Huckabee and A Full Look At Renegades

And Also: Keith Olbermann admits an error in judgment and it sadly is deemed pretty special. And, he did it with more class than Chris Matthews over the top apology, which only addressed one of many offensive comments. [See, e.g., Media Matters.] KO btw also has "soft" stories on his show, the celebrity stuff many think plagues our airwaves. You can have both in moderation.

Glenn Greenwald got upset when various bloggers were appalled at his supportive posts on Ron Paul. He, after deigning to only sorta cover (and do so poorly) Paul's abortion position in a brief update to one of the posts, emphasized that Greenwald was not endorsing the guy for President. Greenwald was discussing how Paul's concern for executive tyranny and violations of civil liberties (generally by the federal government; and that is a large part of the rub here) was not getting enough attention, even though supporters have underlined that many even in the Republican Party deeply care about such matters.

It was not his concern to supply a full-fledged account, nor did he mean to endorse Paul or any other candidate he said good things about in certain cases. I found this unconvincing in various respects, including the fact it didn't justify the snide way he treated his critics and the slipshod way he responded to the criticism. A honest account would have referenced Paul's advocacy in a more full-fledged way, since that is the way to truly get a feel for the guy and his critics. We simply cannot treat such people in a vacuum. It is not totally different from voting for a guy because he seems like a nice guy, his positions be damned.

Politics is about compromise, so you sometimes (often?) support people who have some flaws that are troubling. All the same, when dealing with someone who supports a constitutional amendment against abortion and the so-called Defense of Marriage Act, while supposedly being a big states rights guy who had a limited view of federal power, well something in wrong ... even without going into other excesses of his fear of federal power such as the desire to strip major areas of jurisdiction from the federal courts and to seriously threaten Social Security. His run for President might be symbolic, but need we toss our protest votes with the likes of this guy?

Does Huckabee still believe that his narrow version of Christianity must dominate every detail of human existence in this country? He doesn't like to answer hard questions about the intersection of his faith and his politics, but it is long past time that somebody demanded a straight answer.

-- Joe Conason

Ditto Mike Huckabee. On Dave and Colbert, he comes off as a very likable guy, one who realizes that to be Christian includes worrying about the poor. The guy apparently read his gospels a bit more closely than some other of his alleged political fellow travellers. All the same, there actually is a reason why so many (including many National Review types) are so wary about the guy. And, it's not just because he threatens the Powers That Be with talk about the ultimate power. His true believer stance on evangelism is a problem.

Yes, to the extent such true believers were exploited by cynical Republican power brokers, we can have scorn. But, as with his lack of credible foreign policy bona fides, this does not make him an ideal candidate. Even if many might think he is particularly honest and able to shake things up. Change for the sake of change is dangerous. And, if we are honest about him as a serious candidate, it is fully proper to address his religious beliefs. He is making them public in character, using them as a reason to vote for him and as a core aspect of his political calculus. It is not in bad taste to understand this and ask questions.

One thing though ...

Not so long ago, he attributed his rising political fortunes, after many experts had written off his campaign, to the hand of the Almighty.

Shades of God wanting Bush to be President. On some level, on find such comments as rather unsurprising and even benign. Or, at least, benign if we accept the general beliefs of the people involved. Liberal commentators, including those who consider themselves "religious" (the quotes underlines my feeling that word doesn't just mean a belief in God and the usual exercises that grow out of that*), are sometimes uncomfortable with those who believe in an deeply interactive deity. But, taking this sentiment too far can be problematic, at least to the degree it calls into question the beliefs of many people the writers are fully comfortable about.

"A firm Reliance on the Protection of divine Providence" (capitalization in original) was recognized by the Declaration of Independence. Such a providence had some effect on human affairs. Millions pray to be guided by God and to thank God for the blessings they receive. Is not this a recognition of "the hand of the Almighty" guiding their lives in some fashion? Now, JC here discusses how Huckabee has expressed much more radical beliefs about God's "hand" so to speak, and the same can be said about Bush's beliefs and policies. Nonetheless, many do think God interacts with the world and has an active part in its workings. In some fashion, what happens is a result of what God "wants."

Some are wary to go too far with that or fall into the safety of vague generalities, but to the degree that is their right does not make it proper to totally avoid the question. Many who despise Bush also feel driven -- by a supernatural force or otherwise -- to a certain path in life as well. They might even say they were "chosen" for such a path or "must" take it in some way. Is this so much different from saying that "God" had a hand in things? The need to be modest about what God or any other personal or impersonal force wants is a separate matter. Quite important ... Christian believers should know the value of being humble.

And, in seeing the true person in front of them. This requires an approach a bit more deep than some seem to desire.

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* See my second comments here (the main entry also apropos to this post in general) on the use of "gay marriage" and so forth to underline how language can be trick and " " have various purposes too, not just as "scare" quotes.

2007 Movies

And Also: I liked David Letterman's beard. Stewart and Colbert still are fun without their writers. The new Terminator show is pretty violent (given the potential wasteland, thousands could be killed and it would be pretty minor actually) and messy -- doesn't that make it easier to get the lead renegades? Also, the terminators are pretty blunt. John easily could have been dead by now if they showed a bit more finesse. The leads also have that too young pretty boy/girl WB/CW feel. Still, it has potential.

[updated with note]

I plan to see one more 2007 movie,* so it might be a good time to have a list ...

I have not seen many of the films listed on some top ten lists, but did enjoy Once (on a Slate list). My problem was that I could barely understand some of the lyrics of the songs -- poor sound quality in the theater or perhaps the accents.

Films I really enjoyed included: Eastern Promises, Bridge to Terabitha (read the book too!), Waitress, The Nines (good chance for its lesser stars leads to have their day in the sun), and (for what it was, a well made period sports flick) Gracie. Starting Out in the Evening and Romance & Cigarettes deserve honorable mentions too.

Pleasant diversions: Dan in Real Life, The Jane Austen Book Club and Music and Lyrics.

Good indies: Descent and Day Night Day Night. Likewise, Juno was pretty enjoyable too.

Somewhat overrated: 11th Hour. Various "greats" I might not see; Gone Baby Gone was not as good as some said it was. It was one of many depressing films, so many that I saw only some of the major ones. Charlie Wilson's War was generally given a "good" not "great" rating; though it might get some nod at Oscar time, that fits.

Lousy remake: No Reservations. P.S. Love You was pretty lame, even though I said it was okay in some ways. Still, NR was probably lamer. See, Mostly Martha instead!

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* I did see the movie, Sweeney Todd: The Demon Barber of Fleet Street, the filmed version of the musical -- Mamma Mia! was one of the previews (the one with all the ABBA songs). Two of the stars and the director from The Corpse Bride (Johnny Depp, Helena Bonman Carter [great] and Tim Burton) again star in a twisted tale with a lovely creepy look. Good songs too.

The middle portion has a bit of a lull, but overall, it belongs on the list. The movie is sure to be nominated, and might very well win at least one technical Oscar, and at least one of the songs deserve a nod too. Also, the new Hallmark movie The Good Witch (with Catherine Bell) was cute. Sorta soft Alice Hoffman.

Supreme Court Watch

RIP: Once upon a time, my mom had a day off from school because this guy did his job particularly well.

It is not surprising that the Supreme Court overturned a lower court ruling that struck down the nomination process of judges in New York. Four justices (Stevens/Souter and Kennedy/Breyer) wrote to say "we agree, but we know the system isn't really fair. Stevens did that annoying thing where judges say "Hey, I think it's stupid, but that's not my call." Yeah, so don't tell us. He did cite Justice Thurgood Marshall, who left the Court for health reasons a few years younger than Stevens is now. Kennedy spent more space and tossed in an O'Connor wariness about judicial elections as a whole.

Justice Stevens mentioned Scalia's "cogent" settling of the constitutional issues, though Stevens (unlike the more partisan friendly Scalia) clearly thinks the law is "stupid." And, perhaps it is. Still, I'm dubious of Scalia tidbit: "The reason one-party rule is entrenched may be (and usually is) that voters approve of the positions and candidates that the party regularly puts forward." It is unclear that my approval (except in a pretty inactive/inertia sense) per se is the main cause of the entrenched judicial nomination process which is one of the few clear cases of bossism that still exists.

The voters simply do not pay much attention to judicial races and (and count me too though I did by chance know one personally) know little or nothing about them. This underlines why the process is such a joke ... and the core concern of giving so much power to party officials. "Entrenchment" writ large also has more complex reasons than implied here. And, "Does not the dominance of two parties similarly stifle competing opinions?" is more question begging than probably assumed as well. They might not want to "go there," but that's another issue.

Meanwhile, another recent ruling underlined how the balance of power in the Supreme Court matters, this time respecting corporate power. Which is particularly interesting, is that it was a 5-3 ruling ... Breyer recused himself apparently because he has stock in the company. But, the deciding vote (the alternative was a 4-4 null vote) was CJ Roberts, who once had stock, which he later sold. Oh? This is the sort of case that led business sorts to be concerned about judicial nominees of late.

Tidbit: Look who is being saucy: "After today’s decision, one will need a crystal ball to predict when this Court will reject, and when it will cling to, its prior decisions interpreting legislative texts." Scalia? No, Ginsburg.

Anyway, apropos to the election ruling ...

Election News: Also on the election front, the Michigan primary brought a Romney win (Wyoming apparently not counting). Since the state broke party rules by having it so early, the Dems (for now) is not accepting delegates, and two of the three top candidates took their name off the ballot. [The Republicans penalized their state party by depriving them of half their delegates.] Still, Kucinich (4%) and Uncommitted received over 40% of the vote, suggesting many are not totally comfy with Hillary Clinton. Mike Gravel voters also apparently still exist, though the results I saw had him at 0%.

HC got some kudos (from some parts) for saying how "pathetic" it was that Bush is over in the Middle East begging for lower oil prices. But, the fact that the Clintons are able to powerfully criticize the Right is well known. It doesn't end matters, though it seems to me a possible trap. Her conservative aspects can be covered up by enjoying shots at even more conservative people. Style over substance. Style that might very well be nice ... if other things made it feel a bit thin.

And, let me dissent from those who imply we are all signing kumbaya, so pleased with all the Democratic. nominees unlike those poor Republicans. Some clearly are wary of one or more of the choices. I simply love how Thom Hartmann (Air America), for instance, rails against corporate power and free trade etc., but would gladly support Clinton in the general. Suddenly, she is great ... because she can talk tough about the Republicans? Please. I guess she must be much more liberal than her hubby, who also should have kiss Newt's feet for salvaging his presidency by giving him a great foil.

But, at least, I know who the candidates are. Some might get too little coverage. Still, compare that to the deep Google searches (involving obscure local papers) required to get anything on some of the judicial candidates out there. Is it Sunday yet?

Football II: Upsets

Manning ... Eli Manning ... came off well yesterday, including leading the team to a score in about 1/10 (less than a minute vs. over 10) the time it took Dallas to do so, tying the game 14-14 at the Half. Dallas had three long scoring drives, but NY scored too, and held them in the Fourth. And, then, TO acted like the guy defending Britney with his crying routine (with big glasses on) defending Jessica's b/f. Who came off lame too. Oh, San Diego (again) beat the Colts, even with their B team playing much of the time. Meanwhile, the new Terminator series is pretty good so far.

Lethal Injection Protocols Oral Argument

And Also: Deterrent? Love this weather ... 60 one day, chance of snow, a few days later. Global warming or global insanity?!

The Supreme Court audio of the oral argument in the Kentucky lethal injection protocol case was broadcast on C-SPAN tonight and is also found on its website. See here for links to both. Why not have each audio available for download, with some more broadcast on C-SPAN? A few federal appellate cases provided videotape for C-SPAN, but fine, I'll take audio. Selectively picking out a few cases -- and most cases are not at all interesting to general public like this one -- is misleading and inequitable overall. In for a penny, in for a pound, right?

Audio adds flavor to the dry transcript (it's good they label the justices now) and provides further insights into the justices, and personalizes the proceedings. And, that matters, even if some justices rather not admit to the fact. Some people are more willing and able to listen and understand audio than read the transcript as well. In the comments of the analysis of the oral argument by someone able to be there, an additional concern is offered -- at various points, there were notable errors in the transcript. This btw is sometimes an issue in closed captioning as well.*

As to the actual oral argument, it was fairly interesting. The overall concern here is that there is a three drug cocktail that is given which leads to two concerns: the protocol itself and the way it has been carried out. The breadth of the ruling will be very significant:

Stevens began by asking Englert whether the constitutionality of the three-drug protocol itself it at issue in this case “or merely the question whether Kentucky has done an adequate job of using that protocol?” Only the latter, the lawyer replied. On that point, Stevens then said, “the record is very persuasive in your favor.” But then Stevens moved to what he was most concerned about: the use of the second drug in the protocol, the paralyzing drug pancuronium. “Do we have to wait for another case to decide that rule?” he asked. “I am terribly troubled by the fact that the second drug is what seems to cause all the risk of excruciating pain, and seems to be almost totally unnecessary in terms of any rational basis for requirement.”

The defense basically offered the idea that the best path would be a one drug protocol involving just barbiturates, though Justice Breyer raised the concern that there is some evidence that this does not work. Also, basically, since the lower court did not think it necessary and/or it was not really supplied in the factual hearing, the safety of the various options was not really supplied -- thus, the state repeatedly warned that questions of that sort were really outside the record. This leads to some, including some who oppose the death penalty as a whole, to cynically think this is just a delaying mechanism:

That got him [representative of the federal government] into trouble with Justice Scalia. If comparative analysis of various execution methods is undertaken, Scalia said sharply, “this never ends. If that’s part of the analysis, there will always be some claim that there is some new method devised and once again executions are stayed throughout the country.”

This slippery slope argument only takes you so far, since there always will be a claim -- on both sides -- that some method or procedure is okay or not okay, some attempt to get the camel's nose into the tent, so to speak. It is the nature of the game, to be honest. So, the courts have to draw lines. Surely, however, when dealing with the death penalty, at least one full review of this method of execution is legitimate. I think it useful to require the high court (and indirectly the rest of us) to periodically be reminded of the messy nature of execution as a general matter, but it is specifically important that there is at least one review of key issues as well. And, honestly, there is no clear rule as to means of execution, surely not of lethal injection in particular.

Scalia and Alito implied that the defense would argue no means of execution over the years would be constitutional. First, precedent and the defense did not say that; the concern was unnecessary and lingering death. [Sure enough, btw, that the probably core concern here was delaying execution. But, there is an additional concern that the death is as humane as possible, sometimes leading prisoners to want to be "volunteers" and rush things along. Overall, no matter why the case is brought, there is a general public interest in ensuring constitutional means of punishment. Or, the best we can get.]

Now, there is a reasonable argument to be made that made used were not -- the Supremes were going to examine execution until Florida replaced it with lethal injection -- but it also is true that over time society constantly tinkered with the means of punishment. Like the Catholic Church once noted as to the death penalty possibly necessary in past ages, it is quite reasonable to argue that a means of punishment is no longer constitutional (or "necessary" ... and as McCulloch v. Maryland showed, the word has multiple meanings) because other means are now possible. Or, that some measure over time was deemed cruel and unusual. History, for example, colored the legitimacy of hanging and the lethal gas.

Since even Stevens thinks the protocol is probably being applied legitimately, the key issue then becomes if the protocol itself is legitimate. Souter, with some passion, thought it proper to decide that question now, instead of just waiting another eighteen months or so (unsaid, but notably, possibly with some people executed via protocols whose legitimacy is still an open question) for a clearer case that specifically raises that question. The Supremes these days like narrow questions, but besides punting messy questions to mostly out of the limelight lower courts (with judges more easier confirmed), this is a somewhat dubious technique in some cases.

A one drug protocol might not work, I don't know, but the necessity of the second drug is unclear here. The state was repeatedly asked why the second drug was used. One, there was no problem with the technique, since the safety mechanisms made it constitutional and safe overall. Second, dignity for the inmate and those viewing the proceedings. The specter of a dignity claim was raised if the Court requires the second drug not be used, though it seems questionable if the state would be forced to use a method (for argument's sake) with a risk of excruciating pain because the alternative would be somewhat undignified. That is, if the inmate actually wanted the drug omitted, s/he would be forced to take the risk.

[The procedure raises various problems, not limited to this case, and the idea it is the best (for want of a better term) technique is open to debate. The citation of "dignity" might make it the best for this day and age. FWIW.]

I know of not one case where a violation of dignity alone was deemed a cruel and unusual punishment, particularly if it replaced a painful alternative. There is some argument that shaming punishments, like needing to say you had sex with a prostitute or did some minor crime, could be cruel and unusual on dignity grounds. This is a pretty different context as compared to replacing a shaming punishment with a fine or short jail sentence. Dignity can also be violated in various contexts, like forced nudity or the like. Again, there seems to be a difference of degree here as compared to the indignity of shaking as you die, when the alternative might be being paralyzed and in deep pain.

Now, it would be different if there was no risk. Or, if the second drug aided in the painless death, which was sort of suggested as an additional reason. The state argued that an alternative method might prolong death to up to a half hour, but it was not really suggested that it would be a painful half hour. I guess it might be in some fashion, including wanting to get it over with. (Would the person be conscious? Again, there is the factual hearing problem.) But, and the practice with animals underlines the point (why did state law not allow the second drug for animals? [per the oral argument, at least] basically, and this was rather unsatisfying, because it does), there does appear to be a significant risk. Or, more broadly, some question of one.

Some have argued that the protocols were originally set forth in a haphazard way. I'm open to the argument that they are carried out with some degree of care, but questions still remain, and it seems to me that a careful hearing -- in all branches of government -- is required to ensure the protocols are legitimate. Due process alone requires this. The problems as a whole reflect the problems with the "delusion" of "tinkering with the machinery of death," but society seems to still want to so tinker. Fine. It requires continual tinkering and this case is but the most recent example. Scalia might not like the delay.

[Here is one take, which seems to support lower court review and the need of state correction, if not action at the top. OTOH, in some cases, specific abuses might so warrant. This seems a fair assessment in some ways, especially if we agree that at the very least, lower court review is necessary to safeguard this practice. I find some of the analysis a bit dubious, just to reaffirm I don't agree with all of it.]

Tough. Anyway, glad I was able to listen to the oral arguments. Several other interesting cases raising important issues will occur this term for which this option, at least for the time being (Oyez.com eventually has most cases), will not be available. This is both silly and arbitrary. But, such is the courts often enough, huh?

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* Sen. Specter, though he confuses things by raising federalist cases where the Supremes struck down various federal legislation, sponsored legislation to require the Supremes to make cameras available. Audio alone is even less problematic. Since you can eventually listen on Oyez.com, it is really unclear why more immediate and widespread (on its website and/or C-SPAN) download for more cases is not just plain common sense.

Some raise Article III problems with such proposals, but I think it equally plausible to argue there is constitutional reasons to require it ... comparable to the constitutional requirement of open trials, the importance of the Supreme Court and the fewer practical problems (safety, privacy, etc.) for such an appellate court factoring into the equation. Also, selective audio seems to have its own potential constitutional problems, if only in a symbolic constitutional values sort of way.

[This case raises First, Sixth, Ninth (see FN 15 and surrounding text) and Fourteenth Amendment concerns. Justice Stevens clearly notes: "Today ... the Court unequivocally holds that an arbitrary interference with access to important information is an abridgment of the freedoms of speech and of the press protected by the First Amendment."]

Football: Part I

Seattle was comfortably ahead when the Redskins had one more turnover. Unlike the Eagles, they didn't just take a knee, in effect running up the score. Perhaps, today's snow game beating (started so well for them) was karma. OTOH, even though they too started well, the Jaguars' loss was more of the same. We knew that when the Pats went on 4th and 4 (after the Jags went on 4th and 1) on their first drive, eventually tying things at 7 all. BTW, via the interview before the game, I learnt that the black QB has a white wife. This is not too notable at this point, but it seems not totally unnotable.

Where Is For Better or For Worse?

I saw some hints that the creator of one my favorite comics, For Better or For Worse, was thinking about retiring. Her contract was up soon and she didn't know if she wanted to continue. Recently, there has been many repeats -- sometimes, but not always, akin to flashbacks, with "I remember when" movements supplying the opening. And, then, suddenly there were no strips at all this week in the NY Daily News. Some lame strip replaced it. What gives? I surely don't want them to cancel this excellent strip!

A trip to the website ... as with Pearls to Swine, Doonesbury and Get Fuzzy, one need not buy the paper to get a daily fix ... clarified matters somewhat. Lynn Johnston has decided to take a "hybrid" approach, which is mostly a fancy way of saying she wants to work part time. The strip is about to enter it's third decade, so hey, she has every right (even without a few health issues) to do that. The article also notes that she has decided to have particular focus on the son Mike (married, two kids, writer) and to "freeze" things so people don't age etc. Neat trick, if you can do it!

Overall, though, the strip will be much the same as now ... just fewer episodes. When Lynn Johnson's friend "Sparky" (Charles Schultz) died, the NY Daily News ran "classic" strips for awhile. This was fine -- I have read the strip for years, including many collections, but there are so many strips -- consider the relatively new Pearls to Swine, which already has bred several collections. BTW, Stephan Pastis -- the author of PTS is big fan of Schultz, and a highlight of SP's life was when he got to meet him. See, e.g., the introduction to Zeeba Zeeba Eata. Love that strip.

And, since I did not read the FBFW strips when they first came out, the "hybrid" approach is fine too. Others, including younger viewers, will have read less of them. As to those papers that carry the strip, enough readers should be fans to make it worthwhile to carry the strip, even in this new format. How much would one strip cost anyway? Besides, what will it be replaced with? Even a part-time strip of this special caliber, a true to life strip mixing teen and adult material (including the elderly, the ailing grandfather character and his loving wife) that still is funny is a rare breed. Few must reads left, this is one of them.

If the NY Daily News decides to permanently strip the comic pages of this gem, they will have made a mistake.

Election Thoughts

First off, a bit more on the voting id case. Whalen v. Roe focused somewhat on the claim that the drug registration law was not shown to be necessary. It noted in part: "The absence of detected violations does not, of course, demonstrate that a statute has no significant deterrent effect." Will the majority in the voter id case cite this ruling, which also has some nice things to say about privacy rights, ala Reynolds v. Sims in Bush v. Gore? Good thing that is but one aspect of the problem ... that alone might not be a constitutional strike against the law. Overall, even some chance of benefit is not enough when a fundamental right is at stake. Some commentary notwithstanding.*

John McCain might be beloved by the press. The phony "maverick" that does basically nothing substantive to deal with President Bush, who even run of the mill Republicans admit leave something to be desired. Other than some hearings on Jack Abramoff, what exactly did St. John do? I caught a clip of him after Iowa saying negative campaigning (likely reference to Romney, who btw is not doing as bad as some say he is) doesn't work. You mean like against you in 200 or Kerry the last time around? I also heard a clip of him on the radio on how fiscally responsible Reagan was ... which again is b.s. Experienced, sure. In b.s.

But, as the "unity" run for Bloomberg -- isn't going beyond partisanship the whole point of the Obama race (Juan Gonzalez of Democracy Now! worries about his strategy along with his use of corporate money, but apparently he doesn't go far enough for some people, or they simply don't trust him) -- image is often more important than substance. I can, for instance, link to St. Greenwald again to show how Bloomberg supported the Republicans (he after all won as one) and the Iraq War the last few years. Likewise, the last few elections showed how connecting with voters and personality (fake or otherwise) was key. Not there, sorry.

Dennis Kucinich, who got about two percent of the vote in New Hampshire, wants a recount. Going for three, are we? No, his campaign is concerned about reports of irregularities, so it is akin to like when a third party candidate (Kerry, whose endorsement I'm not sure does Obama any favors, deciding to concede right away ... Ned Lamont btw also endorsed O., you know, the Lieberman supporter) who did so in Ohio last time around. BTW, that was inconclusive, since it was later found that election workers cheated to ease the process along to prevent the need to do too much work. This article supports the move, though (like me) doesn't think either Ohio or NH was stolen.

John Marshall continues the meme of HC's "surprise" win in New Hampshire, which as with the constant talk of a HC v. BO (that's unfortunate) race [hmm, I recall at least one other person], seems to me to have some effect. I admit that it is unclear what sort of effect such "conventional wisdom" brings, but there is some value in opening up the possibility of something. The possibility does not mean that it will happen, but the opening is necessary for there to be a decent shot. So, the idea -- with resulting financing, endorsements and influence on voters who might be tempted to go elsewhere -- that HC suddenly had a "surge," even if she was the probable (in a close race) winner all along matters.

BTW, the fact Obama had a shot at winning (the race was close) doesn't change that. It does underline that two key races don't make a primary season, or Bill Clinton wouldn't have been President. Ditto thoughts that a surge of support for a few days will end matters. In a close race with no candidate a slam dunk, it is unsurprising if there are ebbs and flows, one candidate working hard (helped by events that can be overblown, like HC being "emotional") to alter moves in another direction. It is not "surprising" that a populist evangelistic friendly candidate did well in Iowa. Or, that McCain won NH, or the more conservative leading senator of a NE state (who the Weekly Standard earlier on figured the best of a bad situation) won there.

The need for simple story lines aside. Finally, ala Media Matters etc., I agree Chris Matthews is anti-Hillary in a "you need help dude" way, but is he that special that we should be too worried? Seems he is an extreme example of a wider trend, a trend worthy of concern, but I personally often am not as viscerally affected as much as those like Atrios ("Tweety" etc.) who watch these people on a more regular basis, such as Rachel "I don't own one, but love being on it all the time" Maddow.

BTW, the repeats of Coupling on BBC America this week were great. About half of the episodes are pretty good, a quarter often simply hilarious.

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* As usual, the discussions can get tedious. One specter is dead people voting -- I saw a serious lawyer type bring that one up. As one person noted, when this was used by machines (the old political type) to up the vote totals, it was not a voter fraud issue. Dead people voting was illegal then too; the authorities were not too deterred. Anyway, this is a registration issue. There are ways to update rolls without such a problematic means. And, audits of the results -- useful for various reasons -- can also "catch" the problem, if not the wrongdoers in various instances.

Is cost/benefit ratio that hard of a concept to understand?

Religion Quickie

Atheism: A Very Short Introduction by Julian Baggin is a pocket sized volume that covers a lot of the bases while dealing with basic questions like the quality of evidence, purpose in life and openness to error that gives it a catholic (sic) feel. Marci Hamilton, a strict separationist conservative, asks some questions of presidential candidates. Edwards and Obama come off pretty well. Ellery's Protest by Stephen D. Solomon is a good book on the bible reading ruling, also reminding the negative consequences of religion bigotry.

Voting ID Case: 1/2 of 1% chance of benefit

And Also: Weldon/BTC News has some good analysis of Obama as does Jack in the comments there. One hopes this thing, ala Jack, will go for awhile, but it is not just the MSM talking heads who insist it will not. If not, I will be annoyed ... this "well, you have two choices" b.s. is annoying, especially since ala WB, I am not THAT excited about the choices.

[This is a reply to Dahlia Lithwick's article on the oral arguments of the voting i.d. case that was heard yesterday. It has various useful links to other background articles.

Another good article can be found at The Nation, including the uncovered potentially greater problem of absentee voting, how the measures don't deal with those registered wrong at any rate (you have the id, even if you shouldn't vote anyway), how the particular law is particularly broad vis-a-vis others, etc.]

First, the lethal injection orals will be available to listen to on C-SPAN; check its website.

Linda Greenhouse's article on the oral argument had some telling details, in particular, highlighting the partisan elephant that (many of) the justices want to keep out of the room:

The Bush administration has raised Democrats’ suspicions by making “voter fraud” a priority for Justice Department enforcement. No prosecution for impersonating a registered voter, the type of fraud that would be prevented by a photo requirement, has ever been brought, however. “No one has been punished for this kind of fraud in living memory in this country,” Paul M. Smith, arguing for the Democrats, told the justices.

As the link to Talking Points Memo in Dahlia's article and the piece by Walter Dellinger and Sri Srinivasan in Slate noted, the "problem" here is hard to find. But, and this affected the not unconnected partisan firings of attorney generals, it is one the Bush Justice Department thought an important matter. Important enough in fact to get involved in this lawsuit, which seems not really their concern -- it is after all a state law, one comparable to one already struck down in Georgia.

The whole point of the facial challenge is to go out of your way to protect certain fundamental rights that are so important that holding them into abeyence since only some people are hurt by their violation is to much of a risk. This includes the 1/2 of 1% Justice Scalia sneered at,* which would amount of thousands of voters. If the "state interest" is so weak, the risk is that much more not worthy to take.

This includes adding to the cynicism of the people that those of another party simply do not play fair. This poisons the system in ways the go much further than burdening those without the appropriate picture ids. This makes Judge Posner's statement wrong:

In his opinion last year upholding the Indiana law, Judge Richard A. Posner of the United States Court of Appeals for the Seventh Circuit agreed with the Democratic plaintiffs that the law would fall more heavily on Democrats than on Republicans. But that did not make the statute unconstitutional, he said.

It very well might, if your right to vote might be hindered (see Dellinger article; do we need to do more to discourage voting?) more depending on your party. This threatens freedom of association, while also affecting "indigent, elderly, and minority" (Dahlia's words) disproportionately. This raises 14th (liberty/equality), 15th (racial discrimination in voting) and 24th (poll tax) amendment concerns. BTW, I don't care how "brilliant" Paul Clement is ... if he furthers this sort of this, he is not worthy of my respect.

BTW, Dahlia spoke about how both sides had to "invent data," including when noting the side (shockingly, Democrats) against the law. But, he noted it was an estimate, and these figures are not simply invented. Again, see the Dellinger article:

In Georgia, which has a requirement similar to Indiana's, roughly 200,000 people who have no government-issued photo ID have registered to vote, and more than 60 percent of them voted in the last general election before a photo-ID requirement was imposed.

But, as with non-existent voter fraud problems, if you don't want to believe this, you can always ignore the evidence. Steven Colbert has reminded us of that fact. Various fray comments underline the point, eliding past absence of evidence since CJ Roberts-like it just must be out there. Sorta like WMDs or creation science. See also, Dellinger (contra CJ Roberts) on how much of a pain it would be to travel to show id to have the provisional ballots count. Justice Breyer argued:

Breyer’s notion was that the state could simply offer to give a photo ID to a voter who did not have one and could not afford to get one. “It is no big deal — just take a picture of them [when they register] and hand it to them. That would satisfy your anti-fraud concern, in a less restrictive way.”

Well, this doesn't help if you register by mail, does it? But, it does suggest that if you seriously burden (or there is a serious risk of it) the right to vote, especially when there is a serious risk of partisan sheenigans, the state should have the burden here. [Some point to the need to show id to enter governmental buildings. This law in particular arguably can be a problem there too and voting in particular is protected by the Constitution, even if the right to vote as such is harder to defend across the board.]

Id so important? Have state officials travel to those registered voters who don't have them ... many of whom very well might have to see government officials for other reasons. Now, some might argue there shouldn't be a need for id anyway. But, this is a more valid way to do it. Likewise, perhaps, require voters to have various types of non-picture id via a point system. Again, some might not like this either, but addresses "problem" in a potentially safer way.

BTW, election expert Rick Hasen makes a good neutral point that "as applied" challenges can be much more messy and divisive, making courts more intrusive around election time as well. There is, ala Ginsburg, a "horse out of the barn" problem too, of course.

Bottom line, there is enough evidence that the photo id regime will discriminate and threaten the fundamental right to vote, do so for partisan ends, and without much evidence apparent the risk and cynicism it will bring is worth it. Even a small amount of cost simply is not worth it.

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* “Why are we arguing about whether there is one-half of one percent of the electorate who may be adversely affected and as to whom it might be unconstitutional?”

Election Tidbits

Query. Does underreporting certain candidates effect the results by making voters consider them not viable or whatnot, or enough to matter? After all, a mere five percent swing in Iowa would have changed the meme on who "won big" there. The story today was that HC was emotional. Big news apparently that she is not a robot. The fact it was somewhat absurd that so much was made of one moment was not even mentioned during Rachel Maddow's coverage of the event. She has been absorbed by the Borg. BTW, McCain mentioned that negative campaigning never works. You know, like in 2004 against him. Ha ha. His win in NH that year is also useful to recall.

Wild Card Weekend

The forgotten man: Edwards. Anyway, football. After a slow start, the Giants finally beat a QB who beat them in the playoffs while on two different teams. Third team's the charm. The Steelers lost because they didn't go for 1. The Titans couldn't score. And, after ten years, the Redskins back-up gave up an interception, and Seattle clinched the deal. Might be at least one upset next week ... will the third time be the charm vs. the Eagles? NY has a shot.

Can a state execute for child rape alone?

[The NYT article on this issue (the AP piece linked by Talking Points Memo leaves out a few important details) is entitled "Justices to Decide if Rape of a Child Merits Death." This sounds like a value judgment, while what they really are deciding if a state could execute, not if it "merits" it.]

The Supreme Court has just accepted for review a special sort of capital case: is it constitutional to execute for raping a child without an accompanying death? This adds to the "OJ" reference case (also out of LA) and the upcoming examination of lethal injection protocols (Kentucky but an issue nation-wide of late).

In 1977, the Supreme Court held that execution was not a legitimate punishment for rape, Coker v. Georgia.* The opinion, though involving a sixteen year old (married) woman, did speak of "adult" women at some points. But, it clearly noted "the death sentence is a disproportionate punishment for rape" and "we have the abiding conviction that the death penalty, which is unique in its severity and irrevocability, is an excessive penalty for the rapist who, as such, does not take human life.”

The crime here was particularly heinous, Justice Powell's somewhat curious concurrence aside, but the ruling rested on a clear principle. The rape also involved a white man raping a white woman (see also the link), but racial history did affect the ruling -- over the years, the penalty was very disproportionately applied to black males. It was not just a neutral concern for women's purity and its ultimate violation.

On precedent, the lower court here is on dubious ground, even if child rape was not directly addressed in the case. There are other difficulties. There are two people -- both in LA -- on death row because of rape of a child. The law involved is different from a few other states that recently allowed the death sentence for child rape in that a second offense is not required.

Likewise, the particular defendant here has a serious claim of reasonable doubt. To degree some "residual doubt" is particularly problematic in death penalty cases, relying on testimony of young children is problematic. Those who don't have much sympathy might be more concerned that:

Another brief, from social workers and organizations working with sexual assault victims, describes the Louisiana law, with its broad definition of rape and its drastic penalty, as counterproductive and likely to lead to under reporting of offenses, especially within families.

The narrow question involved here limits the likely breadth of the ruling (it is telling, after all, there are all of two people on death row because of rape alone, and the law in question is particularly objectable even as these things go), but such a basic examination of a categorical challenge to the death penalty remains important. It also will help understand the views of the two newer justices.

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* The ruling also made a reference to the relevance of international practice that underlines that this was not just something that popped up in the last few years:

In [1958 case] the the plurality took pains to note the climate of international opinion concerning the acceptability of a particular punishment. It is thus not irrelevant here that, out of 60 major nations in the world surveyed in 1965, only 3 retained the death penalty for rape where death did not ensue.

Other citations to international practice can be listed from over the years as well. Right or wrong, it was a perfectly well accepted -- including by conservative leaning sorts like Justice White here -- practice for some time.

Juno

I finally actually watched Juno, which is a good movie overall. Well acted, though Ellen Page's character (like many teens) is a bit hard to take. Good acting and writing overall, good supporting cast. As to the abortion clinic, when she chose the adoption route and went to ob/gyn check-ups, she did not go alone, but with friends and loved ones. Sorta important too. Not revolutionary, but worthwhile fare, with a good soundtrack and "look" (including the credits). Interesting audience commment: "this film would encourage a teen to get pregnant!" Also, here's a pregnant teen flick that is worth renting.

Quickies

Leno might get in trouble, but where is the line? Conan's "time killers" are planned, right? He also "writes" things, they just are much less complex. BTW, how will Colbert and Stewart handle their writing heavy shows, if required to come back without them?! And, Mark Kleiman (good stuff on Huckabee generally) might be right, but TPM has a point -- weird reference. Good stuff on Obama also. He's sort of my "superego" to Edwards "id" ... I also think we can expect more than Clinton's flawed "ego."

Blogger Casualty

I don't know if there is an afterlife; I tend to doubt it, to be perfectly honest. But if there is any way possible, Amanda, then I will live up to Delenn's words, somehow, some way. I love you.

Apparently, there are agnostics in foxholes. I heard reference of a few more (American) dead in Iraq on Rachel Maddow, and apparently one of them at times blogged over at Obsidian Wings, a superior group blog. I am impressed with his "last post" (written for the occasion), including those cultural references. Those (unlike I) who knew him more probably smiled through their tears at some points ... that's the best way, I think.

Obama Up, Edwards Out?

Here's a pro-Obama article, referencing his state legislative accomplishments, which ends on a fair note, underlining lack of coverage on the legislative records on all three of the top candidates. It is relevant, but it should be noted that these people aren't running for "legislative" office. Thus, their proposals should be taken with a grain of salt -- they aren't running to be the head of parliamentarian governments, are they? BTW, here's one of those "one state, Edwards should go" types that annoy me. And, a pro-Edwards post as balance.

Juno and Roe

[Update: In reply to my comment, the author of the first link noted Juno -- like a good satire -- targeted all comers, so to speak. This is a fair comment, but sometimes neutrality doesn't quite work in a unbalanced universe. This is not always "fair," but so it goes. Consider this post on a HPV article, which on some level is fair, but might not be if you look at it from a different angle.]

Atrios liked Juno (not Knocked-Up), noted my complaint (not me personally, *sniff*) that no one in film and television actually decides (like millions of actual women) to have an abortion, though the ones in these films are treated as free agents unlike the dreams of various sorts. I'd add that this only goes so far -- if abortion is not actually the choice made at any point, the anti-choice meme is furthered all the same. [Pregnancy and adoption is necessary to the plot, but it's notable that one of the rare references to an abortion clinic is negative.] It's like black voting after 1870 -- they technically had the right to do so in all states, which was nice and all, but practice was somewhat different.

Publius at Obsidian Wings also discusses the movie, and his comments are of some value in learning the "tad too precious by half" category of reasoning ... that at times turns me off from his writing. He is one of those New Republic sorts that thinks abortion should be legal, but Roe was wrongly decided. Thus, basic freedom does not include (though it's good policy) preventing the state from controlling the child-rearing choices of women -- even though, one of the evils of slavery was just such a violation of privacy and personal autonomy. It also is not a severe -- in intent and application -- equal protection violation, nor a selective endorsement of a certain moral decision with religious overtones.

[Or, yeah, they touch upon the latter issues, but apparently not enough to be of constitutional moment. This tends to confuse me -- when you actually look at the reasons given to keep abortion legal (other than relying on Roe, if not its broader principles ala Lawrence* on precedent grounds), they tend to sound like constitutional reasons. It's necessary for equality to women. etc. If nothing else, they should enough like constitutional reasons to make criticism of Roe a bit lame.]

Sebastian, in comments, notes that the connection between Griswold and Roe is mostly fictional. Griswold was mostly about the privacies of marriage, but suddenly, that is forgotten in a few years. Not quite. Griswold dealt with an as applied challenge to a broader law that was particularly troubling when involving married couples. Nonetheless, the general principles of the ruling was not limited to married couples as such. The case as a whole recognized a right of privacy, not a right of marital privacy alone. Also, abortion inherently deals with marital issues -- generally speaking, you are deciding whether or not you want to have a family. It thus fits in past rulings, including Griswold, that dealt with the general issue. Privacy law was expanded, but the logic here is not simply ad hoc either.

[See more, here. The post argues that Juno is not intended to be some sort of brief on the abortion question. This does not mean, necessarily, it does not have some sort of effect on it. See criticism of the movie qua movie here.]

Anyway, some Publius comments that warrant comment:

The fundamental problem is that the Roe debate is only tangentially related to abortion. Instead, it’s about penalties. More precisely, it’s about whether (and what) penalties are appropriate for having an abortion. For this reason, the linguistic labels of the various camps – pro-life and pro-choice – don’t reflect the essence of the political debate very accurately. One can, for instance, oppose abortion personally, while simultaneously opposing efforts to ban or criminalize it. The Roe debate then, stripped to its essence, is about allocation of power. Does the individual get the final say? Or does the state?

Actually, "penalties" is not the only "essence" of the debate. As with penalties in the war on some drugs, advocates upset at the status quo are concerned with penalties, but their passions are often much deeper. Many women (and men) are quite passionate at what they see as a war on their autonomy and women's autonomy in particular. Focusing on penalties, which is true up to a point, has a somewhat dry flavor to it, missing some of the deep passion involved. Passion that colors both sides, evidenced by statements like this:

My “pro-life” friends have often asked why Roe supporters appear so inflexible. Why, they ask, won’t people at least admit that abortion is a tough issue. One reason is that some people simply don’t think it’s a tough question – they disagree with the premise that the embryo is “life” in a morally or legally relevant sense. But I suspect most Roe supporters privately concede that abortion is a tough question (that camp includes me).

Roe involves having the legal right to make a decision. Decisions often can be tough. For instance, the choice of whom to marry is a fundamental right, which cannot be infringed without a very good reason. This does not mean people think marriage choices are not "tough issues" in various instance. Just how many in the pro-legalization camp really think abortion is always such a simple issue? Repeatedly, the public comments speak of the complexity, but underlines that it is a private choice. Publius is right that the threat of criminal sanction concerns some (bad=illegal), but he needs more than "suspect" pro-choice people generally think abortion overall is a tough issue in various respects.

People like their freedom. Rather than fearing it and attempting to eliminate it, maybe the pro-life camp should try embracing it for a change.

The pro-life camp thinks that embryos and fetuses are human persons warranting protection, abortion (for some, even acts most don't think of as "abortion," involving the morning after pill) is murder, and (many) certain types of sexual freedom (top Democratic candidates don't think same sex marriage is a good idea) is immoral and overall dangerous to social goodwill overall. So, nah, don't think they are ready to "embrace" murder quite yet, even if a fictional teenager -- given the option in a plot where her pregnancy is required -- chooses adoption in a pro-Roe world.

The comment comes off as a wee naive. But, this is the sort of "moderate" noises (to be a bit unfair) that come out on some issues these days. More evidence the quotes are often enough well placed.

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* He thinks the language in Lawrence is too open-ended, but suggests he might support it on equal protection grounds. [ala O'Connor, perhaps?] But, as the ruling itself says, due process and equality issues tend to be connected. Some comments in the threads of the posts referenced like the Ninth Amendment. Not only did both Griswold (separate opinion) and Casey (the plurality) directly highlight that measure, both followed its principles based on due process precedent harkening back to the 1800s. This is how law works.

A comment also referenced the fact so few were legally targeted by the statute in question. Arbitrary enforcement is not a net positive in defense of the law; also, like the contraceptive law in Connecticut targeted by Griswold (as the dissenters in Poe noted), such measures have many indirect effects. Again, a look at the Lawrence opinion would underline that fact. Ditto.

Quickies

Dave's back and he has a beard ... actually, he looks pretty good (less so Conan). Apparently, it's a sympathy beard for the writers on strike. Kucinich and Richardson told their supporters that Obama was their choice if they could not get the required quorum in Iowa. This helps explain Obama's margin. Past history notwithstanding, apparently we will have a Obama v. Huckabee general. Hey, let's skip the rest of the races, okay? No need for them now! Chris Matthews is a nut btw.

What is At Stake

And Also: P.S. that apartment was not small. Also, on the "very short introduction" front. Nice picture of Dahlia Lithwick. And, more on the get average music listeners since they are evil front.

Happy New Year! Welcome to Election Season! As the caucus/primary season begins, it might be useful to get a taste of what is at stake. First, as part of Talking Point Memo's end of the year lowlights awards, John Dean had this to say:

Best Scandal – General Interest

President George W. Bush – While the nomination is for his “general politicization” of the federal government, one must read the subtext of that term. Bush’s politics have done for good government what war does for peace, what famine does for hunger, what Alzheimer’s does for memory, what Lee Harvey Oswald did for Dallas – you get the idea. This president has done more to damage our system of government, and weaken us around the world, than any of his predecessors. Bush is America’s worst president ever, only equaled by the abetting of his partner, Dick Cheney.

The Republican (helped by "centrist" conservative Democrats) candidates with any shot of winning basically want more of the same, even "maverick" sorts scared to seriously and consistently criticize him. The best option to in some small but significant way to help guide us to a new path is thus in the hands -- for better of worse -- of the Democrats. This includes helping us with progressive policies that seemed obvious over sixty years ago, as this Republican loyalist noted in 1942 (from The Lost Promise of Civil Rights by Risa L. Goluboff on how civil rights moved from economic rights to Brown):

We cannot go back to a past which countenanced a widely-exploited labor, a great depressed agriculture, an irresponsible Wall Street; to a past which knew no old-age pensions, no unemployment insurance, no maximum hours and minimum wages.

But, now unions are on the decline, corporate power supreme, Social Security seriously spoken as a failed program that warrants replacement, the promise of health care that Truman thought clear still up in the air and agriculture not in the best of conditions either. It might be a good time for some other pithy two word slogan with "deal" or "society" in the title. Sandy Levinson thinks we need constitutional changes, but Mark Graber (following his entry) notes:

Abortion aside, the leading candidates for the presidency are not proposing any policy strongly opposed by clear popular majorities. The bipartisan movement is about how power may be maintained to the right of the center, but perhaps not as far to the right of center as is presently the case.

One of the central problems with the American polity concerns why conservative Democrats abandon the party so quickly, while more moderate Republicans make little effort to stem the rightward tide of their party until the Republican ship is clearly sinking. If I thought the problem was rooted in some constitutional provision or set of practices, I would join Sandy in a minute. My suspicion (and merely a suspicion) is that the problems lie elsewhere in the political culture, that a constitutional reform movement spearheaded by persons who find Hillary Clinton’s policies intolerably liberal is likely to produce a constitution so structured that in practice Joe Lieberman will be the most liberal alternative to the next scion of the Bush family.

And, if you want change, the best shot is to get a somewhat more progressive leaning candidate in power. I personally think -- putting aside the fact it is not bloody likely to occur -- constitutional change is not necessary to reform the system. "Change" also occurs without formal amendment, did so repeatedly in our history. Two other things. One, no "clear majority" opposes legalized abortion. A clear majority supports it, even if they might be uncomfortable about the whole thing. Two, some in the blog universe think Ron Paul is the way. Recent references underline the problems with the guy, someone who caucuses with Republicans.

But, this goes beyond Bush, or any one candidate. I'm not a big believer in those who think bad things are necessary in that they make us stronger. Or, that this is "why" they occur. I will leave the teleology aside, and just say that it is useful to make the proverbial lemonade from the lemons. The depths we have fallen into should provide some incentive to underline the importance of the alternatives. No candidate, by any means, is a perfect representative of where we should go. But, it's time to chose the best one by the judgment of the voters.

I pledge allegiance ... to the republic for which it stands.

P.S. This Kinda Sucks

Well, P.S. I Love You looks nice -- hey look I know that N.Y.C. locale! -- though when an Irish husband sends his wife on a trip to a green laden land with accent laden types, telling us it is "Ireland" is a bit redundant. And, though she looks a bit too thin, Hilary Swank has presence, while who knew the off kilter singer Nellie McKay would be in the film? The fact that the movie had a few nice moments and was (ala a gift card) free, helped, but even as a chick flick, this left something to be desired. Not too bad, however, if you are dragged to it. Swank looks nice in black underwear btw.

A Human Face Among the Statistics

As the family of Fredia Ann Veitch, 30, reeled with grief, new details emerged about Leyritz's partying with a Playboy model in the hours before the tragedy early Friday.

- NY Daily News story on former Yankee World Series Hero

The word "tragedy" has a specific meaning in literature to stand for an unfortunate occurence by those who do not mean to do harm. Shades of irony and "s/he meant well." The word more generally means some seriously bad thing that happens, including those without any good or bad guys (e.g., harm from a hurricane, even without the maladministration of the likes of Katrina).

The word still seems a bit inapt here -- Leyritz, who once "bragged"* that he hit a home run after a night on the town with the help of some of the substances the Mitchell Report targeted -- apparently drove intoxicated and killed a mother of two young children. This is not really a "tragedy," but a horrible act of stupidity. I keep on seeing PSAs on television against "buzzed" driving ... since the model suggested he was buzzed but not drunk ... maybe new ones should be made showing that picture. No, that would probably be a violation of privacy.

Still, her death provides a warning for this time of year. It also provides a window into the tabloid leaning journalism of papers like the NY Daily News. Better than the New York Post, and having some journalistic qualities (the op-ed pages have gone to the dogs of late, though), it still is sure to have some tabloid material. This includes (and this article was not an exception, which honestly is a bit tacky, though I assume they can say it has some news function to show what he was doing beforehand or something) some excuse at showing sexy pictures of some tart. OTOH, the coverage also put a human face on the victim here.

This served a useful function, and probably deserves to be done more often in a range of things in which a human face will hit home. Aiming at our emotions was always an aim for tabloids, but not without some value. Fredia Ann Veitch is not just a statistic, but a human face no longer with us.**

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* Akin to some remarks in an article about his use of HGH about Andy Pettite's piety, this is from the NY Daily News coverage that can show some bite.

** A striking tidbit from the coverage was that the husband did not at first tell a neighbor how the wife died, since in effect it did not really matter -- she was dead, the rest just details. The details matter, but this greater truth does as well.

Week 17

And Also: Glenn Greenwald today talks about the hopes of "handful of retired, mediocre politicians" to get my mayor, Michael Bloomberg, to think about running an independent run for President. You know, as a rich big daddy savior (shades of Jean Harlow?). And, since he was once a Democrat until it was no longer politically useful, he has the above the party fray thing going for him, though of course as a Republican (see GG's piece) he did help them out the last few years. Anyway, comes to me that when GG yesterday cited candidates whose supporters are upset about the current political situation, he left out Dennis Kucinich. This is not a unique situation, especially since a Paul sympathizer like him should like DK's opposition to Bush et. al.

Week 17 had some interesting action other than the Giants decision to fold in the Fourth Quarter. A few games actually mattered, two wild card spots open, and the AFC third seed technically so (Oakland had to win ... in fact, even if they did, the Steelers still lost -- thus have the indignity of losing both to the Jets and Ravens). The Bears again affected the playoffs, already pushing Green Bay to second seed (Dallas lost today, big, so might have still lost if they played their regulars all the way ... they finished up one game up on GB in the seeding race), knocked the Saints from the playoffs early. The week before, the Eagles -- also playing some role in the playoffs -- beat the Saints as well. So, after starting off 0-4, the Saints ended on a losing note, after an up and down final twelve games.

The Bengals won (the Ravens going for a tie already gave Miami their win, so Miami played normally ... to lose), so ended their disappointing season on a decent 7-9 note. Not good, but much better than one might think from their record early on. Houston also had their best record in their short history -- 8-8 -- with a win. The Jets, playing their former head coach's team, won in OT ... playing Kansas City, who started off credibly ala the Ravens, but who ended with a stream of losses. KC scored late and had one more shot when a penalty pushed back the winning field goal to a somewhat iffy 42 yd, but showed their losing ways again. Jets 4-12, finale 13-10.

Another low scoring game showing questionable offense (also a problem for the 8-8 Eagles, out of the playoffs in large part thanks to the Giants), following a 10-6 loss against the superior Titans. The Titans had another low scoring game, mostly against the Colts back-ups, in part thanks to Vince Young getting hurt (apparently, not too badly) early. Another familiar face, former NY Giants QB Kerry Collins (who led them to their last Super Bowl appearance), came in and helped (a 50+ field goal helped) them get into the playoffs (knocking off the Browns, who won, but lost the key game the week before) in the last game of Week 17. Earlier, the Redskins overwhelmed the Cowboys -- Owens resting, and playing back-ups part of the game -- making the Vikings' loss (even a win wouldn't have gave a team, thought a shoo-in a few weeks ago, the final wild card spot) in OT largely irrelevant.

Of some interest as well, Tampa Bay -- which some seem to think will be a tough one for the Giants -- lost again, in effect leading them to limp to the playoffs. Onward to Wild Card weekend. Oh, cannot forget about the Falcons winning ... I think the defense had the day off, since there was a combined over eighty points as the Jaguars rested (to a degree) for their game next week -- the AFC clearly has a tough bunch, if this is the fifth seed.

More Unrest ... Without the Bloodshed

To add a bit to my comments yesterday, Glenn Greenwald raged against the machine again today, in particular at those who want to use "bipartisanship" to enable the ongoing destruction of the constitutional values some of us hold dear. The anger and unrest, and the words remind me of 2004 when some idiots (too harsh?) kept on saying "hating Bush" (defined as being very upset about all the bad things he and his enablers done) was "childish," shows up in the various campaigns:

The campaigns of Edwards,* Mike Hucakbee and Ron Paul each, in their own ways, signify that there is some intense unrest and deep dissatisfaction with our political establishment, and this has to be quashed by the concealing device known as "bipartisanship." But it is also an attempt to ensure that nothing of any significance is exposed, that none of the lawbreaking and corruption of the last six years -- which they all enabled and cheered on -- sees the light of day.

I have noted by displeasure at his focus on Ron Paul, in particular, a failure to truly supply a complete picture of the man while denying expanded coverage suggests any special support. It was not his finest hour. But, a few times, he did suggest that the Paul phenomenon is expressed in other campaigns, where the candidate didn't give revisionist accounts of the Civil War, wanted a federal amendment to ban abortions, supported DOMA, wants to end Social Security as we known it, and so forth. Not that Huckabee (sic) is particularly ideal either, but McCain (St. Courage) has bowed down to the fundamentalists too, he was just more phony about it. McCain's serious foreign policy credentials suggests experience only takes one so far. One does almost feel sorry for Republican voters. Still they do have the transvestite candidate.

As to the "bipartisanship" (might one call it the "Lieberman" path? or is he the "tri" guy?), the term is like "compromise" -- it need not be a bad word, if the path does not take you into the abyss. One requirement should be that the other side should have to give up something real, the failure to do so warranting refusal to cooperate. Consider the deal that ended the "nuclear option" threat over filibusters of a handful of judicial nominees. What exactly did the Democrats get out of it? Nearly all of the disputed nominees were confirmed, and in some extreme circumstances, the fourteen who signed agreed that there would be a right to filibuster. The circumstances apparently in the judgment of each senator, arguably giving the power to the majority that the whole process was meant to check.

The fact that, like the bullies they are, these people do not want to share is at the heart of the problem. The public wants serious change in Iraq and the election of 2006 was a reflection of the general trend. But, Republicans -- put aside enabling Bush Dogs -- en masse did not want to share. Even a few refused to support honestly wimpy limitations on the President's carte blanche authority to f-up in Iraq. Let's put blame where it is deserved. Thus, call for "bipartisanship" should be targeted at the REPUBLICANS. Those who cry foul at what is going on are on the right path. And, to raise Obama again, let's hope he realize it is not some neutral "system" that is at fault, but certain forces therein. Some don't quite think he gets it enough. Others take their comments with a grain of salt.

As to my Sandy Levinson footnote, Glenn Greenwald and others are so angry because they think "the system" now furthers lawlessness. They think the "Constitution" ... cf. the rights and privileges of Englishmen the colonists thought were being tossed by the wayside while obviously the crown and Parliament disagreed ... is being broken. Their Constitution. A Constitution that opens up a path with the right leadership, choices, opportunities and luck to a different way. A way not like this:

Their chief weapon to protect those privileges is immunity from the rule of law, and most of our political controversies -- over presidential power and state secrets and executive privilege and torture and eavesdropping and these CIA videos -- really share the same root: the effort of the establishment to maintain their immunity from impropriety-exposing legal proceedings and, thus, from political consequences.

Some think this is compelled by the Constitution and how things do/must work. I think not. Not this badly. The Constitution was there in 1998 too. Sure, it led to a stupid impeachment, but like fire, such power is supposed to be able to be used for the good too. Instead, since our fingers were singed, we are eating raw meat now. The means to heat it is there though ... no need to invent something else or settle for maybe leaving some of it in the sun for awhile. Yuck. Makes one want to be a vegeterain.

Still, in this country, elections do not generally include assassinations -- the events after FDR was elected aside -- so there is something to, right?

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* Flashback to 2004 as well: GG references the ridicule of Edwards' self-made wealth via defending those screwed over by corporations. For those who believe in that sort of thing, he was a self-made man -- via work and education, he rose from humble mill town origins with respect for the Lord (and concern for "gay marriage") along the way. Like Mike Huckabee, however, the real deal is not as good as faux representations.

** See also some comments here, including some by Dilan Esper, who also explains why he labels HC as a right wing conservative:

Hillary:

1. Has supported EVERY single war proposed in her adult lifetime, including the murder of 3,800 brave American service members in Iraq and war with Iran.

2. Opposes a single payer national health care scheme and wants to force poor people to buy coverage rather than provide something that should be a right to all citizens.

3. Supported throwing millions of poor women off welfare.

4. Attacked an intern making a truthful claim that her superior exploited her at the office as a "stalker" and a tool of a "vast right wing conspiracy".

5. Supports the Bush policy of refusing to talk to world leaders and demonizing anyone who challenges US hegemony.

6. Wants to continue the Iraq War forever in the form of a residual force fighting "terrorists", i.e., those Iraqi populations who oppose the American occupation.

I'd say that makes her a hard right conservative.

But, hey, if you oppose her too strongly, you are helping the conservatives win! BTW, #4 is mostly right -- there was a "conspiracy," even if Monica Lewinsky did not deserve to be victimized to fight it. I'd add this whole deal about her being a bad catch because she is fat or something is also a very crude shot.

Ironically, another person I enjoy online -- a true blue liberal -- has written that HC should be supported, in part as a symbol to his daughter on what can be possible. But, hatred by the people you hate is akin to the whole "enemy of my enemy" deal.

Giants Fail and Obama Concerns

And Also: The Giants played to win ... for three quarters. Then, they let the Pats walk all over them, and then took for-ev-er to score to make it a three point game. And, a miracle onside kick recovery rather unlikely even in a regular game, hand the game at the end too. I'm not satisfied. No "moral victory" for me. A bloody field goal would have meant something. But, they only scored (after going up 28-16) again way too late. 38-35 to me is rather worse than a less close game, especially since you tasted it late enough to matter. And, if you don't play it all the way, don't tease your fans.

It's about here ... next Thursday, the Iowa caucus is upon us. This is followed by New Hampshire and a slew of other races, including New York in February, in rapid succession. The focus in the media still seems mostly to be H v. O on the Democratic side, even though the race in Iowa is very close. And, there is some concern about Obama from progressives, the sorts who do not think HC is the best option. Atrios summarized things thusly:

Shorter Candidates

Obama: The system sucks, but I’m so awesome that it’ll melt away before me.

Edwards: The system sucks, and we’re gonna have to fight like hell to destroy it.

Clinton: The system sucks, and I know how to work within it more than anyone.

This is my knee-jerk feeling as well. I'm open to have it tempered, but it is not just an empty fear either. I have referenced the Krugman take that Obama is not aware that you cannot just go above the fray ... you have to choose a side, since there are sides. There is a wrong group, and thinking you can be above the fray and to appeal to "one America" ala his speech in the Democratic Convention in 2004 is somewhat naive. See also, a recent column by Joe Conason, which was referenced here not too long ago as well. JC surely favors Clinton over Edwards, but he in effect raised similar concerns from a slightly different angle. [See his second from last Salon piece; his most recent raises another red flag.] These are people who's judgment I trust, and they are not alone.

To be honest, it is not like I think Edwards is the IDEAL candidate, particularly because I still am not sure if he has the experience and gravitas for the job. But, we take what is given, and since all the Republican choices are no gos, you go with the likely Democratic options. Dodd's latest move against telecommunication immunity is great, and he's above Clinton surely in my book, but you also have to look at the fact he is definitely a longshot. At best. And, if Obama is going to weenie, see also the fact he wasn't there to help Dodd -- not the first time he didn't use the bully pulpit of the Senate for good -- I question it. Ditto, remember calls for "electability" in 2004? -- many suggest Edwards is the one they favor in the general. And, to be blunt, I'm mad, and want someone who acts like he is too.

And, look here -- in a Krugman approved blog entry -- to get an idea of what "system"* is involved and what "party" must be fought. [Interesting piece on the "Powell Memo" cited as well.] The entry is particularly useful in that it provides a long view, reminding us that we are not just up against one group of dubious characters, but a group that took advantage of a long term strategy. [Such "why" analysis is a major value of blogs, especially to get an overall feel of such issues.] One that better helps explain why they were able to seize the day when the opportunity opened in front of them. I often do not look at the long haul and big picture in such a fashion, but there is surely enough truth to the account supplied.

More evidence why the Democrats have to take the opportunity here -- various things leaning their way (including retirements) and some openness (and desire) for a different way, and not choke. Or settle. Well, the true beginning of the road to November will begin momentarily. Let's see.

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* Sandy Levinson: "Like John Edwards, [David Broder] is willing to say that 'our system is broken' without ever recognizing that relationship between our system and our Constitution."

I doubt Edwards, especially given his service as a senator, is unaware that the Constitution affects how things are done in D.C. It still does not quite explain why this last president was so much worse than most others. Edwards also is probably aware that pushing for constitutional change is a bit of a non-starter. If anything, the first step would be to convince the current system is so broken that it needs change. You do not really skip the first step, pushing for change before a need for it is accepted.

And, citing the veto power does not convince. Our Constitution provides Congress (and others) a means to restrain the President, if they have the wherewithal to use them. The Constitution alone is not at fault for the failure to do so. Check out the blog piece. Is the problem the "Constitution," or a "certain system" that was allowed to be bred under its terms? And, trusting the people to demand better leaders who do a better job at promoting the ends of the Preamble has been done before.

Or, does SL want him to promote his little pipe dream of a people's convention as if this was 1787?

Out of Range (Gun Book)

And Also: The Ravens' choke makes tonight's game more important than it could be (the Giant's win total, less so for them), but why must it be on both CBS and NBC? It already is on a local channel, which occurs when a pay station has the game (here the more obscure NFL Network), and probably some with a satellite could point their dish to get it in various cases too. So, the need for network simulcasting is somewhat questionable as is ... so why TWO stations? Anyway, one NY Daily News sports writer thinks an upset is possible ... everyone else, including the advice columnists, think not.

Charlie Wilson's War underlines the fact that those who wish to keep informed sometimes are overwhelmed by the number of longish books out there, all competing with your limited reading time that also needs to take into consideration other works such as T is for Trespass ... Sue Grafton's latest in her alphabet mystery series (which I have read since the mid-1980s). Blogs and articles do provide a way to keep track of things, and for the eclectic reader, that does provide a necessary resource. Book reviews also provide a useful summary -- some more informative ones (e.g., NYT, various news magazines) even have theme reviews that supply an overview of a few with a similar theme.

Still, there are various short to medium sized books out there for the general reader and those who want a bit more, that provide a good resource to keep informed. For instance, the "opposing viewpoints" series was a favorite when I was in school, including the amusing political cartoons found therein, providing quick essays on both sides of a diverse number of issues of the day. They still are quite useful and easily found at your local library. There are also series on the American presidents (written by a diverse group, not just historians), various landmark Supreme Court cases (e.g., Griswold v. Connecticut and Marbury v. Madison) and extended essays by the likes of Bill Moyers and Gary Hart on topics of current importance.

Out of Range: Why the Constitution Can't End the Battle Over Guns by Mark V. Tushnet is part of the general trend, itself part of the "inalienable rights" series that also includes thus far a book on the Constitution in the time of national emergency and one on racial justice. This thin (135 pages) but informative volume tackles the Second Amendment at a timely moment -- it would not be a bad idea for those interested in the upcoming Supreme Court argument on the D.C. regulation (the lower court ruling referenced in the book) to read Tushnet's account. It is a quick read, and though its length does not make it totally well-rounded, the book does provide a fair account of both sides of the debate.

I do think the book left a few things out, and size alone does not really justify that. It is somewhat debatable, I guess, if it's okay to not toss in James Madison's reference to an armed citizenry in the Federalist Papers, or an early 19th Century constitutional commentator (not Joseph Story) often cited for referencing the same point in promotion of the individual rights view. Thomas Jefferson also has an important cite to the "well disciplined militia" in his first inaugural address. Other examples can be suggested. It seems less so to not even mention the Brady ruling (Printz v. U.S.) and only supply a drive-by cite of the guns near schools case (Lopez), surely since Justice Thomas cites the Second Amendment in the former case. And, guns are not just about the Second Amendment.*

Tushnet argues that an originalist view leans toward, though not totally conclusively, an individual rights view. However, other techniques arguably lean the other way ... probably a bit less conclusively. Since even an originalist view (along with state constitutions with clear individual rights provisions, at least per common interpretations by their courts) leaves one open to some sort of regulation, Tushnet's conclusion is that there is no clear solution by an appeal to the Constitution. Not that many on both sides would agree, thinking their appeals downright conclusive. He also is rather dubious on the benefits of regulations as a whole, though accepts that small steps might be useful.

Tushnet argues that it boils down to a type of culture war, which is probably true on a diverse number of constitutional issues. He also notes that to the degree an originalist view helps the individual rights side (again, only up to a point, and not conclusively), it should be realized that pure originalist is simply not how we usually do things anyway. Tushnet cites Justice Breyer's book on Active Liberty:

They read the text’s language along with related language in other parts of the document. They take account of its history, including history that shows what the language likely meant to those who wrote it. They look to tradition indicating how the relevant language was, and is, used in the law. They examine precedents interpreting the phrase, holding or suggesting what the phrase means and how it has been applied. They try to understand the phrase’s purposes or (in respect to many constitutional phrases) the values that it embodies, and they consider the likely consequences of the interpretive alternatives, valued in terms of the phrase’s purposes.

In fact, it seems to me that an "originalist" (as in what the Framers etc. originally figured would be done ... I realize the term can be defined in various ways) interpretation would follow a comparable line. Those who wrote, voted for/ratified, and so forth the Constitution were familiar as to how law and constitutions worked. When deciding what a constitutional provision meant, they did not just try to study the understanding of the people at the time of its creation. And, when they did, "understanding" was often a broad thing, the particulars often debated without agreement on many things.

Likewise, the test of time and precedent also mattered. It simply was not a matter of "original understanding," may the heavens fall. As an account of James Madison's acceptance of the Second Bank of the U.S., after opposing the first on constitutional grounds, notes:

As President, Madison signed the Second Bank Bill into law even though as a representative in the First Congress he opposed the bill because he believed Congress had no constitutional right to establish a national bank. But although he had voted against the First Bank Bill, by the time he was required to sign the Second Bank Bill as President of the United States, he recognized that "Congress, the President, the Supreme Court, and (most importantly, by failing to use their amending power) the American people had for two decades accepted the existence and made use of the services of the First Bank," and he viewed this widespread acceptance as "a construction put on the Constitution by the nation, which, having made it, had the supreme right to declare its meaning."

Madison also had a comment as to how the meaning of statutes would only develop over their use and interpretation as well that Breyer would probably like. Anyway, I think such a path would benefit the individual rights view in some degree. The people as whole accept that view, if with limits and "reasonable" regulations. Top Democratic presidential candidates in 2004 supported that view and a "living Constitution" ruling would reasonably strike down the D.C. statute at least in part, or at least interpret it in such a way to recognize some individual right to own a firearm for self-defense.

As Tushnet notes, the D.C. law is a fairly extreme outlier anyway, and a pragmatic mild ruling is left open by the Constitution as well. Maybe, it would be a good idea if some of the justices -- let's say Kennedy, Souter and Breyer -- read the book too!

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* Tushnet briefly suggests the Ninth Amendment might protect a right to self defense, but since a good argument can be made that the Second Amendment is primarily (if not solely) concerned with a particular use of weapons, this matter warrants a bit more discussion. As Saul Cornell, cited by Tushnet at various points, notes the militia and the common law right of self-defense in fact developed on different tracks. In fact, the Supreme Court's wording of the question posed for the D.C. case suggests self-defense is not a matter of the state-regulated militia as such.

In fact, there might be some confusion as to the Fourteenth Amendment as well, the "state's rights" component of the Second Amendment of particular concern here. Tushnet does cover this a bit, but it is quite logical to argue that the Second Amendment guards against federal tyranny by allowing states a check via their own militia. States, not a free-standing body (the Shay's Rebellion suggested the problems with them), would "regulate" such groups. Shades of the Virginia and Kentucky Resolutions, this provides a check in cases of federal tyranny. And, "the people" suggests all groups would serve this civic republican function. Thus, individual ownership, but some regulation is legitimate.

State constitutional provisions that might be more individual rights minded arguably dealt with somewhat different concerns. OTOH, even there, the "militia" can be a state regulated group in which the people at large -- not armies -- provide domestic security. The Fourteenth Amendment (are you listening, Ron Paul?) is more individual rights focused with the Equal Protection Clause an added wrinkle (disfavored groups might benefit from being armed or having the right to join militia). It is only via incorporation that the Second Amendment would be applied to state laws in this area.

Focusing on the "Second Amendment," thus can confuse things.