long been interested in abortion, in particular Roe v. Wade, because of the many issues that the issue raises. Issues that are deep and profound. The general stance of the country appears to be pro-choice with concerns, an uncomfortable pro-choice in various ways. But, push comes to shove, a clear majority knows situations -- sometimes only when they occur -- where they accept abortion as a legitimate choice. This is true even if they would not make that particular choice themselves. I know such a person, who would not be able to make the choice herself in most situations, but firmly believes it is the choice of the woman involved.

It therefore annoys me, though I recognize facing the issue can be uncomfortable to the viewer, that the issue is so rarely addressed in fiction. Fox News (seriously*) had a documentary that credibly provided a balanced look at the subject, the complexities of the matter in real life. As with Media Matters et. al. that underline that the "liberal media" is not quite liberal enough in some ways, it turns out that Hollywood and yes, indie world, is less balanced. Millions have aborted since Roe, but it is rare that the issue is raised, surely not as a major story point. This includes in cases where many women seriously consider and/or actually do have abortion. As in other situation, this colors how we treat the issue, in real ways even it is hard to quantify.

The opening quote makes a telling point. The review is even more telling, gleefully so in a few cases. Now, I really enjoyed Waitress (the director sadly was brutally murdered for what amounted to trivial reasons, the murderer setting it up to look like a suicide), and fully recommend seeing the movie. And, the idea that an abused wife from the deep South would believe that an unwanted pregnancy -- one she hated to have and by a brute she hates just as much -- was something she had to bear is fully believable. We are talking about a conservative culture, even if it is wrong to simplify all members as backward reprobates.** It also was required for the story that she stay pregnant.

But, if even a few movies portrayed someone who had an abortion in that situation, maybe I would feel a bit better. Examples probably can be listed, but I keep track of films pretty regularly. And, I simply am not aware of too many at all. Abortion might be a decision made, but these films are about having children in various cases where pro-choice people would have in mind when wanting to keep the option open. Bad marriages. A one night stand with a dweeb. A one and pregnant (an anti-sex subtext here is not too hard to imagine) teenage pregnancy. In this movie, abortion is seriously raised, but so far from my reading it raised to be rejected in a somewhat crude fashion.

Again, fine enough that the girl here decides it is not for her. Happens. The reverse does too, however. Juno -- starring the girl who was quite good in Hard Candy -- had received good reviews in part because of the mature treatment of the characters. Smart and supportive parents, flawed but promising wannabe parents who wish to adopt and complex lead that isn't as smart as she thinks, but is smart and complex enough to admire. So, the movie standing alone is worthy of respect, and if you want to add that it has a pro-life aspect to it, fine enough for me. Stereotypes aside, there is more moral and religious content out there than some are willing to give movies and television credit.

Thus, concern from the likes of Mitt Romney [and, in a fashion, Barack Obama too] that faith is seriously threatened these days in the public sphere is dubious. Nor is the pro-life side, if the unbalanced treatment of the issue is any evidence. This underlines how things can be a bit different than it at first might seem -- cf. the small minority of counties with an abortion clinic with the fact it is legal nation-wide. Pro-choice in form, but not quite at substance, the film world is a bit less pro-choice as one might think.

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* I did not see the documentary, unfortunately, but my local paper gave it a respectable review. The reviewer took a fairly neutral stance on the issue itself, as I recall, but overall thought it a good try (two and a half stars out of four, perhaps). As the link suggests, the doc is open to criticism, but lots of stuff is. If we particularly take the venue into consideration, it is more than we might expect for sure.

** If the regional angle doesn't totally do it for you, other reasons for her simply not taking abortion as a credible option can be suggested. I did not see Knocked-Up, but coverage suggested that comedy with less of an edge (and much less feminist in various ways) didn't really raise it at all. Not very credible, even if plot-wise, it would have been inappropriate.

Whatcha Going To Do About It?

As Glenn Greenwald noted, the destruction of a video to cover-up torture and obstruct justice as a side benefit, is not new. Neither is there being no real consequences. The latest bit involving CIA and detainees just fits a pattern. Will anything but noise be the result? If not, cynicism is quite appropriate. [I'd add that lack of action not only adds to the propaganda (or worse) of actual terrorists but hinders those who realize that some secrecy -- by those who use their power wisely -- is needed, including in Intel committees in Congress.]

Third Time's The Charm?

And Also: Mitt Romney apparently is no JFK, though some have compared him to John F. Kerry. At least, if his "religious speech" is any proof. No shock there. Now, in the past, I said "religion" should be understood broadly, but I don't think his argument that it's fundamental to being an American is meant to include those who find life's meaning outside of what your average Republican faithful thinks about the term.

The never-ending story, oh I mean detainee cases, continue. See here and here for transcripts and audio. And, here for a flavor of the analysis. Emily Bazelon also had an article on the government's (mis)use of history. For the latter, I had these remarks on the Slate fray:
Various briefs underline that history is not on the side of the administration is different respects. But, this quote [from EB's article] suggests a more telling point:

Finally, the retired officers point out that the stripped-down nature of the CSRTs—defendants also aren't allowed to have lawyers, and in another contradiction of Article 5, the panels are instructed to presume that the government's evidence is "genuine and accurate"—is far less justified because none of the procedures are about battlefield sorting. In the past, the 190-8 tribunals had to operate in the midst of armed conflict, for example in Vietnam. The CSRTs are assessing, with no huge urgency, the status of people who have been held for years and are far removed from any theater of war. Shouldn't the CSRTs be more careful, not less?

Simply put, "history" has not really provided an adequate precedent to what is going on here. Amusingly, 9/11 sometimes supposedly "changed everything," except here. [History, as the Brits determined, also taught us not to use the fruits of torture in court. Also, something about not starting land wars in Asia.] Luckily, habeas corpus and constitutional principles overall (particularly due process of law, also relevant here ... even without habeas, "persons" should have some security against arbitrary process when held in areas under U.S. control ... or can we set up slave camps?) are not set in 1789 or even 1942 stone.

Procedures develop over time based on the wisdom and felt necessities of history. It is asinine to ignore the special nature of this conflict. This is underlined by the lack of "POWs" here (who can be released at the end of hostilities and are innocent of any crime), people quite often not taken off the battlefield with guns in their hands, though some talk as if that is what happened.

And yet the retired officers conclude, "Taken together, these differences show that CSRT proceedings are little more than a facade, without even the substantive protections that ensure compliance with Article 5 of the Geneva Conventions and that invest 190-8 tribunals with legitimacy in the eyes of the world." [EB]

As one human rights attorney notes, there is a Kafka-esque flavor here:

the CSRTs are instructed to ask whether the detainee is "still" an enemy combatant, not whether he ever merited the label in the first place. And in a bizarre formulation, though one that is perfectly characteristic of the CSRTs' approach, any detainee who manages to convince his panel that he is being wrongly held is deemed "no longer" an enemy combatant, rather than simply "not" an enemy combatant.

Reading The Trial also might be useful given "Detainees expressed particular frustration at not being informed of the source of the testimony against them."

One amici brief in this case was written by Israelis reminding that they manage to deal with their much more at home threat without deprival of a fair hearing in court akin to what is happening here. The Brits in the Rasul case also reminded us that it is good to learn from history, in part their less than ideal treatment of the Irish during "The Troubles."

Some wish to argue ala Prof. John Yoo that the Framers wanted the executive to be like George III. So, history can be twisted. But, we can learn from history too and it is an ever developing thing. So, even accepting their slanted view, I say "so?" We have moved on from the past and are in the 21st Century, one in which the policy of the administration, assisted by congressional legislation* is unjust.

And, not acceptable under correct standards of the law of war, international law and justice, habeas corpus, due process and so on.

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* Sen. Specter voted for the deprivation of habeas corpus after saying it was a horrible thing to do. Now he signed on to a brief trying to undo what he helped to promote. Neat trick.

Enchanted x 2

And Also: I updated the blogroll a bit, including adding an interesting looking blog on religious developments.

I have seen the wrong half of two Giants games. The first half of the Giants/Eagles game (second edition) wasn't always pretty, but it ended on a decent 17 all note. And, thereafter, they fell apart. This time, after the Jets (unfavored) finished off the Dolphins with much time to spare (40-13), the Giants struggled vs. the Bears. Even after I left to see Enchanted, they went down 16-7. The late comeback needs to be caught on NFL Network replay. [Games aren't listed yet on my on t.v. directory, but this should be one of them]*

Meanwhile, I'm no fan of the loser Ravens. They beat the Giants in the Super Bowl, helped by a questionable call (yeah, they beat them good, but the call was a turning point). They also -- in a game I actually travelled to see -- beat the Jets to help clinch their losing season. The Jets that year (under that old QB, Vinny T. ... wonder what happened to him) did self-destruct in various ways, but the Ravens helped. And, they are known to have an attitude problem, partially from their defense minded nature that at times looks like bullying.

But, I don't like NE more -- I'm tired of them; once, I actually rooted for them vs. St. Louis, but the bloom is gone. It's time for them to lose a damn game. The Ravens, the second team in the row favored to lose by about 20, did the Eagles one better -- they were actually AHEAD late. 24-20. Now, the Pats had time outs, and getting the ball back would not necessarily end the game. But, it would have been close. Especially, after a second chance by penalty still made it fourth and medium in the red zone. Holding! First and goal! TD! Desperation toss stops at the 2.** The [expletive deleted] win again.

Way to choke! Now, it's up to Pittsburgh. [The last game is vs. the Giants, who hopefully will not be playing for anything much. They have a credible shot, but I rather not put my trust in them. I know them a bit too well.] The odds makers should learn -- at least until the Jets and Miami play them -- and NE will want to finally not have to bite their nails on the sideline late. If they actually do that any more, especially after the last two games. OTOH, the Steelers actually offensively (their defense, I don't know, but these two games should give them ideas) have a shot. But, they too have been known to choke ... admittedly, against bad teams. Grrr.

Anyway, Enchanted, which I talked about here before watching, is a charming movie. I especially liked the music numbers -- both the animated one and the two life action versions. The story of a fairy tale princess coming to NYC has a great lead in Amy Adams, a playful tone that pretty much holds up to the end (the serious moments mostly work too) and the criticism here about the bit of consumerism is well answered by the comments at the end of that article. See also my comments in the previous link; as to three year old brides, another comment rightly pointed out the example of first communion veils.

The movie does have a few lulls and Patrick Dempsey (playing his serious minded lawyer type a bit too well -- he is simply dull) and Susan Sarandon (evil stepmother; the inconvenient "other woman" has a happy ending here, but the evil stepmother is treated rather blandly by the numbers) do not (or are not given much to) do much with their roles. One review notes the first thirty minutes (much spent in the animated world) is where much of the energy lies -- since the second music number comes after that, I think this isn't quite right on that point alone. Anyway, overall it's a charming movie, and a nice respite from some more serious fare.

Some might get a bit disgusted (as the song itself said) "vermin" helping Giselle to clean the apartment, but hey, there were only some roaches here. Cf. Joe's Apartment. (The movie!)

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* The way to win in the NFC is to play decently and have shades of superior effort even in a ten minute burst -- helps to have a good defense as well, which the Giants do have. Heck, even the Green Bay back-up had a credible shot until late in the 4th Quarter. Thus, either the Cardinals (is this the game we show up or the game we don't?) or Vikings (it's Thanksgiving, let's suddenly go on a run!) will probably get the last Wild Card spot.

** It is almost silly to say much about a :45 drive, pushed back by unsportmanlike penalty calls by the aggravated Ravens defense, but it might have been better to somehow make the desperation toss before the time out. It is true that they sometimes are intercepted -- end of game -- but if not, they do sometimes get you close enough to the goal line to hope.

First Snow Here ... Miami Lose Again

"a matter of analytical accouchement than precedential accretion"

And Also: The idea that requiring the Yanks give up Phil Hughes in a trade for Santana is somehow debatable seems silly -- the Twins are giving up an elite pitcher. Getting a mostly untested Ian Hughes in return does not seem enough, does it? Hughes has been only somewhat tested as it is, and Santana is still quite young. Meanwhile, not too upset about the Milledge deal. The GM noted teams weren't really interested in him as to obtaining top pitching and the like. And, he hasn't shown much yet. The Mets also got two decent ML players in return. Maybe, he will be great in the future. Who knows? Give me a good starter and reliever, that's my biggest concern.

We confront here the facially anomalous request that we approve state confiscation of a substance which is legal in the circumstances under which it was possessed. This request is terra incognita, as will be most of the many confusing aspects of the current tension between California marijuana laws and those of the federal government. Our conclusions are therefore more a matter of analytical accouchement than precedential accretion. But we are convinced by the Attorney General’s argument that governmental subdivisions of the state are bound by the state’s laws in this instance and must return materials the state considers legally possessed. We are persuaded due process will allow nothing less. Accordingly, we deny the City’s petition.

Interesting California case flagged by my weekly Findlaw listing of cases received by its useful mailing lists. The "analytical accouchement than precedential accretion" bit called to mind the much riduculed "peneumbra" and "emanations" bit from Griswold, even if its basic principle (a true security of constitutional rights includes security of things not expressly listed, just like an outlying fence protects a home) is sound. It is almost hard to believe that wasn't used for some verbal effect.

But, aside from that, the case itself puts forth an important principle of federalism. It underlines that concept is not just some conservative excuse for backward thinking, though it is quite true that the consistent federalist tends to be hard to find. (Some want to use it for liberal ends -- consider Justice Brennan citing the idea of state constitutions of broader reach than the more conservative views of the post-Warren Supreme Court -- but often not when conservative results are likely.) As noted here:

By complying with the trial court’s order, the Garden Grove police will actually be facilitating a primary principle of federalism, which is to allow the states to innovate in areas bearing on the health and well-being of their citizens.

The case involved a motorist in California involved a traffic violation after which a small amount of marijuana was found in his possession. This was seized, but it later it was found that he was authorized by state law to have it for medicinal reasons. The police did not want to give it back to him because federal law does not allow such an exception. But, especially because its claim of concern of liability was unlikely in practice (immunity tends to apply), this was not controlling.*

States do not have a general obligation to enforce federal law that does not particularly "preempt" state allowance of the conduct in question. If I assault someone in a post office, the state in which this crime takes place might very well in various ways assist the feds in catching and prosecuting me. For instance, perhaps if I am seen at a certain location, and state authorities in some matter learns about it. However, the state is under no obligation to help, or seize evidence to bring me to justice. Past cases also prohibits the feds from forcing them to do so (e.g., Printz v. U.S.," commandeering"). As the court here noted: "The California courts long ago recognized that state courts do not enforce the federal criminal statutes."

States are not just subdivisions of the federal government akin to counties in states, which themselves often are given broad discretion. The principle is particularly important when dealing with disputed points. This was seen in the slavery context. Prigg v. Pennsylvania held states could not be forced to assist in the return of fugitive slaves, leading to the Compromise of 1850 in part putting in place a federal regime, involving federal commissioners. Ditto in more recent times, including the regulation of medicine (thus the federal "partial birth" abortion was targeted in the recent Cato Supreme Court Review collection on federalist grounds).

It is quite true that Gonzales v. Raich (dubiously) upheld the right of the federal government to arrest the person in question. The opinion here cited Justice Thomas' dissent to augment how the actions here had "no impact" on such enforcement. True or not, the majority thought differently. It might be not "likely," but federal prosecution for small possession is possible. The case was after all about the right to own small amounts of marijuana for medicinal use. This was deemed to affect interstate commerce enough to come within congressional power. So, if the California court is right here, the reason has to be at least somewhat broader.

Simply put, if the feds want to enforce their dubious policy, they have to do so without expecting police officials in more friendly states to help them. States might very well on their own decide not to allow medicinal marijuana in part because they figure federal policy would make it hazardous. [In practice, without local assistance, law enforced from afar is much weaker. But, in various cases, it has bite. Angela Raich found that out as did other unfortunates.] Or, the feds might use the power of the purse or some other means to encourage such involvement.

All the same, states can still not enable various federal policies they oppose. To cite Justice Brandeis, they can be laboratories. Such discretion might in various ways not be free of restraint. The federal government has broad powers that touch upon many local matters. But quite often locals have real discretion, especially as applied to everyday effect. And, as a result, can call attention to and limit the harm (in some cases, the benefits) of controversial policies.

"By complying with the trial court’s order, the Garden Grove police will actually be facilitating a primary principle of federalism, which is to allow the states to innovate in areas bearing on the health and well-being of their citizens."

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* The fact that the police was probably not going to be liable made the very standing of local authorities (the state and local authorities were on separate sides here; cf: Romer v. Evans, involving a more conservative state policy as to homosexuals after local areas put into place a more liberal policy). Nonetheless, though some dispute over the proper resolution over the issue was cited, the court took a pragmatic stance here. The matter was important and "here it appears quite likely the City will not be able to obtain judicial review of the trial court’s order unless it is afforded standing in this proceeding."

Cf. Use of standing to keep federal surveillance methods from court scrutiny. See also, this link to a discussion of FISA and its recent progeny from an insider. I particularly think this is a fundamental point:

Like many competing American values, liberty and security converge in law. We strike the balance between them not only in the many particular statutes, orders, and policies of the government, but also in the ongoing process of Legislative, Executive, and Judicial action – and reaction – within the framework prescribed by the Constitution. Our national security is therefore cast, and continually recast, in the crucible of our legal system.

[see also, my comment there]

Not quite x 2

The Green Bay back-up QB became the latest "good job, not quite" example of lesser teams (and players) not quite beating their superior opponents. Miami, for instance, has several close defeats. Unclear if Brett, out early by injury, would have done better -- the defense hurt them early, and did not quite hold late. Meanwhile, as I thought, the glee from the right on the stem cell issue (Bush was right!) is exaggerated at best.

Letter Writing

And Also: In yesterday's debate, see TPM etc., Sen. McCain was shocked that Romney was iffy about waterboarding being torture. How about our new AG? Oh wait ... when enabling Bush, McCain -- his books on courage etc. aside -- suddenly gets a bit wishy-washy. And, is thus not a credible candidate.

Samara O'Shea [nice name], one of those lucky souls who are able to make a career out of writing, has a website in which she will write a letter for you. Since the fee is a bit much, it might be better to buy her new book, For the Love of Letters. Her goal:

And that is what I’d like you to take away from this book—an appreciation for how powerful your words are. How powerful our language is and how effective the two can be in tangible form. Letters instigate understanding, change, and closure. Letters are a chance for all of us to live well beyond our allotted years. They can and will affect the recipient, but what’s oftentimes greater (and more surprising) is the effect letters have on the writer—who may be coming face to face with his or her thoughts and feelings for the first time. Letters have been performing acts—both ordinary and extraordinary—for several hundred millennia and I’d like to make sure they continue to do so.

The book itself is basically a how to, providing advice on how to write different types of letters (love, apology, business, for causes, etc.) with historical (e.g., Abraham Lincoln, Susan B. Anthony) and personal examples. She provides down to earth advice that might not be revolutionary (one Amazon review was not impressed), but practical and done so in a pleasant but professional matter. The sample letters are both charming and fascinating. A good gift idea.

One example supplied involves a letter to the editor challenging Madonna's blithe comment that she doesn't care for media and doesn't read it ... this is a magazine interview by a media star. This reflects the author's interest is popular culture. Two things come to mind. One, my own letter [some time ago] to the NYT (Sunday A&E) on the value of television shows to promote knowledge in particular causes. Two, how media has again foreseen and reflected fact. This involves Sandra Day O'Connor, whose confirmation followed by a few years the play First Monday in October ... concerning the first women in the Supreme Court.

The connection was not made in the article I read about the matter, but Away from Her is a recent film that concerns "a man coping with the institutionalization of his wife because of Alzheimer's disease faces an epiphany when she transfers her affections to another man." The film, which I have not seen, received good reviews. It came to mind because of a story about Sandra Day O'Connor's husband also finding such a connection, but this time the news accounts underline she is glad that he has found happiness.

More evidence that fact and fiction is not always far apart.

Football Quickie

How annoying. The Eagles had a good shot at beating unbeaten New England, but suddenly stopped scoring. Lost by a field goal. OTOH, it took the Steelers to the last minute to score a field goal vs. Miami, who didn't score at all. Good thing, since losing against the Jets (creamed on Thanksgiving) and Miami would be really sad. Meanwhile, the Giants lost bad (bound to happen at least once though some fans were horrified) to the also ran Vikings. And, Starting Out in the Evening was a good movie.

Good News

"New York City is on track to have fewer than 500 homicides this year ... this gives more credence to a suspicion I've had ... that the current low murder rates in this country ... probably make the whole concept of the TV police procedural unrealistic." Good news (but the image usually tended to be worse than the reality, which leads to some unfortunate social policy implications) and right as to cop shows. Those addresses on Law & Order tend to be fake too. And, the reasons are complex ... though Mayor Rudy will want you to think it's all him. (Hint: Crime dropped nation-wide).

Constitutional Issues

Whether the following provisions — D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?

The Supremes have decided to grant a hearing to decide upon the D.C. case in which the circuit court -- first time ever for a federal court -- struck down a local law as a breach of the Second Amendment. I have wrote a lot about the case here (comments), but a couple things stand out.

First, they took the case, even though the circuit ruling left open the opportunity of various regulations. No major circuit split -- the Fifth Circuit supported an individual right but upheld the regulation involved -- is at stake. And, the issue is pretty controversial. As I noted in the comments, limiting some provision to D.C. is a bit iffy. Second, the wording of the question appears to make it almost like some sort of privacy case. If so, that might not be a bad thing.* Check the links for further discussion.

Senate Majority Leader Harry Reid and Virginia Senator Jim Webb think they have found a solution to the problem of unconstitutional recess appointments: every three or so business days during the Thanksgiving break, they will convene "pro forma" sessions of the Senate, lasting only a minute or two. (The schedule was announced by Senator Webb on Monday.) They think this will prevent the President from appointing officers during this intra-session adjournment.

The person is not sure they are in the clear, even if he thinks the President has abused the "recess" appointment process. Still, I appreciate the attempt. Bush not only had more appointments than Clinton, but did so in a more blatant manner in various cases. Anyway, an effort to make a point, challenge Bush and uphold some important constitutional principle is appreciated. And, as this previous liberal leaning Democrat who served deep in Texas noted, having guts is appreciated.**

The framers of the Declaration of Independence evidently believed that happiness could be achieved, putting its pursuit up there alongside the unalienable rights to life and liberty. Though governments since then have seen life and liberty as deserving of vigorous protection, for all the public policies aimed at increasing economic growth, people have been left to sort out their happiness.

An editorial piece in the NYT recently discussed the pursuit of happiness, a central fundamental right that has constitutional significance. Its focus on the importance of happiness, including in public policy formulation, is sound. Still, a couple dubious assumptions. Money is still an important part of happiness. And, the "pursuit" of happiness is the inalienable right. Happiness itself, well, we shall continue to pursue it.

Some level can be achieved, but we are fated to always lack some aspect of finally reaching the goal. 'Tis the nature of the animal and imperfect society. Interesting article in the paper, btw, on how changes in the law have made contraceptives more expensive on many college campuses. My own member of Congress has proposed a law to address the situation. The connection to the subject at hand can be imagined.

Happy Thanksgiving.

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* Different cases put the Second Amendment among those that involve rights of individuals, but a steady theme (to cite a 1980 ruling) is that "the Second Amendment guarantees no right to keep and bear a firearm that does not have 'some reasonable relationship to the preservation or efficiency of a well regulated militia.'"

** Joe Conason btw suggests how even attempts that seem to let people off the hook or achieve only partial victories do a lot:

Those questions date back to McClellan's first remarks on the subject, when he famously said that the president would dismiss any official determined to be responsible for leaking Plame's identity. "If anyone in this administration was involved in it, they would no longer be in this administration. There's been nothing, absolutely nothing, brought to our attention to suggest any White House involvement." Sworn testimony eventually proved that the leakers included Libby, Rove, former Deputy Secretary of State Richard Armitage, and McClellan's predecessor, former press secretary Ari Fleischer. The same raft of evidence also indicated that Cheney orchestrated Libby's leak to New York Times reporter Judith Miller.

IOW, the investigation -- investigations congressional Republicans tended to deem off the table -- brought much to light. That's not enough, but it's something.

Deterrence Red Herring

My stance on a NYT article on new evidence the death penalty might deter is akin to this one. [The article notes that proof here can be a dubious thing, but there probably is some net deterrence.] I get off the bus as to allowing it in "a very small number of crimes of such moral atrocity" even if that is "a suitable moral response." How are we supposed to do that equitably, especially with additional risk of arbitrary application? They also tend to be done by people where free will is particularly unclear, making societal execution dubious. If anything, deterrence -- murder in prison or in an escape -- might be a more just reason. Dubious still, but perhaps a bit less so.

"Hill Stalemate"

And Also: My paper has a nice article on on the importance of teaching children the power of the "thank you" and gratitude overall.

Here is the Salon piece on the occupation funding bill referenced yesterday. The NY Daily News had a better framing of the situation, but still left out a key fact.* Is this really so hard? It would seem to me rather logical and obvious that what should be included in any account is the vote itself and the reason why said vote was not enough. The NY Daily News piece, a small one though it has a byline (aka not just "AP"), is entitled "Hill stalemate on war funding, troop pullbacks." [Kenneth Bazinet, who has gotten notice in the blogs etc. in the past, wrote the story. Cannot find a link.]

Now, though Rachel Maddow (Air America) appears not to realize that talking about an Iraq "war" instead of an "occupation" is controversial in some quarters -- she never raises the point to my knowledge on her show, though she is a popular left leaning guest commentator on the small screen, so should be aware of such stuff -- the use of "war" is fairly unnotable as such. So, the headline is a good start -- it gives you a sense of what is really happening, though not exactly. Why stalemate?

To some extent, it is Democrat failure, but the immediate cause is near total Republican unity (including in the House, where only a few stray ones -- finally including Christopher Shays [the much ballyhooed 'moderate' who all too often goes along for the ride vote time] -- supported the Dem proposal). And, the article did note the Senate Republicans "killed" (strong language, especially given the context) the "latest bill ordering troop withdrawals from Iraq." First sentence. A better article might remind that said troop withdrawals are required to take place by the end of next year, leaving tens of thousands there for some reasons all the same.

In dream land, therefore, it would be quite likely that the real responsibility would be the next administration (always can find some reason to delay a few months) and troops will be still stay to cause trouble. The good news -- dare to dream -- is that the Dems are now saying that if you don't take this proposal, we aren't going to give you any more funds to next year. This threat comes about six months too late, though it does underline that hey Congress has the power of the purse, and has to affirmatively okay such funding. No need of "60 votes" (crap anyway ... see the AG confirmation etc.) or "67 votes" for that. Remember, that there is enough funding now for current operations. It's something though, if they have the guts to keep it up.

[The article, strikingly, ends by noting that since the fighting began, Congress has appropriated more than $604 billion -- amazing given how the Iraq conflict was supposed to almost pay for itself -- for Iraq and Afghanistan. It would be interesting to know how much of that was appropriated since January 2007. Hint: too much.]

Sen. Reid spoke of "The President and his enablers in Congress" being "afraid of being held accountable" ... so quoted the piece ... and this too is a great soundbite. Like George III ("he") of the Declaration of Independence fame, the President rightly is a suitable symbol of what is wrong these days. He is after all the PRESIDENT and the head of both the state and the Republican party. But, in both cases he is only the head ... he has lots of help. Or, as they say in the recovery movement, "enablers." Sen. Reid might not wish to dwell on the fact, but these include many Dems, including he himself in various instances.

For instance, Glenn Greenwald has focused on Sen. Feinstein and others, most recently those who can't bear to honor the Fourth Amendment. But, Reid himself helped, including by rushing the AG confirmation and by helping to let Bush Dog Dems to get off easy in their Bush friendly ways. And, that gets to the fact left out -- before the Senate Republicans killed the latest bill, what was the vote on the measure? Hint: a majority voted for it. This fact has to be underlined. The article (bottom half) did note that the Republicans used a procedural vote "to kill" (that word again) a measure that would start the withdrawal process in a month, and supply $50 million of funding in return.

[More here from TPM ... note how even there the true nature of what is going on was not fully expressed, surely not front and center. And, some comments are rightly pissed at it. This underlines how November 2006 was only the "end of the beginning" and a lot more has to be done to have a fully credible (a weak work in itself) government. Don't give me "you can do much worse" shit, okay? Some comments on a TPM piece on Edwards at first being hesitant to say that he would support HC if she was nominated -- realistically more fodder for the "she's the nominee, but we can't quite say that yet" meme -- did just that. Support HC in November, or get Rudy!! Ack!!!! We get this in November 2007?]

Still, the vote should be front and center, maybe even in the headline. Something like "Senate majority supports withdrawal, Republican block it." "Hill stalemate" spreads the blame around, which is only partially accurate. People should be reading their papers and noting while drinking their coffee: "hmm ... a majority of Congress wants to bring the boys home -- sort of seems time, huh? mess over there and with the holidays and all, makes you think -- but it says here the Republicans 'killed' the chance. Doesn't seem kosher, does it?" Fact is, many focus on the lede and only glance at the contents of the articles, especially on such a "stalemate" matter as depressing as this one.

This is how process -- here how a story is being told -- affects substance. It all ties together. See also, this important apparently "inside baseball" analysis of a review of the ethics of Bush's legal advisers failing to follow their obligations -- which were more than telling the administration what they wanted to hear. And, it reaffirms a basic point of mine -- the law is usually best upheld outsides of the courts.

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* Opposite the article analyzed below are the usual quickie wire account pieces. One discusses some fake currency seized by federal officials featuring Ron Paul. The far right rather him than some of the typical ex-presidents on our (real) coins. This gave more fodder for the blogger doing good work underlining (since the press barely mentions Paul at all) that for those who wish to support a true maverick candidate, Ron Paul leaves something to be desired. His campaign denies any involvement but it is telling all the same, especially with the other background the blog supplies.

Political Thoughts

And Also: A priest gets in trouble (legally) in a sex scandal ... involving adult females. BTW, I'm reading an interesting collection of vignettes entitled She Captains: Heroines and Hellions of the Sea by Joan Druett. Who knew there were interesting books in the 380s?

Some political comments ...

Charlie Brown Had A Better Shot At Kicking That Football: Another time when a minority in the Senate blocks a leaves something to be desired "restrain Bush on Iraq like a majority of the American public wants" bill passed by the House and supported by a majority of the Senate and we hear how "the Senate" (Salon even framed it that way) rejected it. Likewise, the Dems, even if over forty of them voted for the measure, refuse to force the minority to have a real filibuster -- you know, continual debate etc.

Thom Hartman was on Rachel Maddow yesterday noting the Dems are not really a party as such as a coalition. Strange how a certain portion (Blue Dogs) keep on getting disproportionate power ... again, not being forced to suffer even a wee bit for their minority stance. Maddow is on a "proud to be a liberal" kick this week. Sometimes, it is hard to be proud to be a Democrat. Foreign affairs and executive power is THE issue of the day. Let's see if the Senate chokes on FISA.

Obama: Open Left disputes how a Talking Points Memo piece framed the issue, but the overall point of the piece that various members of "the Left" are concerned with Sen. Obama is true enough. I sure am. The Paul Krugman piece today that is cited by OL reaffirms the point -- he wants to be above the fray, provide a middle ground, but sometimes the right path is not the average of the two sides. Since we have gone to far right on some issues, this is actually a bad way to approach the situation. And, some of his comments on religion -- as mentioned in the past -- concern me. Talk of "faith" as if this meant certain religious believers per se.

Debates: There has been a loads of debates, though honestly, I think a large portion of the population does not truly know this -- often they are on cable stations that blogs and such might frequent, but not so much the general voter. There also seems to be somewhat fewer Republican debates. And, now Media Matters suggests all these debates uh sorta don't even properly cover the key issues of the day:

Through 17 debates this year, roughly 1,500 questions have been asked of the two parties' presidential candidates. But only a small handful of questions have touched on the candidates' views on executive power, the Constitution, torture, wiretapping, or other civil liberties concerns.

Sometimes, there are questions from the audience -- not just about Hillary's jewelry choices (see link) -- dealing with personal experiences. I had one that hits upon an important issue in the next election, going back to the Krugman piece, since it will be an important economic factor in the upcoming years -- health insurance. I am having some minor dental work done, and even with insurance, it cost a good amount of money. Many who have very little or no savings would not be able to pay it.

This is a sad state of affairs. Any Democrat is likely to deal with such matters better than the likely Republican choice, but we can expect better than that. We can demand better than that.

Sports Stuff

And Also: Marci Hamilton (a conservative), in an essay discussing an opt-out lawsuit involving the morning after pill notes that the controversy "is not a case of religion versus secularism, but rather, as usual in the United States, believer versus believer." Very true. The law in question requires a pharmacy to have at least one person without a problem supplying the stuff on call, even though some think they should allow referrals to a different pharmacy. The latter technique is my ideal plan, but it probably would run into supply problems in many areas. We are talking about time sensitive drugs here as well.

Like all the clothes at Steve & Barry's, everything in the Eleven line costs under $20. There are graphic T-shirts, down jackets, jeans, sport socks, visors and gym bags in all shapes and colors.

-- Venus Williams' affordable line of sports clothing hits store

Venus Williams was on Dave a month or so ago promoting her new sports line, EleVen, the name coming from her childhood address. The low price reflects her humble origins, and is a nice expansion of another athlete who promotes an under $20 sneaker. Too many teens are told "stylish" means spending more than they have for overpriced stuff. She should mix in the cheap prices with a "use some of the money you saved for 'x' (charity, college, mom, etc.)."

On the other hand, A-Rod will get his big paycheck ... $275, that is, from the Yanks for a ten year contract. So, it seems. The Yanks appeared to say that if he tested free agency, or tried to opt out of his contract, they would be done with him. But, such was not the case apparently, and now we are stuck with him. Well, that is how I look upon it, even if he is the "best player out there," etc. I'm tired of all these superstars on the team and recall the last time the Yanks got to the World Series, it was with another guy at third. Besides, he comes off as a jerk.

And, in the world of football, I caught the NFL Network replay of the Colts/Chargers game. The replay is an edited version with after game comments and stats sprinkled in. Two useful things mentioned. First, a NFL official explained why the Colts were charged with a false start at the key 4th Down play at the end. Second, Tony Dungy noted that after the call, he called a time out mostly for "spite," to argue with the officials. He noted that this was a problem, since the time out turned out to be rather important -- it would have gave the team almost forty more seconds to get into field goal range.

Of course, he thought -- along with most people -- that the field goal would be made. Like a key time about a decade ago when a never miss kicker missed, leading to the Falcons getting to the Super Bowl (where they were blown out), we live to see assumptions like that fall. Not quite the case with A-Rod, except that his agent didn't quite get the chance to be totally greedy.

Not Playing It Safe

TMQ, see blogroll, repeatedly is annoyed when loser teams play it safe, going for meaningless field goals instead of risking it for seven. Well, SF risked it at least twice last night, leading to a 24-0 score, instead of something like 24-6. Don't see the praise ... do see his usual off-topic blather. This time, in part, it's anti-Gore, including Gore getting a Nobel for "hectoring." Potshot at his 2000 election fight as well. Curious why I haven't been reading him this lately.

Ron Paul

I like Glenn Greenwald, but as noted here, he seems to have drunk too much of the kool aid on Ron Paul. It is telling, btw, that the guy caucuses with the Republicans. But, whenever someone calls like Thom Hartmann or whatever, and says "hey, Ron Paul sounds like a good choice," there is a lot of ammo. His "states rights" stance in particular -- flag burning? Well, the feds shouldn't ban it ... states? Sure, if they want. [He's also "pro-life." And, other conservative stuff ... check the link.] No, that isn't how "libertarian" works.

The Brothers Manning Have A Bad Night

False Start. Was this the Giants' 0-2 beginning? Or, the 17-17 First Half vs. Dallas? It surely was what happened too many times -- at home -- yesterday, false start penalties that is. And, overall, after beating the scrubs, the Giants lost against the big boys again. Brett Favre and Tony Romo continued to win, Eli Manning managed three points in the Second Half. Arizona showed up, which they have done off/on this season, another Wild Card hopeful (and also somewhat surprising winner) ... Detroit ... also lost. Are they for real? Perhaps, the match-up between the two next week will so determine.

Not that elder Manning had a good night -- the time when Eli and company truly came up small (down 31-20, they could not even manage a Fourth Quarter field goal, which would at least made the ending interesting) -- though it seemed like ala the Cowboys vs. the Bills (the Cowboys missed a two point to tie, but then recovered an onside kick and went for the win), they would manage to survive. In fact, it was San Diego -- underachieving but in a loser division -- that survived. They went ahead the injury laden Colts, perhaps still suffering a lingering hangover from blowing a late lead vs. the Pats, 23-0, but with two basic problems: defense and special teams were the prime reason they scored, and they missed a PAT. Well ... that was the score mid-Second Quarter.

SD scored nil for the rest of the game. Meanwhile, including via a ball lost in the end zone (up 23-15, deep in their own territory, SD failed to play it safe), the lead suddenly was 23-21. However, the Colts failed in their second two point try, so the Chargers hanged on -- very early in the Fourth Quarter (if in a rain storm) -- by their fingernails. Miraculously, neither team scored again in the next fourteen minutes. Former Pats steady kicker missed a 42yd try at the end of the First Half, but it was a rushed job apparently (didn't see it). He got a chance again ... and the SD had two bursts of luck. Out of time outs, a first and goal at the 6 was overturned by official review ... it was inches short. And, the Colts was called for a procedural penalty (perhaps questionable) while trying to probably get SD to go offsides. 4th and 6 now.

Still, around ninety seconds left, the Chargers doing nothing on offense, and it was a gimme under thirty yard field goal. Would Manning survive a five interception night? Nope ... though he would get the ball back one more time, the game ending on another interception. As the radio play by play noted with emotion -- Sunday Night football is actually better on the radio -- he missed! Manning, already looking stressed after the second interception, had a "why me" look on his face. SD did go three and out, leaving the Colts on around the 35yd line with twenty or so seconds left. On some other day, versus a different nemesis, that might have been enough time. Not last night. Thus, the elder Manning is in a bigger losing streak than his little brother.

Of course, unless disaster happens, he is likely to still have a first round bye. And, he is quite good in those commercials. Always good to have a back-up plan.

Lars and the Real Girl

And Also: In football, St. Louis is no longer a total loser, but Miami is, though they had leads of 3-0, 3-2 (really) and 10-2. In honor of Veteran's Day, I give you Doonesbury's The Long Way Home. Its value is suggested by the person who supplied the intro ... Sen. McCain.

Ryan Gosling is one of the best young actors out there today as shown by Fracture, a movie whose very purpose in being is to see him and Anthony Hopkins go at it. Another movie where he played off well against his co-star was The Notebook. Lars and the Real Girl is also about something of a loner (truly here) struggling through pain in a small town, if rather different, obviously. Some reviews thought it a bit of a lark of sorts, his chance to play some quirky independent role, but they don't do the movie justice. Roger Ebert's respect for the movie is more on the money.

As he notes, Lars is a loner struggling through serious emotional problems ... if functional ... who one day gets a real doll (these things aren't cheap btw). "She is, they learn, named Bianca. She is a paraplegic missionary, of Brazilian and Danish blood, and Lars takes her everywhere in a wheelchair. He has an explanation for everything, including why she doesn't talk or eat." She clearly is a psychological enabling device, someone this person who can not bear to touch others can care about without being hurt in the process.*

Patricia Clarkson, another great actress (she was in an earlier film, Pieces of April, from the guy behind Dan in Real Life; see also, The Station Agent), is the local doctor/therapist that counsels his brother and sister-in-law that they must go along with him, since Bianca is quite real to Lars. Though the brother is skeptical, the wife is more understanding, and brings on others in town to help out. Bianca in fact sorta becomes part of the community, even being elected to the school board! Meanwhile, this provides Lars both a chance to talk to the doctor and connect more to the community.

The ultimate charm of this film is that is played straight with an excellent ensemble cast. Ryan Gosling is very good, playing another character who we know is trying his damnest to hold it together, but has so much hurt underneath. But, the rest of the cast is very good as well, including Kelli Garner as a co-worker who has a crush on him, and has a few issues of her own. Quiet movies like these especially are ultimately based on supporting cast, including unknowns or people you just know you recognize, but don't quite know from where.

One review called the film a parable of sorts, and it is a bit of a fantasy look at a small community. Not living in one, I can't tell, but I think there are ones like this all the same. Ones where people are willing to accept someone they know is hurting, even if he has a major character quirk. Anyway, that is a lousy reason to dis a film, since film generally tends not to be that real to life. Many movies involve a bit of what should be.

And, as Ebert noted, referencing its PG-13 rating (after all, it had no violence, bad language or sex ... the doll is always clothed): "It could inspire conversations between children and their parents about masturbation, loneliness, acceptance of unusual people, empathy." These things affect all so many people, and it is well for a movie to seriously raise such issues. The movie overall can be said to be quite humanistic, ultimately concerned with empathy for a hurt animal among us.

This seems to be a theme this season, often expressed through violence and physical sickness, but also in some other ways as well.

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* At least one review focuses on the sexual nature of the doll. Are we to believe he never has sex with her, and if so, is that supposed to be a good thing? That is, isn't sex a natural part of the human animal.

But, this misses the whole point of him getting the doll -- it is a relationship thing. Furthermore, Lars sets it up that he won't be able to do it anyway. He has her stay in his brother and sister-in-law's house. Finally, not only does he have touch issues, sex would not only hurt the backstory of the doll, but given his mom died in childbirth with him, it very well might raise other problems. This is a case where a reviewer doesn't really respect and/or understand the film.

Fair Game

And Also: GG underlines that it is a lie that "60 votes" needs to be present to do anything in Congress, except when it is Republicans who block things. And, the reason the AG confirmation (heck it's only torture and executive overreaching) was rushed (this sends a lousy signal btw ... do they even care?) through is lame (a major political sin in itself) too ... even a short delay would suggest the block is not just a handy minority tool. And, AGAIN, Dems are cowards ... afraid people with under 30% support will call them weak on defense. Pathetic. Sorry, been thru too much to settle. When that is the result, including in 2008, I feel cheated.

I have just finished reading Fair Game: My Life as a Spy, My Betrayal by the White House by Valerie Plame Wilson. It is a bit of a strange read. An ongoing lawsuit alleges that the CIA has deemed too much of the information, including her term of service, is classified. But, even if material is in public domain, the CIA does not want her to confirm it, and argues some of taken as a whole might supply hints to classified material. Since the CIA -- even though it is public knowledge -- does not want her to confirm her years with the agency (1985-2006, six years plus overseas), her account also lacks some connecting tissue -- it would at various points hint at the classified material.* Thus, we are left with a book with significant portions -- more so earlier on -- interrupted by blacked out read

Though this hurts the flow of the book, and Plame (who has no co-author) can be a bit dry at times (sometimes a bit of background flavor can help, but it might be that she was limited on what she can say), the book is still a good read overall. Laura Rozen, chosen by the publishers and kept separate from Valerie Wilson while she worked, wrote a somewhat brief afterword to flesh out some details. Personally, I think it could have been a bit longer, but those interested can search for some of Rozen's other writings (she also has a blog) that dealt with related subjects. To take a for instance of what the afterward supplies, we learn that [Redacted] Tour covers Plame's service in Athens,** and [Redacted] covers her service as a Nonofficial Covered Officer [works for the CIA via a non-government cover job].

The most important lesson from the book is that the government provided a lot to train and equip "Val P." (as she was known in training) with the knowledge to serve her country, and serve she did in very important ways. After all, a major part of her career was spent investigating the problem of WMDs, in Iraq particularly, including finding creative (and secret) ways to collect information on the true nature of the threat (in one chapter, she ironically supplies a long list of the quite real threat Iraq could have supplied). It is almost amusing that certain sorts want to demean her career, especially given the amount of redacted material in her book. Her husband, whose consulting business was ruined as well when Plame was outed, also had a long and industrious career in public service.

This underlines why Plame is one of the top examples of what is wrong with the current administration and their enablers. Many examples can be supplied, and the point is obvious to anyone who doesn't want to lie to themselves or America (sadly, this involves all too many people, especially as to the depth of the problem), but a few blatant examples are helpful symbols. I think the idea we should amendment the the Constitution to hurt homosexuals is particularly offensive one. But, this too. A couple who spent their lives serving their country (Plame's father and brother were in the military, the brother seriously hurt in Vietnam) were spit upon because Joe Wilson dared to be critical to the administration. This is sickening.

[BTW, it is amusing the Wilsons went to the same church as Karl Rove ... though I thought Rove said he is an unbeliever.]

The whole thing also suggests how much we were lied to and bullshitted. The Vice President asked the CIA to check up on the Niger claims. [When the news came back nothing was there, suddenly we learn the VP wasn't really informed about the reports or anything.] Someone -- not Plame herself -- suggested Joe Wilson. Why? Because given his background as ambassador to several African countries and the like, he was a logical choice. The CIA often used outside individuals to collect facts in various ways. Plame did not lead the department or anything -- she did not have the authority to send him over herself. JW had only his expenses paid; Niger is not Paris. Finally, he only confirmed other reports that found the yellowcake claim dubious at best. All the same, even after being warning at least once not to do so, the President implies there really was something to the story.

Wilson is upset. But, does he write the editorial then and there, before the war? No. He waits, after being giving the brush off, until months after the invasion and "mission accomplished." And, what happens? He is blamed ... it is suggested he just went over because wifey wanted to give him a plum ... Wilson's cover is blown, ruining the chance for future prestigious overseas duty and hurting her career in the CIA in general. The fact that Wilson's findings were confirmed also ignored ... Glenn Greenwald would not be surprised that one guilty party here was the Washington Post editorial staff. An investigation, asked for by the CIA itself, was interfered with by Cheney's main man, but this didn't warrant even a day of jail time. Senate Republicans help the cover-up and smear tactics. And, so on.

One thing that drives me crazy these days is how many people miss the point or eat up spin that leads to bullshitting. It eventually came out that Richard Armitage might have been the first person to leak her name as a bit of "gossip," leading to some shouting that all the claims that Plame was outed by others was a big mistake, ditto the whole Fitzergerald investigation. B.S. Not only should an assistant secretary of state know not to talk about CIA agents like that, there was clearly a parallel effort to use the Plames for clear political CYA reasons as well as for general payback. The title of the book itself came from Karl Rove saying she was "fair game. And, I love this idea people have some sort of pass to lie under oath and impede investigations that might turn out not to go anywhere.

There is a rot here. A couple who served their country well, using their gifts in a way that provided less fiscal benefits than was surely possible, are but two victims. Their story, however, provides some hope of what is out there, the potential to serve this country well. As more and more [redacted] goes on, this is the best thing to remember. Writ small, the Wilsons went to New Mexico after it was over, and started a new life with their twins (Joe Wilson also had twins with his first wife). [A touching chapter in the book btw deals with Plame's postpartum depression.]

So many other parents also "just" go about their lives, ultimately doing more good for this country than a good number of those who claim to be our leaders these days.


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* Other former CIA agents have received the okay to write detailed accounts, including Lindsay Moran's Blowing My Cover, and Plame logically should have an idea of what was okay and not. So, I am led to believe her claims she was treated shabbily by the CIA's Publications Review Board, including the false claim that she did not try to work with them through the dispute. She was not the only one critical of the Bush Administration that had a bad time in that department [Flynt Leverett was mentioned]. And, the selective concern with classified information has been covered by many accounts.

Since she retired in her 40s, Plame needed a special bill to get retirement benefits ... she had her twenty years, but did not meet age requirements. A letter was apparently accidentally sent to her by the CIA to confirm her years of service, a letter attached in the Congressional Record when that bill was submitted in January 2007 (Plame argues this declassified the material, but she lost her first round in court). In fact, Joe Wilson's book, also submitted, mentions her years of service. Joe Wilson btw suddenly pops up [though the afterword notes they met at some party that didn't sound too interesting] after a redacted portion involving dogs in a baby carriage.

** If her service in "Athens" is a problem, it is interesting that she was allowed to include a picture of herself in front of the Parthenon in "Athens, Greece, in 1990." Are we supposed to assume that it was just some sort of vacation trip or something?

Offensive Judgment For Offensive Speech: Two Wrongs Don't Make A Right

And Also: Corner Gas (WGN) continues to provide a nice midnight snack (a side of wry), but what is with that new Burger King commercial idea in which a trio of moms hire a hitman to off the (admittedly creepy looking) "king" because the new sandwich is "better than mom could make." The follow-up has them trying to hit him with a car! This is largely a family business (hmm ...), right? No mention of the NY ballot measure on the election round-up in the news per my usual morning radio news source.

Last week, a federal jury in Maryland ordered the Westboro Baptist Church, its leader Fred Phelps, and several other church members, to pay $10.9 million in compensatory [$2.9 million] and punitive damages [$8 million] to Albert Snyder, the father of a Marine who was killed in Iraq. Snyder sued after the defendants displayed extremely offensive signs near the site of his son's funeral, and posted defamatory messages [the judge dismissed this aspect of the case] about him on their website.

-- Michael Dorf, "Does the First Amendment Protect Highly Offensive Speech at a Funeral and Directed at the Deceased?"

This judgment was handed down before Maryland passed a law against picketing funerals, so general common law principles and such would have to be used to justify the judgment. I simply do not know how one can do so. First off, where actually did they get that sum? The overall claim is one for reckless infliction of emotional distress for protests that involve such signs like "Thank God for Dead Soldiers" and "God Hates Fags." It is not rocket science to find that this is "highly offensive to a reasonable person," but so is marching down the street in a community filled with Holocaust survivors. That speech was deemed protected, however, and even there millions in damages was not the issue.

[Eugene Volokh has several posts about this judgment, including on damages. Recommended.]

A person can be suffer a serious physical or emotional injury from a negligent individual and not hope for a portion of such an award. The anguish a family must suffer from such crude protests, having to deal with the death of a son in the first place, is obvious. But, any number of people suffer from comparable crude speech, and get nothing. A woman who has a health problem might have to pass protesters with signs with fetuses and deal with chants of "murderer" and the like. The law, and court rulings, have determined they should have clear access; a buffer zone might even be set up around the clinic. But, we are dealing with feet here. The protests can go on. They cannot be totally avoided.

There ought to be a law against people like Fred Phelps. His claim that American combat deaths in Iraq are God’s response to America’s tolerance of homosexuals is both offensive and preposterous. His decision to gain publicity for his cause by picketing funerals of Iraq war victims is reprehensible.

-- Mark Graber

The opinion piece was concerned with the judgment itself, but this is a dubious starting point. If there "ought to be a law," it cannot be content based. Pat Robertson nodded in agreement when Jerry Falwell (involved in a famous lawsuit involving a mock ad suggesting his "first time" was with his mother in an outhouse ... the Supremes struck down a judgment 8-0) suggested liberals were a prime reason God allowed 9/11 to happen. He now supports Rudy's presidential bid. That suggestion (both really) was offensive and preposterous too. Doesn't mean he can be sued for saying it. In fact, if some peace group picketed, it could be just as bad.

Privacy concerns plus offense -- what if they suggest he furthered a murderous war? Privacy is a primary concern here, as shown by the analysis and comments linked. Time, place and manner limitations have been upheld, including to protect privacy. This is a limited thing, however. Again, the abortion protest rulings only set up buffer zones, and even then, generally we were dealing with after the fact injunctions and such ... not a civil judgment of significant size, handed down before the behavior was clearly deemed illegitimate. Another case referenced by Professor Dorf upheld a ban on picketing of private homes, but putting aside the dissents (6-3), focus on a private residence is not quite the same thing as a funeral (a one time event) in a public space.

And, Phelps is said to have staid over a thousand feet away. This is important, since I can imagine some reasonable law that provides a buffer zone around a funeral. For instance, on Tuesday, I passed a sign reminding that you cannot picket a polling place within a certain amount of feet. Fine enough, especially given the importance of easy access and fairness concerns (equal time would require a lot of people right need the polling place). But, a person with a sign a few blocks away would surely be legitimate. Such a person might also have offensive literature. No buffer zone will prevent all speech or offense. The wily sort could still take advantage of others' pain (many sadly do this, almost as a profession), making a spectacle of the whole thing. It's reprehensible, but generally not actionable.

A final issue is that neither the family nor the dead were public figures. Time v. Hill, also an invasion of privacy case, involved crime victims who challenged a portrayal of the crime long after it occurred. This was deemed "public" enough to be protected. A Marine who died in Iraq seems to me also a matter of public interest, covered in local news and so forth. Anyway, ultimately, we are dealing with private events. Public figures have some privacy too. So, the public figure issue -- would we be okay with this if the mayor's son was involved? -- seems to me something of a red herring.

A content neutral law that bars protests at funerals very well might be acceptable, and/or upheld if challenged, but the judgment at issue here is much more dubious.

Election Day

And Also: House was pretty good today, though we seem to have yet another character, the old team hanging around as well. Seems too busy, and again, I thought the old team leaving would mean we would move on from them.

No primary for my district, but did have a few things to vote for today. Couple local judges (nomination process challenge pending), tends to be cross-nominated. Token opposition to the borough prosecutor, best known for his anti-death penalty views (death penalty suspended for few years per court challenge). At least, I knew about him ... voting for judges always seems pretty stupid to me, since who knows anything about them? And, there tends to be only token opposition.

And, a ballot measure that I only knew about when I got to the polls (lever machines on way out; need to sign book, proxies available as was poll challenge information) since no voter's guide came this year. Involving a state park, a statewide vote was required; it was a water matter important for a tiny upstate community. It passed with flying colors, but a better means -- like a significant mention in weekend papers or something -- should be available if we are asked to vote on such things. The background actually sounds a bit interesting too.

[The news this morning that I listen to mentioned "four" NJ ballot measures, including one on stem cell research, but not the NY one. It is a NYC news station after all, right? A flyer in the mail would have been useful too ... who knows, maybe it didn't get here, but one doubts it. Get with the program local pols. Of course, I could have done more research. Get with the program, local voter.]

That voter guide would have been helpful too. Still, always nice to do my citizen duties, especially when it does not involving losing money via jury duty. Never have any problems -- lines etc. -- at my local polling place, logically found in a school. Maybe, it will be a bit more messy in 2008, but no Ohio here. Still, how do they recount lever votes, anyway?

Dan In Real Life

Dan is a fortyish widower with three daughters, writes a local family orientated advice column, and has a big extended family. And, still has a hole left by the death of his wife four years before. When going to visit the family, he happens to meet and fall for a charming woman. Unfortunately, turns out to be she's going out with his brother, and she is there to stay over as well.

[Talking about unfortunate, the Jets loss is OT ... the back-up and defense showing just enough to give one hope, but not enough to win (though, again, the offense didn't always help -- including a key turnover, plus the inability to close the deal in OT). And, the Pats won too ... if by a more reasonable score than usual. Oh well. When will St. Louis and Miami -- both had byes -- win? When will the Pats lose? Will the Giants show up next week vs. the Eagles, the first good team they played since Week 2? Time will tell.]

This makes the stay rather hard to take for poor Dan (Steve Carrell, of The Office etc.), whose is really put upon down -- he comes off as pretty pathetic for a chunk of the movie, though you do feel for the poor guy. The movie is not too deep, but has just enough pathos to give it some weight, and not enough dark to be as depressing as many of the movies out this season. Dan In Real Life (the name of his column), particularly the good ensemble cast, is worth watching, especially if you can be a bit forgiving for its limitations.

Generally a nice thing to do, if possible, anyway.

Lame

Some argue MM is the best we can hope for. But, even if we take this as a given (dangerous), the way Chucky and Diane has done it is rather lame. In fact, no fight at all might be better than a lame concerned nod (aka "the Specter"). As that last link notes, it also furthers the "all are bad" claim, which is both wrong and annoying. The "lose the battle, win the war" principle only works when it is done with more finesse than shown by too many Dems these days. BTW, Congrats to Navy for ending a 40+ year stream of futility vs. Notre Dame, though it took to the third OT (after a failure to stop a 4th and 14) to do it. Talking about lame, ND has reach that point.

Interesting Standing Case and Legislative Obligations

And Also: I am about to read Plame's biography ... she's cute ... which looks a bit long, but then again has plenty of redactions. Rails & Ties is too hackneyed, though having some good performances, to warrant a link. Marcia Gay Harden probably is due for another film soon enough anyway.

In a taxpayer challenge to the Indiana House of Representatives' practice of opening each session with a prayer, the district court's permanent injunction forbidding the practice is reversed and remanded with instructions to dismiss for lack of jurisdiction where, in light of the Supreme Court's holding in Hein v. Freedom from Religion Foundation, Inc., 127 S. Ct. 2553 (2007), the plaintiffs lacked standing since they only alleged an expenditure of government funds in violation of the Establishment Clause rather than an explicit legislative approval of the practice.

-- Findlaw Summary of Hinrichs v. Bosma

The 7th Circuit has furthered the efforts of reducing costs by cutting down the ability to challenge alleged constitutional violations by stretching Hein v. Freedom From Religion Foundation, a ruling involving discretionary executive action involving sectarian support of religion to apply to discretionary legislative sectarian support of religion ... even when there is a clear law that involves religious support. The majority in Hinrichs v. Bosma noted that a lawsuit involving a taxpayer challenge to the Indiana House of Representatives' practice of opening each session with a prayer " [did] not challenge any specific congressional action or appropriation." To wit:

The program, as it is presently administered, is not mandated by statute. The origin of the practice is House Rule 10.2, and that rule merely provides that a prayer or invocation be given each meeting day before the House conducts any business

As the dissent, which spent a chunk of its time honoring religious freedom in general (did a law clerk write a student note on the topic or something?), reminds that "They are challenging a legislative act, and they have alleged concrete pocketbook injuries." The amount is pretty trivial (okay, very), but then again Madison warned against that "three pence." And, establishment of religion is about a lot more than money, though yeah, we are talking taxpayer standing here. But, the problem was not the small amount of money. The claim is that unless the legislature directly authorized the practice, setting up an overall plan that in some fashion might be carried out legitimately is not enough, taxpayer standing will not ensue.

This stretches Hein [involving executive action] and is yet another case of encouraging the "wink and nod" approach where there is enough CYA material there, but the spirit of the principle involved (and the actual practice, for those willing to look) is still quite problematic. Reference again the whole "waterboarding is torture" issue* ... the ever continuing attempt to find a figleaf, which was only of limited value to Adam and Eve, and continues to be today. BTW, someone argued elsewhere that my reference to judicial legitimacy of unconstitutional acts to legislative legitimacy amounts to apples and oranges. Legislatures just act to get elected. As I recall, they too swear/affirm to uphold the Constitution. [Art. VI] As Justice Kennedy noted in his Hein concurrence:

It must be remembered that, even where parties have no standing to sue, members of the Legislative and Executive Branches are not excused from making constitutional determinations in the regular course of their duties. Government officials must make a conscious decision to obey the Constitution whether or not their acts can be challenged in a court of law and then must conform their actions to these principled determinations.**

We give them a pass at our peril, especially when the federal judiciary -- including in matters important to many more people than legislative prayer -- finds various ways not to decide things with clear constitutional import. Anyway, as I also noted in my reply, in various cases non-judicial action influences judicial interpretations of things like "due process," "reasonable" searches and seizures, and "cruel and unusual" punishments. IOW, the core issues of many of the matters currently being debated regarding executive overreaching and so forth.

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* It was also noted over in the comment string in which I put a form of my argument expressed here that Congress in a recent law made certain behaviors (which primary backers such as McCain held to include waterboarding) criminal but did not provide criminal sanctions. I'm inclined to think that there probably are some laws that can be appealed to address such actions (if a federal law official cannot waterboard an alleged Malvo-like sniper, and be liable for criminal charges if s/he does so, are thinks okay if the person is involved in a terrorist situation?). But, I admit that at some point the nuances of these things get a bit confusing.

All the same, even without criminal penalties, many civil remedies are available when something is clearly against the law, surely when a law against humanity is involved. For instance, those who aid and abet can be impeached, if they are federal officers (members of the military can be targeted in other ways). This includes those officials who allow criminals to continue to work for the federal government. If it is not so now, a law can very well refuse to pay those who torture. And, various civil damage actions can be imagined, actions that can have various negative results that have a deterrent and punitive function as well.

** In that comment string, "cbolt" also notes that sometimes this obligation is ignored and there is nothing we can really do about it ... it is the "way of the world." Sure. But, when the "way of the world" starts to get particularly bad, we start to notice. The changing of the guard in 2006 was in significant part a result of a perfect storm of bad results, incompetence and clear legislative malfeasance. [Policy alone wasn't the deciding factor; process touched upon all of these issues as well.] We have low opinions of politicians, but we still have standards.