Go for it Ginni!

And Also: Talking about the Supreme Court, see here about a case where technicalities can lead someone to miss the forest for a single tree, a concern that listening to the oral argument only reaffirmed. [Update: See this blog post as well.]

The NYT and Dahlia Lithwick (who quotes the former) had articles on Ginni Thomas' Tea Party activism.  Yes, Mrs. Justice Thomas.  Lithwick notes that Ms. Thomas is very youthful and energetic.  She looks a bit less "youthful" in one of the articles linked, but if 90 year-olds can play tennis, the fact she is full of energy in her 50s is not too surprising. Many readers know of the energy level of parents, some are even around that age themselves, and they are full of life. Having a cause you believe in and fighting for it helps in this respect.

I don't begrudge her the right to be an activist and the fact a few of many justices' wives had a hard time doesn't mean they all do. Ruth Bader Ginsburg's husband apparently did rather well for himself and the wives of most justices appear, with the usual troubles of being a spouse of a public figure, did okay. Others play a public role while their spouses have judicial roles. As a NYT article linked in the piece notes:

In past interviews, Mrs. Thomas has suggested she is being singled out unfairly; other spouses of judges are politically active, she has argued, usually mentioning Gov. Edward G. Rendell of Pennsylvania, a Democrat who is married to a judge on the Court of Appeals for the Third Circuit. Mr. Rendell has to disclose direct contributions to his campaigns. And parties can appeal to the Supreme Court should his wife not recuse herself when her impartiality is questioned.

Of course, a justice is more important than a lower court judge and there is some dispute over disclosure in Mrs. Thomas' case, but we should be well aware that the justices' family aren't all living in a monastery or something (though at least two of their children, that I know of, are members of the clergy).  Judge Reinhardt's (the famous/infamous liberal judge from the Ninth Circuit) wife plays a role in the ACLU.  Ginsburg's husband was a tax lawyer/professor, who surely had public opinions about tax laws the Court ruled upon.  As Tocqueville noted, the Supreme Court eventually rules on most everything, down to issues involving education (guns in schools, funding issues, drug testing, etc.).  Some people are more directly involved than she is, given her role in more political, than legal interest group related. 

As to her railing against the PTB and being the wife of a justice (reference in the Slate piece), well, there does tend to be a certain myopic view there. Hubby is different. My congressperson (or gay friend or whatever) is different. And, he's surely one of the select -- he is fighting the good fight. We can trust him.  And, the Tea Party has a tendency to be selective in their focus. This is not unique to them; note how coverage is selective too -- large numbers of peace activists did not get as much attention as some noisy anti-health care reform activists. 

I can understand how this all has a distasteful feel for some people, but again, they might not have been Tea Party sorts, but other wives and family members played political roles or had a voice in political causes. And, the fact it wasn't done quite like this in the past was at least partly a matter of wives not having such equal roles in political movements.  It is not like she is on FOX or has her own radio show.  The average person, even many who pay some attention to right wing causes, probably isn't aware of what she is doing.  Targeting her (or her husband as a lousy justice, as if the fact he asks questions, often largely to clown around, makes Scalia somehow better*) has a feel of sour grapes, a dislike of her politics or her husband's views.

If looked at calmly and evenhandedly, the purity sought might not work as well as some think.

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* A court watcher recently noted:

Finally, part of the in-the-flesh experience of Supreme Court arguments is not only watching the justices speak, but also watching them listen.  Several panelists at today’s symposium expressed their deep appreciation of Stevens’s ability to listen patiently and politely to the arguments as the other justices’ seemed preoccupied with internally formulating their next questions.  These scenes cannot be conveyed over audio.  From Justice Thomas’s brief-thumbing to Justice Ginsburg’s trained stare at the advocates, the justices’ listening styles may speak as loudly as their amplified voices about their commitment to the case before them.

Mike Sacks is getting to be a must-read for court fans!

Sports Update

Twins total losers again, Texas has Lee to try to stop that, injuries cost the Braves a game, Reds commit yet another error (and get swept) and the NY Giants win as there continues to be some football upsets. But, not SF, who have but another killer loss. 

Bullying Issues

This week's Gay USA broadcast centered on bullying, especially the recent outbreak of suicides arising from such behavior. The hosts -- both gay -- argue that criminalization is not the ultimate answer. In fact, they doubt a local case in NJ was necessarily the result of anti-gay animus. The fact his roommate filmed his sexual acts could be a heinous prank, one that would have occurred if heterosexual sex was involved. The solution is a change of environment, particularly of those on the sidelines.

One host referenced a tweet by 50 cent that some saw as anti-gay. The other said not to go there since it didn't seem to be the intent. As 50 cent himself noted:

The other night I made a joke about a blow job. My male followers enjoyed it. So I then went on to joke about women receiving the same. Some how they turned a simple joke about oral sex into a anti gay statement. I have nothing against people who choose an alternative lifestyle in fact i've publicly stated my mom loved women. Its funny how people think negative statements are news worthy but positive statements are not worthy of coverage.

But, it is important in this and other contexts that consequences, even if a direct intent is not present, matter. This can be seen in the context of our criminal justice policy (some interesting comments there, including on the fray), which can be racist in effect, even if they are facially neutral. A prank can be worse if done against someone particularly at risk as compared to someone else. Filming sexual acts can be an invasion of privacy, but certain types of acts are likely to be more harmful. The same applies to certain types of speech. Again, this is just not a criminal matter.

To toss in a political comment, this underlines why I find it hard to accept that allegedly neutral/independent sorts are able to support Republicans. As the hosts note, Republican after Republican say that homosexuality is a choice, a bad choice and are loathe to support anti-bullying legislation and programs. I can see how people can support various causes that are wrong-minded, but these are nasty people and/or those who aid and abet it. The Phelps clan can be scorned as gauche, but who at the end of the day is more dangerous? More hateful?

Million dollar judgments against them won't stop the hate and suicides. This is why the hosts are firmly on the side of free speech in the Phelps case, particularly since their side was targeted for causing emotional distress outside of churches and so forth. And, bottom line how extreme was their p.o.v.?

Playoff Baseball: Error Rich (Ump or Player)

It looked like the Giants would go up 2-0 but two errors (one helping their ace closer to blow things) plus not taking advantage of a bases load situation did them in. Advantage Braves now though the closer had to leave. But, unlike the Mets, the Braves might handle that.

Quick Thoughts

Six errors, four by the Reds. Losers. Meanwhile, the Supreme Court released some audio per their new policy. Listened to the Phelps case. Good stuff. The "private figure" question in emotional distress cases might be the reason for cert. since it has not really been covered.

Almost Evenly Match Game

After five mismatches (the Twins toying with us a bit), there was something of a good game last night when the Giants beat the Braves 1-0, though the one run was perhaps aided by (a now totally unsurprising) questionable call. Four or five game series?

Health Care Reform Act: First Ruling

And Also: The Rays are playing as badly as they did against scrubs at the end of the year while the Yanks continue to play with the Twins in the playoffs like a cat plays with a mouse.

The first lower court ruling on the "Health Care Reform Act" (so hard to say! must use "Obamacare" instead; simply for the brevity ... no other reason, really!) was handed down. One charm is that it is brief (twenty pages of indented discussion, half on standing that can be skimmed over) and to the point. The standing comes because even thought the "individual mandate"* at issue isn't required for years, arguably current fiscal decisions are affected.

Three quarters of the way through, the opinion gets to the heart of the matter. The excerpts below include the core arguments and a summary provided by the court as to how they apply in this cases. I combined them and separated the two by notation:

First, the economic decisions that the Act regulates as to how to pay for health care services have direct and substantial impact on the interstate health care market. Second, the minimum coverage provision is essential to the Act’s larger regulation of the interstate business of health insurance.

[1] Far from “inactivity,” by choosing to forgo insurance plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now through the purchase of insurance, collectively shifting billions of dollars, $43 billion in 2008, onto other market participants. As this cost-shifting is exactly what the Health Care Reform Act was enacted to address, there is no need for metaphysical gymnastics of the sort proscribed by Lopez.

The plaintiffs have not opted out of the health care services market because, as living, breathing beings, who do not oppose medical services on religious grounds, they cannot opt out of this market. As inseparable and integral members of the health care services market, plaintiffs have made a choice regarding the method of payment for the services they expect to receive.

[2] The Act regulates a broader interstate market in health care services. This is not a market created by Congress, it is one created by the fundamental need for health care and the necessity of paying for such services received. The provision at issue addresses cost-shifting in those markets and operates as an essential part of a comprehensive regulatory scheme. The uninsured, like plaintiffs, benefit from the “guaranteed issue” provision in the Act, which enables them to become insured even when they are already sick. This benefit makes imposing the minimum coverage provision appropriate.

Thus, the unique nature of health care in particular make the "inactivity" here really just a play on words, since people aren't really being "inactive" at all, but making active decisions that significantly affect matters of interstate commerce that the Congress can control in this fashion. This includes via a penalty added to further the end:

Congress is authorized by the Commerce Clause to impose a sanction “as a means of constraining and regulating what may be considered by the Congress as pernicious or harmful to commerce.”

So, this is not an illegitimate "direct tax" either. The argument is not dwelt on given the focus on the Commerce Clause, but it also isn't a direct tax (I would add) because it is an excise on the "activity" in question. A "direct tax" is truly a tax on inactivity, particularly on a person (the main concern was slaves here, but a blanket poll tax can be deemed one too) and land.

Finally, "inactivity" was addressed before, at least, activity not directly involving interstate commerce. As noted by the ruling, growing wheat or marijuana for personal consumption and not selling to black people were deemed things that can be barred when they significantly affect interstate commerce. And, not buying insurance, particularly given mandated insurance coverage when desired (I would add bankruptcy protections and emergency care), fits the bill.

A good little ruling to start the ball rolling.

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* There are various constitutional arguments, most pretty silly, even (see Orin Kerr and plenty of comments over at Volokh Conspiracy) though attacks on the individual mandate are too. As the ruling notes:

The Individual Mandate requires that each “applicable individual” purchase health insurance, or be subject to a “penalty” or “Shared Responsibility Payment.” The definition of “applicable individual” is “an individual other than” religious objectors who oppose health insurance in principle, non-residents or illegal residents, and incarcerated individuals. The Act, and the Individual Mandate, therefore, apply to everyone living in the United States, unless they are excepted.

The income limits plus the exceptions covering lots of people alone, this only starts to underline the slim "threat" at issue here.

Chokers of the Night: Twins

Twins had their ace on the mound and got three runs (home run/manufactured run) off the Yanks' ace. And, then gave up four in the sixth. Choke. Tied it in the bottom. Gave up two in the seventh. Choke. Lost 6-4. So f-ing annoying. Choking when it counts.

Playoffs

Two whippings, one slipping away as I type. The battle of the aces went the way of Cliff Lee, two errors by TB helping. The Reds avoided a perfect game via a walk, the game basically over before the third. The Twins went up 3-0 but gave up six in the sixth and seventh.

Supreme Court Watch

Listening to Justice Blackmun say "schmuck" repeatedly here in serious tones was something. This is calling really splitting hairs:

I concur in the judgment of the Court though I do not join its opinion. I join Justice O’Connor’s opinion except insofar as it joins that of the Court. I join Part I of Justice Ginsburg’s dissenting opinion, but I do not dissent from the Court’s reversal of the District Court’s decision.

The advocate for Rev. Phelps today in front of the Supreme Court is his daughter, a "study in contradictions." Yes, homophobes do come in all kinds. I'll be sure to listen to this argument when the Supreme Court releases it in a few days per its new audio policy. The information privacy case also sounds interesting, a chance to address what the Court only dealt with explicitly in a few cases (including Whalen v. Roe). As Justice Douglas noted in his Doe v. Bolton concurrence, limits on providing private information to the government has a long history.

See here for some good coverage on both. The latter one might be closely tied to its facts, but disgusting as it might be, I think the funeral picketing case is a slamdunk.* The last account by a senior Supreme Court onlooker underlines the fallacy of suggesting that empathy and passion isn't mixed in here. It also seems a bit ironic that it was the "liberals" who at times tried to be more focused on legal matters, particularly the women among them. Passion is spread out, but the conservatives justices repeatedly are not just concerned about the law, but do so with an edge in their voice. A dry transcript would not give us a full feel of such an oral argument.

Interesting term right out of the gate.

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* The hosts of the weekly advocacy show Gay USA have opposed laws that silence people, even when they voice hateful rhetoric. There is a line where speech becomes harassment, but if these people were protesting in public -- a point made by one of the hosts on this very issue -- how can we silence them? See also, here. There should be no "funeral exception" to the First Amendment. There can be some sort of buffer zone but particularly for funerals of public note, it can't be endless.

[I later said some more about this case in response to a Slate post here.]

Post Season Begins

But, first, the Mets fired their GM and didn't re-hire the manager. With Santana due to be out or subpar for months and overpriced dead weight blocking major signings, the best thing to do is to get rid of the weight and start fresh. Let's see what happens.

Low bar alert

Scotusblog and Volokh Conspiracy referenced accounts that suggest Kagan did a good job yesterday. Who would think a law professor appointed in part for her collegiality would handle Q&A well in two cases she had weeks to prepare for? Some coverage of the cases too.

That Crafty Roberts!

Dahlia Lithwick and co-writer provides a somewhat heavy-handed account as the new Supreme Court begins on how the Roberts Court "disguises" its conservatism. This opens things up for the usual heavy-handed discussions about guns, abortion and so forth. Some of the article however invites such a tone. This is unfortunate, since the core of what they say is often correct. But, the tone and some reflections on the details can close some minds and/or are somewhat misleading.

The metaphor is more than apt. There's another, newer, layer of illusion at work at the highest court of the land. Under the stewardship of its boyish chief justice, John Roberts, the court has taken the law for a sharp turn to the ideological right, while at the same time masterfully concealing it. Virtually every empirical study confirms this rightward turn. Yet recent public opinion polls indicate Americans continue to see a bench that is, if anything, a wee bit too liberal.

The evidence is a Rasmussen poll that says "38% Say Judges Too Liberal." There is evidence, on the other hand, that Rasmussen itself is too conservative and not reliable. But, I don't claim to know all the details there. Still, I need more to determine that "polls" so "indicate." The poll found that people found the Supreme Court somewhat less liberal than judges as a whole:

Just 33% believe the Supreme Court is too liberal while 27% say it’s too conservative.

A telling number, I think, since people don't actually know much about judges as a whole, even less about those not on the Supreme Court. Anyway, with a +/- 3% in accuracy, this would suggest that people have a certain Goldilocks opinion -- a third think they are just right, and the rest are about split on too hot/too cold. Calling Katy Perry.

Again, since people are not too aware of what the courts actually do, I don't know how much Roberts has to "disguise" his conservatism. Off bench indicators and influences probably have as much of an effect here. People can be sort of selective about how they see the federal government.

And, the "tricks" are not novel. An upcoming bio on Justice Brennan will show "shrewd" tactics like choosing an appropriate person to write the opinion (it's an old trick, e.g., in 5-4 cases to have the shaky justice write it), take a case with "attractive facts" (this was done in the New Deal -- both to find nefarious and innocent exercises of federal power), have a "win" that on its reasoning is actually a lost for the other side in various ways, etc. have been around for some time.

This doesn't suggest that Roberts isn't a talented "magician" in various ways. The most talented Chief Justices over history tended to be so from John Marshall on down. It belies his "we are just umpires" b.s., though, which makes what he is really doing look more nefarious. A Justice Breyer can upfront talk about judicial capital and all that but that sort of thing will ruin Roberts image, since he is not supposed to be so -- yucky -- pragmatic.

Happy First Monday, y'all.

Giants Defense Strikes Again

Back in the day, the Giants relied largely on defense. Last night's game had a throwback feel on that level, knocking out two quarterbacks, and basically leaving the Bears to give up with 2:30 left. There was some offense, but it still often wasn't pretty.

More Sports

After tying it late (shocker), Colts lose via a 59yd field goal. Padres can't get that last win. Few points in the Second Half, but Vick out earlier, Redskins hung on. Barely. Two football games left, lots of playoff baseball. Go Rangers/Twins and Reds/Giants. Perez? Really?

More on FNL and Other Sports

FNL: Watching the second half of Season Four again, I probably appreciated parts of the season finale (though not the Tami stuff) a bit more than the first time around. It still felt a bit more about tying up loose ends, but there was some good stuff there. Also, though I'm not as emotionally attached to him as Matt (or even Jason Street), the full season did show that Luke is a good character. He has various moments, including related to the abortion subplot (both with his parents* and Becky). And, even Mindy (Tim's sis-in-law) had some charm.

Baseball: Various teams limped into the playoffs, including Tampa Bay (tying in the ninth today / winning it late but Yanks' loss clinched first, though winning against Kansas City twice in the first three games could have done the trick) and Atlanta (hoping the Giants manage to win a game this weekend to avoid overtime baseball). The Mets, this is f-ing insane really, pissed me off, ended the season with -- get this -- a Perez loss. In the 14th, with relievers like Dessens unused, Perez was sent out there. He got one out, walked three, hit a batter and gave up the winning run.

And, then the starter from Friday came out and got two outs. I'm sorry. This is a FU to the fans. Am I the only one to think this? Again, almost the LAST THING the fans gets to see (clinching fourth place and 79 wins, though that took some more Mets non-hitting in the bottom the frame -- maybe, they just wanted to get the heck out of there) is OLIVER F-ING PEREZ do that, and he isn't even the last pitcher out there. Please, GET RID OF HIM NOW!!!!!!! It's the last day, I doubt many want to see that guy, and there were other arms to use for at least another inning or two. What are you saving them for? Bye Jerry.

Football: Four teams are 0 and 4 ... three of them had a decent shot at winning against superior teams today. The third, the Bills, kept the Jets somewhat close with an end of the First Half TD (the 17-7 score was closer than it could have been), but did little else, getting shellacked in the Second Half. The Browns did manage not to be 0-4 and a couple other mediocre teams managed a second win. [Browns position corrected.] The Redskins/Eagles match-up is 17-6, Redskins at the Half. So, some good games going on today, though less upsets than there could have been thus far.

Oh well. Giants up 2-0 for that last spot mid-game. I think Citifield fans are still booing Oliver Perez. I think his '06 playoff heroics might be officially dead and buried now. The other Giants play the Bears tonight with a promising to be good Patriots/Dolphins game tomorrow night as well.

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* The first episode I watched is the one in which Becky gets her abortion. But, though the episode shows Becky interacting with various people here (and the episode is in fact mid-story arc), there is a lot more to the plot. Luke and Vince have major scenes, and not just about one thing. And, there is more stuff as well, all done rather well. It was a good first episode for me to watch.

A model for conservatives?

In the end, this is a valuable account. Hezbollah has found a supple and sophisticated extremist formula — the combination of social services, an aura of incorruptability, jihad and inspiration — that can and may well be replicated throughout the region. It also represents an alternative value system, popular and horrifying, to the freedom proselytized as “God’s gift to humanity” by George W. Bush. As such, Hezbollah, sadly, may prove over time to be the strongest indigenous response to the colonial hubris visited upon the Middle East by Western powers since the end of World War I.

-- Book Review

It is a good m.o. and trying to suppress them without providing an adequate replacement is folly. I also can understand if some conservative entity in this country (see, e.g., here) impresses people, even if I find their ideology dubious (at best). In fact, another article in today's paper showed this in regard to the head of Hezbollah itself. This also works for progressives trying to get a foothold in conservative areas. Being a blue dog tool is not the only path. The poisonous ideology (if one that is bent in certain cases) is still there, sure, but the "tool" part is unnecessary.*

But, repeatedly, I shake my head because this isn't the case. Do people SERIOUSLY want to replace Pelosi (a totally credible Speaker, if someone you can oppose on ideology) with the current alternative? I mean someone even halfway neutral about the politics of it all? Efficiency alone is lacking there. Must be that drink sand thing that was referenced about desperate people in American President. The need also suggests progressives (and greens and whomever) should work at it too, there being various cases where some seat is open with the right person and approach. Some token loser or dubious Tea Party style extremist is not the only approach here on either side.

Meanwhile, the co-writer of a book on red/blue America, Naomi Cahn, previously wrote Test Tube Families: Why the Fertility Market Needs Legal Regulation. It does a decent job covering the subject, but it is a bit hard going for the general reader. Still, it is not written in such a way only some specialist could appreciate. Bottom line, a rich area for research and legislation, plus an area where the courts have a very important role as well. Worthwhile middle of the road approach here.

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* I'll make a FNL reference. The charm of Tim Riggins is suggested by a scene where Becky is blabbering on about true love. He tells her to shut up, but not in a mean way, adding "please" to it.

NY Mets to Fans: There's Always Next Year

Rumors that the GM and manager will be totally gone soon are okay, but why not ensure a few players will go too? Anyways, Valdes pitched in both games of a doubleheader and started a few days later: all pretty well. Mets have a shot at 80 and 3rd. And, 3 races still open.

More on FNL

Slate had an ongoing conversation going on (ala the "Breakfast Table") about FNL for the last two seasons, so it is not surprising that a lot more can be said about the first half of last season alone. Just watching the episode after Matt leaves (or parts of it) brought up made things to say. This is the charm of the show: it has so many layers and moments. The actors, writers, camera work (you can see the grainy nature of the hand-held cameras) and more all are involved here. As I said, the opening music (and montage) is key as well.

For instance, a minor character from the team, Tinker, has a few good moments in that episode with Luke in the cafeteria and later helping him fix his fence, since Luke (who had to go to East Dillon since Buddy ratted him out to Eric, the whole school issue also a subplot) was a good teammate. Helping him here is helping the team. The team is a major aspect of this show, including Eric's role as a leader of young men. Football is a sort of religion in Texas [see also, Whip It, where a lawn sign for the player who lives there played a part as well] and the reaction (in public and private) of Vince when he is made quarterback underlines a reason why. As does Tinker helping some white kid fix a fence. And many more things. I say this as a fan too.

One important aspect of the show is its addressing of class and income. Tami confronts a funeral director who was charging Matt's family a few more thousand than necessary -- for some, that would not be an issue. It is for him. Luke's dad had to keep him out from school because of lack of funds to pay for help. Tim's brother repeatedly broke the law to have money for his family (in particular, his new wife and upcoming kid). Maybe if we had real health care in this country, caring for his pregnant wife wouldn't be as perilous. High school jobs weren't just for pocket money. And, we see the differences of funding for East and West Dillon.

There are as noted a lot of good moments and interactions, including stuff like Matt's internship with a talented but somewhat loutish local artist. Him about to berate him for upsetting Julie but then staring in awe at a sculpture he made was a powerful moment. Tami dealing with various conflicts. Matt's proposed eulogy: "Here lies Henry Saracen. His mother annoyed him. His wife couldn't stand him. And he didn't want to be a dad so he took off in the army, because that's the only way he could come up with to ditch all his responsibilities." Becky's mom berating her dad on the phone: "I don't care if you're hauling pieces of Jesus' cross back to Bethlehem." The goofy assistant coach asserting himself when the Dillon QB harassed his players at Sears. And, those freckles -- Tami and Julie are both so cute.

I will probably say a bit more about the abortion subplot but one additional issue last season was race. East Dillon is a primarily minority show, and as the Slate discussion notes, that means black here. [There was an earlier incident that also addressed Matt's new role in the team at the time involving a Hispanic player alleging someone called him a wetback, when it was in fact another black player.] There does appear to be Hispanic players, but that is one issue the show does not address too much, though Buddy going to the Spanish radio station underlines that it is an issue. The show is on dangerous ground with a possibly stereotypical character like Vince* though Jess (she also had a few good moments in deleted scenes), Tinker and others suggest the complexity there. And, though the Vassar background of his now drug addicted mother is a bit much (so noted Slate, but I missed that tidbit the first time around), I think Vince is handled pretty well in all respects, including the performance itself.

The moment where Eric decides to try to address the needs of a park in a black area didn't work that well. But, the season did cover some ground here, including when former East Dillon players Eric calls in to help doesn't trust him. Showing a possible means of unity, Buddy saves the day, his arrival finding a common denominator based on football (he played on the rival team, but they still respected him for his ability). Landry and Jess had an uncomfortable moment at the dinner they had at his place. It calls to mind the problems Smash had with his white girlfriend, race also being an issue for the team -- recall his boycott over comments made by an assistant coach.

Maybe, we will see more in the fifth season, Tami going to East Dillon suggesting more singular focus on that one locale.

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* Among the deleted scenes, in fact, is one involving him and a friend being taught how to steal cars and later stealing one -- did they want to tone that down a bit? The implication in the finished product was that Vince went back to doing things like that when he (health care alert again) needed money for his mom's drug addiction treatment. The car ring connects with Tim/Billy running a chop shop. These characters are all so interconnected, aren't they?

[I edited this point after finishing this post, adding the Spanish speaking radio bit plus the Sarah Vowell reference to the last post. This just underlines all the different things that can be said about the show. I guess I will just leave it be, knowing more can be said, even on the topics addressed.]

Lest we forget

He missed a beautiful opportunity,” Mr. Rogge said finally. “He could have pointed out how we were five minutes from the brink of anarchy.”

Colbert had Obama's "car czar" on making a related point. Maybe we still are on the brink. Who do you want in office dealing with it?

Friday Night Lights: Fourth Season

And Also: Keith and Rachel, particularly the latter, tonight underlines that there is no reason why Democrats can't defend themselves this year. The opposition are repeatedly weak on the issues and personal actions. But, the Dems are goners. They are the Mets. Just go home.

I became a fan of FNL in the midst of the Fourth Season, catching the main abortion related episode, one that received a lot of kudos (particularly from the left). I saw an earlier Law & Order abortion related episode, one that tried to be so balanced that even killing an abortion doctor made the choice member of the team weak-kneed. My review was mixed; less so here: FNL put forth a powerful episode, one true to its characters.

And, the after effects were well handled too, though I did not like the finale of the story line (thus far) on Tami's end. Yes, I needed to watch more than one episode to get the full story, including stuff that happened before it. But, you had to watch many more episodes to get a sense of the other characters, finding about some who no longer are regulars on the show. Since Matt Saracen (away until the end of the season) and Tyra Collette (away) are two of my favorite characters, this was particularly important for me. Still, even in the second half of the Fourth Season, I caught Alicia Witt again, who I remember from years back in Cybil. Among other things. Oh, actors pages are different now at IMDB.

The wonders of Netflix allowed me to mow down the First Season at a quick pace, in part since I wanted to do so before my month charges ended. That is, instant access was provided. It was a great season. Oh look, the soundtrack is from that funny sounding name guy from West Wing. Both have an opening instrumental theme that is an extended burst of energy. I did not see the movie, though I saw Tyra first in a movie (Legion, where she plays seventeen pretty well, though she's about a decade older and has the height of a basketball player). It's on reserve though along with a soundtrack CD. I join with others in finding the second season as dubious. The third mostly went back on track, but like a comfortable third film, not quite as good as the better (and half as longer) first season.

Okay, so I saw the first half of the Fourth Season, the half that I did not see on television. [BTW, the series is being played now on ABC Family ... not quite Seventh Heaven material there.] I need to get the DVD of the First Season [ah!] but the third was pretty sad on extras. This is better -- there is commentary (though the second season had more) plus a good amount of extras (the IMDB page has plenty of clips and behind the scene stuff too). Now some movies go pretty crazy with that sort of thing, but I like some (a good commentary track does wonders for me too -- the first episode here had a pretty good one). And, the DVD is on Amazon for $22, which is pretty reasonable to boot.

Okay, so how was the episodes?! Pretty good. I really do like some of the first batch of characters (both teens and adults -- Tami is one of my top three and Buddy Garrity is a pretty fun character too) but the new bunch are pretty good too. My favorite is probably Becky, who I think a bit like a (now not quite, but kinda) trailer [they even have one for Tim to use] park version of Lyla. I say this because she has a determination about her along with a more sensitive side. Becky is younger and more needy, but is a strong character all the same. It's unfortunate that she is mostly absent in the last few episodes. [A bit less so than I thought with a second look.] As with older characters, a parent (Alicia Witt) also has a strong role.

It also is unfortunate that they didn't have more for Devin -- who we met the last season and find out that she is a lesbian -- to do. She has a certain low key nature about her with a self-assured core (most FNL girls/women are no nonsense deep down, don't mess with them!) that made her a good addition. [She reminds me of Sarah Vowell.] But, we saw more of Jess, Landry's new girlfriend, who has some issues with Vince -- the at risk new QB -- and her dad (who we saw before with his "you are a fool" attitude, one that sort of turns me off). Both are okay (the last new character is Luke, who impregnated Becky, taking in the destined for greatness athlete role of Smash, if with a different story), but would have rather saw more of Devin, personally.

The first half of the season provides some sense of continuity because Matt is still around. Count me in among those who feel for the guy. Poor thing. Great guy, too much shit too handle. Now, he decides to stay back home, largely for Julie (the season finale of the third season suggested it was for his grandmother), and deep down he hates it. And, then -- in a powerful episode -- he has to handle his father dying over in Iraq. I know he's a fictional character, but it was almost as hard for me to watch him "burn" (to quote Julie) as he tried to handle that as the characters on the show. Tim sticking around, Lyla coming back for a visit and so forth also served as a bridge to past episodes. Oh, sorry, the toddler looks sort of funny looking.

So, the first half of the season was in a way something of a continuation of the last. The new season truly came into stride with the episodes I saw on television: Becky needing to deal with her pregnancy, Vince was his new role as QB/his mom's drug problem/his past, Jess divided over Vince and Landry, the Becky/Tim dynamics (though that started earlier), Luke dealing with an injury, Tim and his brother breaking the law and so forth. The first half was more about Matt, Eric trying to get the team off the ground, Tami dealing with the new football team and a bit of Buddy fall out with his passion, the Dillon Panthers. There was some stuff with the new characters, as noted, but they didn't come to their own until later.

And, there was some good stuff and energy there. I still like these characters (Becky and at times Jess among the new ones are the ones I care about the most), care about them and their stories. The stories are good here as well though I wonder how the next season will be given Matt (and maybe others; Tyra and even Jason are due to at least drop by) won't be here to dominate some subplots. The actress who played Devin has said she will be back, so perhaps we will see more of her. I will have some more extras and other stuff to see. It does take some time to catch up on four seasons and a movie within a span of four month or so months.

Oh, "Tyra" and "Jess" are on two new shows, though the former already had the show canceled beneath her feet.

My condolences (poor thing!)

When I finished the O’Connor book and moved onto Scalia, I used to joke that I was trading Palo Alto and Phoenix (her stamping ground) for places like Trenton and Queens (his). Now, alas, it’s the Bronx.

-- Joan Biskupic, starting research on Sotomayor

Baseball Quickies

The Mets are running out of things to do other than end in truly pathetic fashion, .500 a lost cause, third place and 80 wins questionable now. San Diego is also fading, again thanks to the Cubs. And, Tampa Bay also making it hard for themselves. Pesky KC!

Welcome Back, Justice [ ]

Sen. Leahy's bill that would allow a retired justice to fill in when an active one recuses themselves sounds like a good idea. Even if 4-4 splits are pretty rare (though Kagan recusals increases the chances) and the current retired bunch will lead to some ideological opposition.

Baseball Quickies

The Yanks and Rays mostly keep on pace limping to the finish line, there is no miracle finish for the Rockies this year and more Mets "fun." A great come from behind win ended after 7.2 (and failure to tack on runs) and Dickey lost the nightcap giving up a run.

So you want to vote these guys in, huh?

The 268-160 vote on Wednesday came after passionate floor debate. Democratic supporters said they were standing up for sick 9/11 heroes. Republican critics branded the bill as yet another big-government entitlement program that would boost taxes and kill jobs.

Yeah, we can only use them to bash Muslims and fight wars.

Photo Policy

In article about a suicide allegedly influenced by an invasion of privacy, the NYT provided a photo of the person AND two college students allegedly involved in the invasion. I'm wary about showing photos of alleged people, particularly in sensitive/heinous situations.

As Long As That's Not All ...

Christine O'Donnell (shades of Bush) said that God helped convince her to not quit her Senate campaign. Even aside from her audience there, disdain should be tempered. Many have a sense of right and wrong as well as felt compulsion to do stuff that is similarly um intangible.

Baseball Quickies

The Yanks, Rays and Reds are in while the Braves (with help from the Cubs) have a safer position for WC. The Mets showed some life by coming from behind in the 9th. Another good finish when all is over? .500 means 4-2, 80 wins, 3-3. NL West open. Giants ahead.

How about Arena Football?

Who knew? I past this high school repeatedly, but didn't realize that its football field is only eighty yards long. I also went to the White Castle there. But, why was it built that way? The article, as is often the case, leaves out an important detail. Stupid move anyways.

New policy on tapes release

I have repeatedly said that providing audio of oral arguments would be a reasonable if not totally satisfying compromise for the televised it crowd. So, the new policy, even with the one week delay, is much appreciated. Slowly, they advance. Justice Kagan gets two circuits.

Melissa Rogers Sighting

I include a blog by Melissa Rogers on my side panel, but she no longer is active there. But, she provided some intros to this discussion of RLUIPA at the liberal answer to the Federalist Society. Interesting subject with some strange bedfellows; see, e.g., Marci Hamilton.

That's something, right?

The Mets fan, .500 tricky, has to grasp for things to be happy about.  They lately can't even manage to safely stay on base.  Splitting the season series and having the Phillies have to wait (if only hours) after the game yesterday to clinch a spot is one such thing.

Let's Play Some Ball!

The N.Y. Mets won a series in Philadelphia, preventing them from celebrating winning the division at home. The Jets had a good game, the Giants another lousy one and the Yanks managed a win. The Braves lost again and there were some more good ball games.

Beyond Marriage

And Also: The story is a bit slight, but the lead performance and visuals make Cairo Time well worth watching. I might say the same (well for parts of it) about a couple performances in this film too. Love that faux British accent. And Ms. Lynne is usually worthwhile. 

A family is a group of individuals who love, hate, trust, question, need, console, and depend on one another as they grow and mature and learn how to give a little more, take a little less... all in the same environment, whatever or wherever it may be.

-- Lynn Johnston of  "For Better of For Worse" fame

We are in a midst of a time where there are various court cases centered on equality for homosexuals, including in the area of marriage. One thing that repeatedly arises during online debates is some group who suggests the way to go is just do away with marriage as we know it. They often sound like some high school or college student thinking they are so smart and/or avant-garde about the whole thing. This tends to annoy me since it is not realistic and the matter at hand is that one certain group is burdened. Is this how people reacted when Loving v. Virginia arose in the race context? Also, two person marriage to me still retains a certain cachet that warrants special treatment.

But, the author of Beyond (Straight and Gay) Marriage basically agrees with them. Many countries have policies that provide rich benefits to those who are not married as noted by When Gay People Get Married by M.V. Lee Badgett in particular in regard to the Netherlands. She notes that cohabitation provides 75% of the benefits of marriage, many strengthening things by explicit agreement that re-enforces what is provided by law. And, this follows the holdings and logic of many Supreme Court rulings, starting with those (e.g., Levy v. Louisiana) that provided equal protection to illegitimate children.

Lawrence v. Texas strengthened a theme that "family" need not be considered merely a married couple with 2.5 kids. In the 1970s, the importance of extended and mixed families was addressed concerned a residency requirement that burdened a grandmother raising kids. We must not "close our eyes to the basic reasons why certain rights associated with the family." As noted by Justice Marshall in another case, right to "establish a home" has a broad reach. Lawrence underlines cohabitation is no longer something that can be targeted, thus marriage is not as necessary as in the past where a religious ceremony alone would not be enough in that regard.  Cf. opinions here.

The book cites a broad interpretation of a N.Y. law regarding "family" for purposes of what a household is for residency purposes. Another Supreme Court discussion seems appropriate here as well:

Family relationships, by their nature, involve deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs, but also distinctively personal aspects of one's life. Among other things, therefore, they are distinguished by such attributes as relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, and seclusion from others in critical aspects of the relationship. As a general matter, only relationships with these sorts of qualities are likely to reflect the considerations that have led to an understanding of freedom of association as an intrinsic element of personal liberty.

And, the breadth of the problem goes beyond marriage rights:

The time has come to reframe the narrow terms of the marriage debate in the United States. Conservatives are seeking to enshrine discrimination in the U.S. Constitution through the Federal Marriage Amendment. But their opposition to same-sex marriage is only one part of a broader pro-marriage, “family values” agenda that includes abstinence-only sex education, stringent divorce laws, coercive marriage promotion policies directed toward women on welfare, and attacks on reproductive freedom. Moreover, a thirty-year political assault on the social safety net has left households with more burdens and constraints and fewer resources.

It is very appropriate to recognize how changing views on "family" and how "marriage" is not deemed to be all, end all here, is important in a myriad of contexts involving health care, child welfare, housing, social relationships and more. As in other countries and a few places in this one, there is a strong logic to having various types of "domestic partnerships" or "civil unions" that address various relationships, including siblings, households, parental units and so forth. Marriage would not be all that would be involved here and trying to fit everything in that box would be discriminatory and basically illogical.

These set-ups would provide a means to establish some collection of rights without the need of complex and often costly arrangements. For instance, right of occupancy in rent controlled apartments or control over them for the adults living there. If there is some flare-up with a fellow occupant, especially when finding a new location would be problematic for any number of reasons (such as age or disability), some degree of protection should be provided even if the person doesn't pay half the rent or whatnot. Any number of other scenarios can be imagined, such as two sisters owning a farm and if one dies, British estate taxes will require the other to sell. A right to life tenancy should not only exist in that context for married couples.

I am still not totally sold that "marriage" should not provide some sort of special legal benefits. "Civil unions" suggest a set-up where various types of families can be formulated, not just a two member bilateral one, which is one reason why it is not a fully adequate alternative as long as state sanctioned marriage is still present. But, in both cases, there are sound reasons why the couple has special rights. What is involved in most cases are two people from separate worlds, so to speak, coming together, and in more cases than not, there is some connection there beyond merely financial or even friend based.

Putting the latter aside, and honestly it is a little hard for me to do so, giving stronger protections to them than siblings (who are already united in a core way) is logical, isn't it?  Also, often the value of marriage is that two people share benefits and responsibilities, such as health proxies, for which multiple parties are less appropriate or cleanly divided.  Sometimes, this works for other two party units (or multiple groupings are easily possible, such as to share a home) but consider siblings or a parent and children.  If two parties are best, what sibling is the second when there are more than one option?   Another reason why "let's just do away with marriage" is complicated in specific situations.  A marriage has all the components over other groups for a reason, one that is far from unreasonable, and in some ways is rather appropriate. 

This is not an "either/or" situation though the concern is that favoring marriage will result in just that. But, in many cases, it is not even today. The issue of "second parent" adoption underlines this -- a key reason why an intermediate court recently decided that Florida's ban on same sex adoption was irrational is that being married is not a requirement for adoption. This is as it should be, even if marriage (civil unions) are still available. And, providing open-ended benefits in a myriad number of contexts is a good fight to make, since there are any number of situations where there is a broad acceptance to the idea. One need not be homosexual, after all, to imagine cases where rights beyond marriage could be essential for one's well being.

It does underline how ironic it is that some social conservatives find same sex marriage so troubling. As some of their brethren warn them, watch what you wish for. If you require same sex couples to take an alternative route, others will find it quite attractive as well, particularly since so many find that now.

Missed Maddow Opportunity

Even if he didn't/couldn't talk about it, why not even mention that Jonathan Turley has been in the midst of an impeachment trial, one from what I have seen is full of local characters that would be prime material for either her or TPM, which is getting too gossipy at times.

And Also

Major Witt [on Maddow tonight], the lesbian air force nurse, was ordered to be re-instated by the trial judge. Interesting article on Valerie Plame. And, "wait to the year after next?" A plan for the Mets in 2011: get rid of old wood and don't do something stupid.

Colbert Comes To Washington

[On Saturday, the NY Daily News -- Colbert's show is taped in Manhattan -- covered his appearance, only talking about his opening statement and joking comments.  The Lieberman-esque op-ed department just saw it the FOX way -- as a waste of time and in bad taste.  No comment on the other serious witnesses, how other celebrities testified in the past (including Elmo) or his serious from the heart comment cited below. 

OTOH, I talked with someone who never even heard of the guy.  Much blog verbiage is spent on just that sort of inside baseball.]

Stephen Colbert, yes him, was a witness today in a House "Hearing on Immigration and Farm Labor" though Rep. Chu noted that given some past testimony (from Loretta Switt or Elmo), it isn't totally unprecedented. Colbert had an amusing intro (a bit different from his more straight prepared remarks), but he was serious in an answer to Chu:

"I like talking about people who don't have any power. This seems like, one of the least powerful people in the United States are migrant workers who come and do our work, but don't have any rights as a result. And yet we still invite them to come here, and at the same time we ask them to leave. That seems like an interesting contradiction to me." He said immigrant workers were seen, particularly during a recession, as "the least of our brothers." While he "didn't want to take any of their hardship away from [other groups with problems]," Colbert concluded, breaking character, that "migrant workers suffer, and have no rights."

The chairwoman invited him on because he -- and this isn't the first time -- when his satire made an important issue known to the general public:

Colbert was testifying on behalf of the United Farm Workers Union, which is pushing an agriculture jobs bill to give illegal immigrant farm workers a path to citizenship. The UFW started a program called "Take Our Jobs," with the goal of drawing attention to the large immigrant population that comprises America's farming work force. Primarily, the UFW argues, this is because Americans don't want those types of jobs, and the program is a tongue-in-cheek way of drawing attention to this. Colbert is one of 16 people to take up the UFW's offer for Americans to literally "take the jobs" of immigrants.

I think this is a reasonable idea, though realize some might think it's inappropriate (see Colbert's show last night for someone who did), particularly him testifying in character for most of the time. But, it is not like he was the only one there, and he did in fact spend time with migrant farm workers. And, the quote above suggests (as does various other accounts of his private life, including being a Sunday School teacher) Colbert has a serious side that supports public service.

In reasonable doses, this sort of thing is a way to promote important issues, as does his interviews weekly that provide diverse material to the public.  [Update: Keith Olbermann had a good segment on this matter that agrees with me.]

Silly Moment of the Day

Again, naturally big-breasted women are persecuted. If Katy was a surfboard, no one would've said anything.

-- Reply to Katy Perry Being Held Too Risque For Sesame Street

Women, especially of a certain body type, show as much or more inside and out in front of children. Sort of a perverted mind-set really.

Affordable Care Act Starts to Kick In

Mary Thompson with her daughter Emily, 11, who had not been covered by her parents' insurance because of pre-existing conditions.

The NYT notes (with some articles): "On Thursday, the six-month anniversary of the signing of the Patient Protection and Affordable Care Act, a number of its most central consumer protections take effect, just in time for the midterm elections." C-SPAN had coverage of an event involving President Obama making mention of this fact (calling it the "Affordable Care Act," though some find it so hard to think of a name other than "Obamacare"*).

It's amazing really. Don't the Democrats have nothing to run on, other than fear of Republicans? Glenn Greenwald? He annoyed me recently via a neat trick: both finding a way to criticize Obama in the midst of comments promoting Democratic accomplishments (he ended with a dig at critics who are upset the Dems don't do enough, which GG targeted) and scorning their fear mongering of Republicans. As I noted in comments, Sen. Kirstin Gillibrand sent out her first campaign commercial, which focuses on her attempts at transparency. I doubt she is alone here. The fact Democrats aren't doing enough is not reason to stereotype like this.

One article notes that insurance companies have a long road to travel in handling the new law. The fact that some fear the extended benefits will not be profitable is a telling point. The fact that certain things, such as medical care for children, is not profitable in dollars and cents is not necessarily reason to deny it. Many leading Western countries realize this fact in their health care policies. One day, maybe we will in a more complete way. As of now, the law seriously expanded protections for those in need. Republicans want to repeal this:

Under the new law, insurers that offer child-only policies must start covering all children, even the seriously ill, beginning on Thursday. Insurers must also begin offering free preventive services, and for the first time, their premiums must start passing muster with federal and state regulators by the end of the year.

Obama also referenced the ability of parents to keep their children on their plans into their twenties, a reflection of modern realities regarding post-graduate children often not leaving home. Obama and hopefully other Democrats (except for a few blue dogs -- who were shown on a striking special report on Keith last night on the true nature of "small business" to be hypocrites on tax policy, claiming to be fiscal hawks but supporting tax breaks for the rich which will add to the deficit -- who campaigning on their opposition) are reminding people about these things. Republicans didn't seriously work with Democrats to protect the good and challenge the bad. They just said "no."

[Update: Republicans -- as Rachel Maddow noted earlier tonight -- actually put various aspects of the health plan in their platform. So, apparently, they don't just want to repeal the whole thing.]

Both for that and the (flawed) good offered by the Democrats, the choice in November is obvious. Like Bill Maher told Larry King, sure Obama has his problems, but he was given a mess, and the fact it wasn't clean after two years shouldn't mean we should give power to the group with a bigger part in making it. Some find this "negative" reasoning unsatisfying. I find that a bit curious, as if not getting hurt is a bad reason to cite for avoiding touching hot stoves. But, fine. The Democrats also did good things. If you want to pressure them to do more, go right ahead.

Good luck if you vote in their opposition. BTW, I love how people who think Democrats threaten their "liberty" want to vote for people who will only do so more. Of course, often that is but a line they used. It is certain policy issues that really concern them.

---

* Some over at Volokh Conspiracy like to use "Obamacare," though some have called them on it. The basic complaint is that it is a cheap political laden label that isn't even that accurate. It is more a baby of the U.S. Senate.

"Reaganomics" is a rough expression of an economic scheme truly associated with the Reagan Administration. This legislation is not similarly basic to the Obama Administration, nor did it have primary control over its basic terms, though yes, as with other legislation, it had some influence.

Summer Over, Mets Long Gone

The NYM was eliminated yesterday. After finding a team worse than them (Pirates), they were back to being pathetic. Above .500 but a few days ago, a .500 finish was possible. But, they haven't won since. Oh, Lucas Duda is hitting now. 1 of 33, he might even get to .200.

"A Judge's View"

Justice Breyer in Active Liberty summarized his "pragmatic" approach to judging, one that furthered the role of "establishing justice" (Preamble of the Constitution) via a "democracy promoting" approach. This involved interpreting statutes (he is more liable to focus on underlining principle, not bare text, including the legislative history Scalia scorns) and constitutional provisions. The latter he approaches by being concerned by underlining principles, seen through the test of time. Here's a more extensive review. But, here's a quote that gives you a taste of his approach:

[Judges] 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.

Making Our Democracy Work: A Judge's View is more focused on one group's part in all of this, the courts, hoping to explain a way to do it well and in a way deemed legitimate by the people overall. He comes off to this reader as an ideal teacher and judge, polite and fair, humble and wise, someone you can trust with the great responsibility given to federal judges.* As pretty good review (I use qualifiers like that or "apparently" in a way he sometimes does -- I hedge because it is not a white/black thing, it is a judgment call, that often is a matter of "as a whole") notes:

It's thus a bit surprising — and refreshing — to have a sitting member of the court produce a book examining its work. And yet, Justice Stephen Breyer has written not one but two illuminating treatises that thoughtfully place the court in the larger context of American democracy. His latest, "Making Our Democracy Work: A Judge's View," extends his public ruminations with what are becoming his hallmarks: wisdom, modesty, incisiveness and a touch of naiveté.

Breyer begins by discussing the concept of judicial review and a few key moments (Marbury, the Cherokees, Dred Scott, Little Rock, 2000) in its history, showing himself as an "engaging storyteller, presenting those episodes with a light pen, illuminating the constitutional issues deftly." The Cherokees and Little Rock cases are told particularly well, including a few tidbits (such as the moderate nature of the school board) that many probably don't know. Some details are left out -- I continue to think it artificial to discuss Marbury without showing how judicial review was practiced beforehand -- but overall these are helpful snapshots.

He then explains how a judge can write "decisions that work" (counseling readers to first read a very good summary he provides about how the federal courts operate) in areas like interpreting statutes or administration rulings. This is a bit more technical but his focus on "purposes and consequences" (or "values" and "proportionality" when dealing with individual liberties) is on the whole readable for the average reader, for whom this book is geared. Again, Justice Breyer is humble here. He gives great responsibility to judges, but doesn't promise perfection. Sometimes, I think he is wrong (often using his own criteria; for instance, at worse, his dissent, not the "giving nothing" dissent of Stevens in Heller, which he joined, is the more pragmatic approach). Purpose also seems a bit too open-ended at times.

But, overall, his approach is at worse quite useful. For instance, the last two chapters contrasts the total discretion of Korematsu with the more balanced approach of the detainee cases. For some reason, he leaves out the more troubling Padilla case. Still, the comparison suggests how judicial review can promote democratic ends, democracy as understood by our system, having an independent role that still respects its limitations and the other institutions involved. This humble but assured within its proper zone approach is a good model to follow and probably has implications for other branches as well.

He finishes with "hope" that the book will help people to understand our constitutional system better and lead them to ponder it some. "That is why I have written this book." It's appreciated.

---

* When I referenced this book earlier, a link is provided to a blog post talking about the book in which I had various comments. Some regarded my belief, to me somewhat strangely questioned by Prof. Orin Kerr as if what I was saying was news to him, that Justice Scalia too often promotes a stereotypical view of his beliefs. A view that I later noted had an unpleasant edge that even led more than one of his colleagues to publicly note their disappointment. See also, here.

This doesn't mean Breyer is perfect or sometimes doesn't do something that annoys. Or, that Scalia is simply a tool. As I said, honestly, I respect Scalia for putting his (quite intelligent) views out there and challenging (with enjoyment) the views of others. This works better than Kennedy not deigning to respond to some comments made by the dissent. But, as the last link suggests, there isn't just a certain unpleasant edge to Scalia's comments. They have a certain faux nature, often a result of what comes off as intellectual laziness mixed with snotty assurance.

Breyer is pretty sure of his views, you have to be to be a Breyer justice ("activist" in the sense of actively doing the job of a judge), but he mixes in some humility. The fact he is making a value choice, one not somehow compelled by history or text, can be readily admitted, since as a human judge that is the only alternative. Scalia needs to use legal fiction but can't bring himself to admit it, since it would "ruin it" by letting the subjective cat out the bag.

Teresa Lewis: Dead Woman Walking

[Update: A comment here suggests a reason for Ginsburg/Sotomayor voting for a stay; the primary post is a bit stereotypical. U2: She was executed Thursday evening.]

Democracy Now! this morning had another feature on Mumia Abu Jamal, the cause célèbre of the abolitionist movement. I'm somewhat tired of the whole thing, since there are thousands of people on death row, only a small number receive much attention. But, this one, gets lots of it, partially because of the eloquence of the defendant. Also, even those who are no fans of the movement admit the case had various due process problems. If possible, a commutation to life would seem to have saved a lot of time and bad publicity. On the other hand, murky or not, he was convicted of a cop killing.

But, again, there are many other stories such as the Troy Davis case (which led to a truly novel order by the Supreme Court to re-examine), which are less well known, partially since a few cases like this dominate the coverage. The notable case of the moment is Teresa Lewis, even getting mixed in with an Iranian controversy, someone allegedly (though the President there denies it -- if you can't trust him, who can you trust?) sentenced to be stoned for adultery, but also somehow mixed in with a murder of her husband. Since in both cases, the men involved were not sentenced to death, that too is tossed in the mix. To personalize her:

The fact she is a woman makes her case more sympathetic for some, but then again she was involved (and, though this is in dispute, held to be the "head of this serpent" by the sentencing judge, that is, it was her plan) in the cold-blooded murder of her husband and stepson (a reservist about to be sent overseas) for insurance money. If that last bit isn't bad enough, she also was accused of encouraging her teenage daughter to have sex with the two co-conspirators. Lewis was thirty-three at the time, the two guys who did the actual murder (and received life sentences, though one killed himself in prison) twenty and twenty-one. This is the sort of case where the death penalty seems appropriate to many people. Treating her different because she is a (white) woman (or found God, who just loves prisons, apparently) is at least somewhat arbitrary.

[After she was executed, her lawyer said: "Tonight the machinery of death in Virginia extinguished the beautiful, childlike and loving human spirit of Teresa Lewis. For her family and friends, for her fellow inmates at Fluvanna, for her thousands of supporters in Virginia, the United States and around the world, her death is a tragic loss."  I realize his position and all but that was a bit much.]

But, there are complications, as there usually are. She did lead the police to the gunmen, after originally declaring her innocence. There is some debate over who was the true "head of the serpent" here, though the evidence of her somewhat reduced involvement only came out later, as part of the clemency petition. There is some argument that she is borderline retarded. As the Supreme Court noted the year before she helped kill her husband and stepson:

Those mentally retarded persons who meet the law’s requirements for criminal responsibility should be tried and punished when they commit crimes. Because of their disabilities in areas of reasoning, judgment, and control of their impulses, however, they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct. Moreover, their impairments can jeopardize the reliability and fairness of capital proceedings against mentally retarded defendants.

But, the ruling gave the states discretion over determining the proper standards here, a matter that has led to continual litigation, down to another case the resulted in the person being executed recently. Here too Justice Sotomayor would grant a stay (joined this time with Ginsburg; five votes are needed in this situation), starting to be a somewhat consistent vote in that area. The evidence is too mixed to give her a serious shot on this ground, even if someone thinks she should get the benefit of the doubt. It is this issue and the actual trigger men getting life that are the main concerns.

Teresa Lewis is a typical example of the problems with the death penalty. A few cases aside, and yes they might be enough, actual innocence is rarely a likely thing. The problem is more that it is "so wantonly and so freakishly imposed." Taking alone, many will not cry for Teresa Lewis, who helped kill her husband and soon to be serving overseas stepson for insurance money. Hard to feel much sympathy for that. But, the people who actually killed them were not sentenced to die. And, her mental state is open to question. I think there is reasonable doubt that the death penalty is being fairly applied.

Given that execution is inherently cruel in various respects, if there is even some doubt, especially given I doubt someone like this is going to kill in prison or have the wherewithal to escape (events showed her compatriots were more likely to do that in some fashion), she shouldn't be executed. And, if someone like this is "spared," yes, it would be hard to imagine who will not. Your Mumia Abu Jamal or Troy Davis might have some other issues. There always tends to be some. The lack of assurance makes the finality of death that much more problematic.

For these people and other cases deemed less newsworthy.

Lockstep Block of DADT

It is "political" to support equality and promote citizenship for those who serve in the military. Politically, one side supports bigotry, even in the face of military and majority opinion. The hope is eventually (lame duck time) a few will not be total tools about it. Whatever.

[Rachel Maddow did her job and called "b.s." on the "political" part.]

Burris plea denied

Here is a discussion of Sen. Burris' failure thus far to obtain relief in an effort to be on the ballot for a special election to complete the final months of his special term. It is a bit strange (and upsetting) that he (and potential voters) can be so denied.

TV Quickies

Rules of Engagement didn't start on a great foot and though Mike & Molly has its heart in the right place, honestly, neither did it.

Einfühlen

[I received a few hits from my comments here, a blog post citing coverage of Breyer's new book. Time to read the book and stop worrying about blog comments regarding it.]

The book Novel History: Historians and Novelists Confront America's Past (and Each Other) has a chapter discussing Gore Vidal's book on Burr (I have not read it) with commentary from Joanne Freeman [see side panel] and a response from Gore Vidal himself. He discusses something that I'm familiar with though not by that name:

The word is Einfühlen. A neologism invented by the German philosopher Johann Gottfried von Herder (1744-1803). The word is often translated as "empathy," but Herder's use of it has far more reverberations than simply being able to put yourself in someone else's shoes. For one thing, the shoes in question are often in the past and the past is a different country with different air and full of people not like us but like themselves, and though we share, perhaps, the same DNA, the worlds back of them and before them are simply not our quotidian world and so it takes a certain kind of imagination and modesty to walk about in those shoes in a physical and moral landscape so entirely different from ours.

Or, "an ability to get into the past, while realizing that it's not just another aspect of the present, with people you know dressed up in funny clothes." The charm of Joanne Freeman's book is in part her ability (or good attempt) at showing us how the world of the 1790s was so much different than our own. To obtain a good sense of the different world of another era is important to obtain a true understanding, one that too often is not done. Another era too often feels too like our own.

Justice Scalia et. al. think they are able to do this. Original meaning of the Constitution, for instance, would tell us that sex discrimination isn't a concern of the Fourteenth Amendment. Does not the Nineteenth Amendment change things some? Now flag burning, surely that is covered. He is willing to follow precedent; well, selectively. He was for cameras in the courts, but now figures people will only get misleading tidbits from them. Unlike newspaper coverage? And, Griswold is a "total absurdity" -- family privacy would surely not be a fundamental liberty to anyone in the founders' generation!

The job of a judge is to interpret the law. It is best that they focus on being lawyers and judges as compared to being historians, which might be above their pay grade. I am about to read Justice Breyer's new book, but he has discussed similar themes before. Active Liberty is a smaller volume that is based on a series of lectures putting forth his "democratic" (small 'd') view of judging. I think it is a bit too limiting (forcing the Constitution into one basic box does that -- see also, Democracy and Distrust), but like that other volume, you can appreciate the journey even if you disagree with some of the conclusions at the destination.

[I started to read the book and the appendixes alone underlines the point. He includes a pictorial history of various moments of court history and then a quite good and succinct summary of what the Supreme Court does. This is all done in a down to earth way, which is impressive if you ever heard one of his law professor-like questions during oral argument. Again, some of his conclusions are questionable, but you can say that about most judges. The way he puts forth his case underlines the charms of his style. As an aside, both he and Scalia have a child who is a member of the clergy! Now, how often did that occur? ]

The discussion seems more honest about what is going on, even if you disagree with various points made.* This includes that judging, for good or ill, is not just about looking at the text or original history. It isn't how it's done, even if you want it to be like that. As Breyer summarizes:

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.

Some also break things down into six basic categories, all of which go into the making of our constitutional law and understandings. It isn't just "well, people in 1870 wouldn't have considered gay people as protected by the Fourteenth Amendment." Finding out roughly what they thought, and what went into their thinking (e.g., various racist and sexist considerations that even many originalists are loathe to accept as binding, which would justify segregation and anti-miscegenation laws) is hard and greatly debated. Originalist writings often get it wrong or provide half-ass analysis. Add that interpreting the law means more than that, Scalia's approach (or the approach he claims to follow) leaves something to be desired.

Einfühlen is helpful either way, since history is part of it and it is useful to be able to respond to critics on their own level. It also is important to understand the past in general, putting aside the application to judicial debates of this kind. Let's not even get into the whole "empathy" thing! Talking about interesting foreign words, how about this ancient Greek practice, a possible precedent to judicial review?

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* I also thought a few comments found in Drop Dead Diva realistic as well. A lawyer notes the "law never stands still ... it's a reflection of society," it is a type of "smart mirror." Times change, even if certain basic things (thus the Constitution does serve as something of a limit) stay the same: "law is the wisdom of the ages wrapped in the opinion of the moment." This is all very human, imperfect, but realistic. And, honest.

It is also somewhat ironic that Justice Breyer's path is more "democratic" in various respects, including in that the people as a whole support it (if disagree on particulars), while the other side is liable to call his side less democratic. History, they say, restrains them, not their will alone. "History made me do it." Or, "text made me do it." As if others don't claim the same.

Border Issues

[The below is what I care about, not things like this, which is not even really worth mentioning on a fiscal level, even if it was totally useless. Which as the first comment notes it probably was not. But, seriously, it is not what matters.]

There is an interesting article in today's NYT on some controversy in an Utah newspaper over immigration issues, which also discusses the complexities of the Church of Latter Day Saints' attempts to appeal to Hispanics:

“We, of all people, should be sensitive to the desire of others to provide more opportunities for themselves and their families,” Mr. Willes wrote, making a direct appeal to Mormons’ sense of their history. Like Mormons, who fled the Midwest in the mid-19th century after failing to assimilate into society, undocumented immigrants know what it is like to be outcasts, Mr. Willes said.

A post is forthcoming that in part touches upon Justice Breyer's new book, which includes a focus on the principle behind constitutional provisions. Another good "sidebar" piece by Adam Liptak suggests how principle sometimes is lost when applying the law. Justice Holmes' dry focus on only "law" aside, the Preamble's counsel to "establish justice" includes doing better for the mother and child than has occurred here. One hopes that the "fall between the cracks" nature of what happened to these two American citizens is not typical, but the mentality shown leads to some doubt. To cite the caption:

Monica Castro has asked the Supreme Court to hear an appeal in her suit against the government for deporting her daughter, an American citizen, with the girl’s undocumented immigrant father.

The article has to be read to be believed (well, not really, sadly enough). The mother of a baby is given "until [the] afternoon to get a court order if she wanted to keep her daughter," that is, not to have her deported with her undocumented non-citizen father. She was able to get her back three years later. Castro is left to seek out monetary damages to get a modicum of relief and put into practice remedies in place in part to influence future Border Patrol decisions of this sort:

Holding Mr. Gallardo and the girl overnight, long enough for an American court to sort things out, would have involved “a tremendous amount of money,” Gregory L. Kurupas, the agent in charge of the Lubbock and Amarillo stations at the time, testified in a 2006 deposition.

Asked to quantify the daunting sum, Agent Kurupas replied, “Well over $200 plus.”

Thus far, she has to deal with judges who let her know that it all is unfortunate and all, but we don't want to restrict their discretion or anything. A look at a recent en banc ruling linked by the article, shows that even one of the dissenting judges joins in (partially) with the "missing the forest for the trees" judgment. The fact that the panel is split underlines that the question is not clear-cut either way. This sort of sophistry is not compelled:

Again, Gallardo had his daughter, R.M.G., with him when he was arrested. By permitting Gallardo to keep R.M.G. with him, the Border Patrol agents did not improperly make a custody determination;  rather, they left the status quo in place and refrained from making a custody determination, in that they declined to take R.M.G. away from Gallardo against his will. The Border Patrol agents cannot be meaningfully said to have “detained” or “deported” R.M.G., because it was Gallardo, and not the Border Patrol, who decided that the baby should go with him to Mexico.

Though I might be missing something, this sounds ridiculous. The agents let the father retain control of the child and take her out of the country. The mother's claim was known, including (at least for the sake of this lawsuit, see Judge Stewart's dissent) the American citizenship of the child. But, no no, they didn't "make a custody determination" at all; they just "left the status quo in place" (the status quo was that the father had custody -- legal control -- over the child!*). As to who "deported" her, it is not like the father wanted to leave the country and was allowed to take the child along. He was deported!

And, since the mother surely had a claim over the child (what court would not give her custody in this situation?!), by "allowing" him to take the child, and not giving her even a day to get a court order, what did they do if not "detain" the child, except in a merely sophistry type sense?! But, the mentality of certain judicial ideologies leads to this sort of thing. Government agents get discretion and attempts to limit it to some reasonable degree, or penalize the government for abuse of said discretion, leads to this sort of refusal to obtain judicial relief. Legal technicalities (and family values) are sometimes important, sometimes not.

To cite one of the headlines in the first story: "Terror en familias hispanas."

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* Some might argue I'm using "custody" in a somewhat colloquial sense here, but that is something of the point -- legal principle at times resists ultra-technical application of legal terms, which in practice rarely turn out to be as clear-cut in practice. And, some family law expert probably can use "custody" quite technically and apply it in this situation.

"They got their mushroom."

Charming stat -- the Mets are leading in the category of giving up grand slams (see today) but has not yet hit one. They had about three shots in a recent blowout, but still couldn't do it. When it was 24-0, did Eli's dad tell Peyton "just let him score once" or what? Mushrooms.

Week 2

More good games, including the Jets actually deciding to play offense. There were two successful onside kicks to go for the tie in the last possession, both teams ultimately failed. The Detroit effort was lame: lots of time, only needed three to tie, but four incomplete passes.

Wisdom of Bucky

Time to Rally the Troops

Let me be clear: the idea of an inevitable Republican landslide in November is not a foregone conclusion. It’s a self-perpetuating bit of wishful thinking that’s gaining currency through the force of being recycled ad nauseam by overzealous pundits.

-- Charles Blow