Billie Coble Executed

With twenty-five executions last year (dollar and a dream ...), it is probably quite possible for anti-death penalty justices (they can spread it around) cover each one this year. A three-time killer (a family matter, but one was a police officer) might not seem much trouble legally or otherwise. The system is the problem, but even this specifically can be. He was on death row for thirty years: that alone is a problem Justice Breyer et. al. covered. And, there might be due process issues. Final appeal rejected without comment and he was executed.

SCOTUS Watch

A few oral arguments, including a potential big one regarding religious displays regarding a "peace cross" that hopefully will be decided narrowly though not likely to go the humanist's way. Roberts again the swing vote in a limited win (death penalty case) for the liberals. Less close defendant win with Thomas/Gorsuch (but not Alito) adding a bit in the dissent questioning the constitutional right to state provided lawyers on originalist grounds. Win for international organizations with Breyer with a solo dissent that is most interesting regarding his purpose based approach that questions textual analysis of the majority.

A Day in the Life of Majority Rule

The Michael Cohen testimony was not likely to be earth shattering, but hearings need not be to be useful, including to air things out to the general public who are not political nerds and get a sense of each side. Plus, some useful stuff will come out, including bringing things back front and center. It's a race, not a sprint. Plus, AOC et. al. had great moments.

Meanwhile, a background gun check bill that passed the House, basically on a party line vote. Using a procedural maneuver [people upset about that, but total majority control is not a good approach either], Republicans got a limited win by getting a tack-on that requires the federal background check database to notify Immigration and Customs Enforcement (ICE) when an undocumented immigrant tries to buy a gun. Swing district Dems went along.

Precedent suggests it will be blocked in the Senate, but the facts are on the record for when sanity rules there too.

ETA: Remember too that Cohen also testified behind closed doors.

Oscars and Supreme Court Watch

Didn't see the beginning, but the second half of The Oscars was pretty good and guess not having a host isn't a big deal. (Maybe, just have some representative introduce it briefly?) with many nice black, women, gay/lesbian friendly moments. And, then they had to ruin it by ending with Green Book winning? Oh well. Meanwhile, the Supreme Court in a brief per curiam (Sotomayor concurring without opinion) says you can't count a judge's vote after they died, even if the panel "decided" beforehand. Seems right though maybe merited a bit more contemplation. Also, district court held all male draft unconstitutional. RBG smiles.

ETA: I saw Juliet, Naked (no nudity) on demand and liked it. Rose Byrne very good. [To add two more.] Saw I am Not Your Negro on DVD; well, half of it -- it seemed a bit rambling and half of it gave a good feel of the general tenor. Good. Saw the lead of the foreign film Two Lives in other films (such as Nowhere in Africa) and that too was a half movie watch. Have less patience these days. Half was good; skipped to ending tbh. Felt a tad obligatory.

The Bell Jar

The fiction of Mary Boykin Chestnut, of Civil War diary fame, was hard going so I put it aside. Did finish The Bell Jar, using the version shown here (with "PS" author background material). Overall, I liked it. Smooth reading, some insights of the young characters' struggles etc. A bit sudden fall into madness after she comes home and the latter part of her confinement (when she was on the way to recovery) might have been fleshed out better. But, it's a deserved classic. Couldn't get into Sylvia movie, which I watched when it came out.

And Also: Mets Spring Training started today. Oscars tomorrow; haven't been interested in them for a few years. I used to be a regular viewer but also watch movies in theaters much less too. The Favourite being one I actually saw.

Excessive Fines Clause Incorporated (Explicitly)

Perhaps because they already did in dicta (if that; McDonald v. Chicago however ignored the case), the Supreme Court thought it obvious that the Excessive Fine Clause should be incorporated, doing so in an opinion under ten pages. The opinion is being cited as important given it included within its ambit civil asset forfeitures, but that too has been cited in the past. This was noted in the opinion to cite how weak the state's claim was in trying to argue they don't count. RBG wrote the opinion and seems to be doing well. But, maybe so. Also, not sure seizure of his land rover was that excessive for use for a felony. Borderline. Yes, it is 4x (but is that too much?) the criminal penalty, but the usage seems to be notable.

Also: What's left? Third Amendment (Griswold dicta, never pops up, but bet it can someday), grand jury (many states don't use them; doubtful), unanimous jury trials (one state left; quite possible, cited as a joker in opinion) and Seventh Amendment (civil trials; also broad reach).

Update: And, does it matter if we use the Privileges or Immunities Clause? Depends on how limiting it turns out to be. Justice Gorsuch already restrained the feds regarding immigrants in part by concerns about vagueness. Some limits on power will protect liberty of non-citizens. Also, including by originalist arguments, equal protection concerns should apply to them, including as a matter of due process. If this sounds substantive, it shows sneering at "substantive due process" is you know a bit stupid. Selective application likely.

SCOTUS Watch

The Supreme Court decided to take that census question case after all, the clock on writing the forms running out, even though a lower court opinion could have mooted the question. Unclear how broad the opinion will be. The justices, via per curiam, attacked a lower court for not following their precedent. Roberts, unlike in the abortion case, expressly said he was joining for that reason. Kavanaugh (unlike the other three) silently went along. Thomas flagged he didn't like NYT v. Sullivan, at least as applied to public figures like a Cosby accuser. Originalism aside, he might have a point. Clean Water Act case taken.

And Also: Sanders announced. Liz Warren fills his role, minus additional baggage.

Note: My comment is limited to the reach of current law to public figures. If strict defamation rules for people like a Cosby accuser are somewhat weaker, it very well might be acceptable. Public officials are of a different caliber. Maybe not, but worth thinking about.

Patriots and Cosmopolitans: Hidden Histories of American Law

I enjoyed his Lincoln’s Code: The Laws of War in American History and after comments by him was referenced on a blog, I found this earlier book. It covers James Wilson, South Carolina freeman Elias Hill, feminist/pacifist Crystal Eastman (skimping her later years), professor Roscoe Pound and lawyer Melvin Belli. It is a bit too academic, but that is less of an issue in the second and fourth sections in particular. As a whole, interesting vignettes.

And Also: Eric Segall's Originalism as Faith is a case where reading his blog stuff/articles basically give you a feel of the topic. And, a summary (like a few pages why such and such result isn't really originalism) is somewhat underwhelming. Originalism ultimately causes my eyes to glaze over -- it is like counting angels on the head of a pin and a lot of self-righteousness [which is one of the most annoying aspects of it] on a foundation of sand.

Satanic Temple Religious Liberty Argument vs. Abortion Law Fails

And Also: Somewhat related, perhaps, is the whole Rep. Ilhan Omar kerchuffle based on a tweet where she said AIPAC (the Jewish, or rather some form of them, lobbyist group) is "all about the Benjamins." She respectfully apologized, which as this Republican noted, basically settles the matter.

He is right specifically on how sometimes a comment is going to cross the line, especially one said on the fly.  We say loads of things; one's overall record should be our guide. She brings a good perspective to Congress and will get pushback for saying things seen as unpleasant. And, unfairly (hey, Trump!) she will get some special attention, so to continue to be a respected voice, will have to take a bit more care. She can handle it.

In addition to the 72-hour waiting period, Missouri’s informed consent law requires a woman to review a pamphlet about fetal development, including language that says life begins at conception. The woman must also be offered the chance to see an ultrasound and hear the baby’s heartbeat.

Not surprisingly, the Missouri Supreme Court rejected (the quote is from the article) a challenge by a member of the Satanic Temple to the state's informed consent abortion law. Rejecting both an Establishment Clause and a religious freedom challenge.

"Satanic" here is sort of misleading branding since the mission "is to encourage benevolence and empathy among all people, reject tyrannical authority, advocate practical common sense and justice, and be directed by the human conscience to undertake noble pursuits guided by the individual will." This probably is the point though I think there is some serious content behind their ironic name (less so Pastafarians or something).  This is also the case, as I noted in the past, for "Universal Life" ministers that can be in effect self-ordained online and seen as something of a joke but later are popular wedding officiants as seen by a range of NYT wedding announcements as expressions of individual beliefs.

Anyway, the underling religious arguments are valid and especially with stronger RFRA claims (that go beyond what the Free Exercise Clause requires), there is a place for them.  Harris v. McRae rejected specific Establishment Clause claims, not all of them, and didn't even reach the Free Exercise Clause for standing purposes. The dissent ignored the issue though Justice Stevens later flagged the first issue in various opinions. Also, in Planned Parenthood v. Casey, the fact abortion is basically a matter of conscience was also recognized. The claims here might be seen as "hey if Hobby Lobby gets protections, why not me" tit for tat that just underline the problems with the doctrine, but there is something to it.

The basic point is that the choices involved in abortion are deep down matters of personal conscience that quite often don't just have a by chance overlap with religious beliefs. Take the "human being" and "life at conception" message that is part of the case at hand. These are not scientifically neutral statements of fact or something.  As expressed here, maybe the religious liberty claim is too weak (though if the state requires materials with it, the opinion is weak arguing it isn't really the state's message as such). But, it is still bad policy to require such divisive moral tinged messages, the words for many not applicable to fertilized eggs.

The overall question of abortion overall is even more freighted with religious significance and burdening the rights of some here is not only a free exercise problem.  Again, maybe this specific case (that avoided the earlier standing issue because the woman wishing to choose made the claim, not some organization deemed not to have standing) is weak. For instance, just providing an option of an ultrasound (as compared to a law that requires it) is arguably protective of religious liberty.  It still might be a problem because it is burdensome to clinics on other grounds.

Finally, as a state case, federal doctrine is not all that is at stake. The three day waiting period in general very well might be unduly burdensome, especially given specific facts, even under Planned Parenthood v. Casey. And, Justice Stevens' concurrence there specifically pointed out the problem and there the law was for one third as long:

The mandatory delay thus appears to rest on outmoded and unacceptable assumptions about the decisionmaking capacity of women... A woman who has, in the privacy of her thoughts and conscience, weighed the options and made her decision cannot be forced to reconsider all, simply because the State believes she has come to the wrong conclusion.

Note again how "conscience" along with privacy/liberty and equal protection concerns are raised in this context. The line between "conscience" and "religion" is often thin,* especially when a person specifically raises it in a religious context such as here.  The state court rejected the claim, however, because the three day waiting period did not have the purpose or alleged effect of interfering with her religious liberty.  If someone had to wait three days to choose what religion to be baptized in, such an argument might be a tad weaker. Again, I think the argument  has merit, but the best argument is against such a long waiting period in general. Still, WHY it is a problem will have a religious component.

A truly unduly burdensome abortion regulation very well in somewhat borderline cases can be more so if the person also has a religious liberty claim. This also would arise if for some reason state constitutional claims specifically are being made. Finally, however, the argument is likely best made when stronger ideologically based materials are at issue. The Supreme Court treating crisis pregnancy clinics differently here need to infect lower courts.  Nonetheless, like back in the day how religious liberty was a factor in such things as integrated marriage, religion is part of the issue here. And, it is fine -- including to show how an evenhanded application of RFRA would work -- to push the issue.

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* We often hear of "freedom of conscience" though traditionally that was assumed to have religious content. There is some concern that "conscience" is too open-ended, especially for certain types of exemptions. But, that often is a matter of the exemptions themselves (see, e.g., for vaccines). 

Equal Respect v. Being an Asshole

Justice Kagan in her dissent involving town meeting invocations cited their legitimate reach: “speak of the depths of [one’s] life, of the source of [one’s] being, of [one’s] ultimate concern, of what [one] take[s] seriously without any reservation.”

Various governmental bodies include non-theistic invocations, but some people want to be assholes about it. Pure separation of church and state in practice won't happen for various reasons, but equal respect at least should be our goal. This works both ways -- have seen some liberals scornful of "religion" and I understand given how it is weaponized to harm (a few simply are skeptics). But, allies come in all shapes and equal respect should be our rule.

Lincoln's Birthday

Great speech with continual relevance. Note he was a bit cute -- the Republican platform was a threat to the South/slavery -- he wasn't some professor giving a nuanced take here. But, the in depth discussion in a day when the Founding were still in direct memory is still powerful and raises themes that still arise. A passionate fact-based attack.

Amy 2020

Harris excitement and Warren had passion with an economic focused message; Klobuchar was more of a sedate Midwest nice with possibility of just doing her job and being the President for everyone (Middle America?). The snow was a nice touch. Her laundry list of the usual proposals didn't do much for me. Earlier there was some reporting of her being an asshole boss which is valid though I'd like to hear about the others in comparison. Usual concern.

When Christians Were Jews: The First Generation

I noticed Lent starts a bit late this year, but read this book now anyway. Not going to respond directly to the review except to say that yes it could have addressed critics a bit more but did address matters (and said so) before in more detail(e.g., full books on Jesus and Paul). In that respect, it wasn't comprehensive or fully satisifying, but was overall an interesting read. Bart Ehrman, who has also wrote on the basic topics, had a supportive blurb.

SCOTUS Watch: Late Night Edition

Chief Justice Roberts (the subject of an upcoming biography, which might be subtitled "Part 1")  is often seen as a crafty type concerned about the long game and the overall integrity of the Supreme Court.  The two late night (after 9PM, admittedly not that late for the last minute death penalty order) actions might be seen as a mixed bag in that respect.

As tends to be the case, the capital case of Domineque Ray (spoiler alert: he was executed last night) had various due process concerns. But, the matter at hand was a rather novel one -- could he have an imam present at his side instead of the Christian minister provided by the state. To be clear, it is not about only disallowing Muslim religious personnel.  And, some years ago, the Supreme Court in Holt v. Hobbs protecting Muslim prisoners who wished to wear short beards for religious reasons.  So, this seems like a fairly easy way for the Supreme Court to show they are consistent regarding religious liberty claims, instead of such reactions.  Especially after the travel ban ruling.

The not overly liberal Eleventh Circuit basically so agreed in a strong opinion, holding that the result here favors one religion over another.  It is unclear why the state could not tweak its process to carry out the prisoner's wishes.  Thus, Justice Kagan (who rarely dissents in these late execution appeals) ala her Town of Greece v. Galloway dissent, provided an eloquent call for religious liberty, evenly applied.  The majority (and often responses to these orders are merely "denied" or "we dissent") merely noted that the challenge was too late.  Kagan dealt with that claim as well.

This case suggests the difficulties with usage of state religious officials, the specifics of this state's practices perhaps novel. This was also an issue, to again return to the legislative prayer conext, in the 1980s case of Marsh v. Chambers. Justice Stevens specifically noted that usage of a single chaplain of a particular faith for so long had a tendency to favor one religion in practice. Kagan's dissent in the later case was similarly moderate, accepting usage of legislative prayer generally, but critiquing the nature of the practice at hand. Religion is touchy and in practice nuance is key. Bending over backwards should not just occur when birth control is involved.  The result is religious favoritism.

[It perhaps can be the case that the justices missed the religious liberty claim because all they saw was a late appeal in a death penalty case. They did protect prisoners in general, but this was someone due to die in a few weeks. Maybe.  But, this didn't impress many who were appalled, including some who are conservative in general.  Finally, compare the majority here with Justice Alito and Thomas flagging the religious and moral concerns of a constitutional nature in allowing non-lethal weapons. Which I respected; I even sent Alito a letter thanking him.] 

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The case getting more attention involved handling an appeal upholding a restrictive abortion law out of Louisiana that seemed blatantly in conflict with a 5-3 Supreme Court precedent from a few years ago. The lower court en banc (with a strong dissent) argued there were differences. How much that really matters is dubious but it flagged a quite possible means of not totally overturning Roe (Casey) but severely weakening it in practice.  When a state might very well have one clinic, a "fetal heartbeat" law is not the only way to stop abortion rights in practice. There is a difference here, to be clear, but rights are not an all or nothing affair either. The test is after all "undue burden."

Since the membership of the Court has now changed, some are basically merely waiting for Roe to be gone. I think the rhetoric is a tad overblown, admitting that I can't get pregnant or anything. Again, we are talking about many laws that severely burden women here.  This drip by drip approach has occurred since the 1970s.  This case to me seemed like a landmine since it offered a chance for five justices to provide, as the law of the land, a weaker test (cushioned in so-called neutral fact based language or not). Not taking the case would send a signal, but not change the law.  To me, this might be a best of a bad situation choice.

What we got last night was in effect a "to be continued," which on the abortion rights side per one account was "not nothing" but a limited win at best. The majority didn't even provide a brief comment this time so the reasoning is basically by implication.  Basically, Roberts (and the liberals) appear to be saying that the law is dubious enough per the earlier precedent that it should not go into effect while the case is pending. The rule tends to be that this is done when there is a strong case of reversal, at least when the alternative would be burdensome to those affected.

It is rather risky, however, to assume that Chief Roberts would serve as the fifth vote to strike down the law. As referenced here, there is an argument that the state is more protective of the rights of doctors and abortion providers than Texas was, an argument that long term would seem to be a good "out" for Roberts.  A sort of "minimalist" approach.  The article also suggests how much respect we should give to Kavanaugh's "I'm just being reasonable here" dissent.  If the law is unconstitutional, delaying striking it down, providing more chances for burdens because maybe the state will play nice, is basically the whole thing the original ruling meant to avoid. The dissent, however, very well might foreshadow the eventual approach on the merits.

The result sends a message to other judges that similar laws are at least dubious though again it has no formal legal meaning in that respect. It also shows that Roberts does not want to speed up things in regards to abortion rights. We will have another partisan gerrymandering case soon, in part since the Supreme Court has less ability to avoid certain voting rights cases. They took a Second Amendment case for full review after around a decade.  A religious display case is coming. Hot button issues now that we have the start of a Trump Court will come. But, like driving on urban streets, Roberts rather it go a bit slow.

So, unlike the first case, this is a "to be continued."

Baseball Approaches

Moving past Super Bowl travesties, pitchers/catchers are due to report soon and we are about two weeks from televised Spring Training Mets games. Also, there is talk of a lot of changes including (whenever it comes) ending the DH in the NL. Ugh. There is also talk of each pitcher needing to face at least three batters. What of the LOOGY? Changes don't really sound that positive. Ending defensive shifts? Eh. Meanwhile, The Bookshop was a tad too precious quirky for me but nice lead and lack of a deus ex machina is honest enough.

And Also: Book pile reduced a bit by a couple more not doing it. More to come. Skimming long RBG biography; doesn't seem worth a full read though has some interesting tidbits.

Black History Month

Short month, so the news started early. Cory Booker declared his candidacy for POTUS, his specialty criminal justice, being a vegan and enthusiasm. Problems would include some connections to money and education ... and coming off as a bit too much of a showboat. Meanwhile, after remarks related to a proposed abortion bill, the governor of Virginia (D) got in trouble for a racist medical school yearbook from the 1980s. I'm wary about such ancient history (not attempted rape either) forcing him out though his attempts to explain it away today did him no favors. Plus, guess in this day and age, the taint means he has to go.

And Also: No Human is Illegal is about an immigration lawyer in the age of Trump.

Update: The governor just might hold on while someone else third in line mentioned (handling the announcement better) that he put on blackface himself back in college/1980. The lieutenant governor is accused of a sexual assault that happened fifteen years ago and of course came out AFTER his election in 2017. The responses (some at least) are starting to get a bit more reserved, wary about requiring people to resign (over focus on elections as deciders). My immediate wariness is starting to seem a good call. But, let's wait and see.

First Execution of 2019

(ORDER LIST: 586 U.S.) WEDNESDAY, JANUARY 30, 2019 CERTIORARI DENIED 18-6848 JENNINGS, ROBERT M. V. TEXAS (18A540) The application for stay of execution of sentence of death presented to Justice Alito and by him referred to the Court is denied. The petition for a writ of certiorari is denied.

As expected, two pro forma orders were posted last night at the SCOTUS website to smooth the way for the execution of a cop killer.  Like that old story, he is sort of like a lottery winner, one of a few people among the many murderers (including some who committed very heinous crimes) scheduled to be executed this year. To take a for instance, no one was executed for over five years in Mississippi, not exactly a liberal state. 

From what I can tell, there were various procedural concerns, but what stands out for me is the thirty year lag period.  Justice Breyer, such as in his dissent when he flagged the death penalty itself as probably unconstitutional, has repeatedly cited this as a specific problem. Justice Stevens and the courts of various nations also did so. I think it would be useful if a justice dissented in each case myself to touch upon the specific person being executed, but Breyer does not do this.  He has brought it up repeatedly though to point out the problems. Multiple reasons: delay of justice, harsh treatment on death row, trauma of such an open-ended extended limbo and the question of simple justice of executing someone for something they did so long ago.

(People are cynical about such claims since they largely blame the defendants themselves for extended appeals. As people have noted, this is a bit too glib. California has a large death row but only something like thirteen people has been executed in large part since there is no will from the top to help things out. The extended appeals repeatedly address real problems with the system. Realistically, however, it is hard to imagine due process alone is why it takes decades to execute someone.)

There are a few cases of crimes in prison, but it seems to me a bit dubious to not just let these people continue to be in prison as they have been for decades. And, thirty years? I think that is long enough even for killing a police officer.  It would not surprise me if there was something wrong with his case specifically that made executing him a due process problem. But, I'll grant that away. I also question the whole "worse of the worst" test here, comparing it to some of the real heinous examples. Again. I'll rest on principle here. This includes the fact a system is in place, not some cases that we might be willing to accept.

One criminal justice expert made it known that he thought too much emphasis was put on the death penalty given so many other people were being harmed in our criminal justice system. Plus, he thought in the worst cases that it was basically justified, though he would have it be a federal prosecution since they had more resources.  (I stopped going to the person's blog since he was in effect a Trump apologist, belittling how bad he was.) I question how bad the situation is -- there tends to be overlap between capital and non-capital crimes here. See, e.g., the treatment of those prosecuted as minors.

Plus, simply put, loss of life itself will matter more. The concern is fair though I'm not sure how bad the situation truly is -- e.g., the Supreme Court has taken numerous non-capital cases over the last few years. Other than debate along the edges, what has it really done in the capital punishment area?  Some raised the possibility of the end of capital punishment. I do not see it. There continues to be a desire for at least the possibility in special cases.  Two justices were willing to go further. I question if a Justice Garland would have went along. OTOH, he might have accepted more limits on the system in place. Well, that ship has sailed.

Next execution scheduled in February.

I Do Taxes

I did my and someone else's taxes recently.

We both have easy times of it but one other person I do it for is much more complicated (one thing involving pensions and such is truly confusing, the website giving you some sort of chart to fill out).  New York basically requires people to e-file except in certain circumstances though like declaring sales taxes, they don't really enforce it to my knowledge. And, for many, it won't be free using most services. TurboTax to me is pretty good.

A blog post* and the resulting comments led me to opine:

I just did my taxes as well as someone else's so this whole conversation is somewhat topical for me personally. It is striking how many different things pop up in the tax code, in my case three levels of government. Government itself is basically about taxes on some level -- the parliament at core about the power of the purse.

Some years ago, a progressive blog or something reminded us that rich people are rich on the back of us all. It's akin to someone I know upset about needing to pay for local services when he isn't living there. As if the roads etc. do not benefit him. Or, the idea people are paying for health insurance for "doing nothing." Patently absurd.

This talk about democracy underlines, as the House debates the "for the people" voting legislation (see Rick Hasen's piece in Slate), that we are again at a moment essential for the fight of democracy, comparable to the fight for voting rights of blacks and women. The power the rich have these days, ever more so given economic policy over the last few decades, is an important part of this. The discontent that helped elect Trump is real. The problem is to address it without further enriching the plutocracy.

What more attractive person ala Marty Ginsburg will play be in the movie?

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* Dorf on Law is an interesting blog with contributors with very different styles. The person here favors long, rather boring if erudite posts that often focus on economic issues. I like the style of Michael Dorf's posts the best. His wife tends to have more academic posts though her passion shines thru them as well, particularly about gender and animal issues. Eric Segall also comes off as more argumentative and less academic though when he goes into "academic mode," you remember he is a law professor too. 

The commenters are mixed too. One who used to occasionally provide argumentative conservative comments with a bit of venom is now in the Trump Administration. One of at least two I have engaged with online.

Constitutional Duty Without Courts

Indeed, the very fact that an official may have broad discretion, discretion free from judicial scrutiny, makes it all the more imperative for him or her to adhere to the Constitution and to its meaning and its promise.

Justice Kennedy* saying this in his concurrence to Trump v. Hawaii (the travel ban case) is rightly sneered at but I hold to my remarks posted in response to a blog post. Ditto the reply, which seems to skip over the part where I'm not defending Kennedy and in fact added with emphasis that he was a bad messenger.  Why?  Well, a key part is that the message works a lot better when you do the job in clear cases.  I repeat:

Kennedy's concurrence matters to executive officials who give a shit.

The sanity in exile brigade -- see various former government officials on Twitter -- repeatedly cite how back in the day (pre-Trump Administration) some relevant agency had rules they followed that provided some limits and fair practices. Sham prevention.

The Constitution tends to be under-enforced especially since stuff isn't reviewed in the courts, it takes a long time when it is or some presumption of constitutionality often hides illicit behavior. Kennedy's preaching there is relevant.

But, judges also have a duty to deal with clear error.  Failed here.

Kennedy over the years has been pretentious in his civics lecturing, but the response upset about that ... was he upset when Brennan did it?  Judges repeatedly use separate opinions in particular to send messages.  "Talk is cheap."  Yeah.  Again, they "failed here."  Preaching about how officials have an independent responsibility that is and should be honored even when judges have a hands off policy works better when they do their jobs. It's a presumption of constitutionality.  It's a quid pro quo, so to speak. The concurrence itself leaves open further review of specific cases.

People inclined to follow his message know it already. Eh. I have repeatedly seen people focus on the courts alone to protect our rights as if a loss in court ends the matter, the rest just policy.  And, these remarks are partially meant for the general public in some fashion.  No one really is listening? Fine. Don't quote opinions of judges you like either then.

Anyway, it isn't black/white.  It is a continual complicated process and in our system there are loads of interrelated parts involved. The basic presumption of constitutionality principle entrusts democracy as a whole with its various parts (toss in the media, private organizations and so on) to protect our liberty as a whole.  We trust the responsibility of public personnell here, something to think about (over drinking beer or how you want to say "fu" to the man) at election time. The matter is especially such in special areas like presidential control of foreign policy or agencies.  Special red flags like animus [a Kennedy special] and violation of normal process are in place. And, other things, see various arguments over judicial review.

The core problem here is that TRUMP is the person ultimately involved here. Just look at the very caption.  That preaching is only so useful here, even if ultimately he isn't the one carrying out this policy. But, as the blog post referenced shows, that hasn't gone that well either.  It's like telling someone to be calm when they are yelling "fire" when the room is burning.

There is some truth there though.  This includes in local legislatures while the Supreme Court handles various constitutional things somewhat badly.

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* With Kavanaugh and all, one can imagine the general feeling about Kennedy in general at a liberal leaning blog, thus the overcompensation that leads to the unpleasant desire to defend the guy.  This is especially seen when people take potshots at his gay/lesbian jurisprudence, down to being mad that same sex marriage wasn't applied to the country at large quick enough and/or with a broad enough opinion. These types would have wanted Loving v. Virginia to be decided in the mid-1950s. 

Kamala Harris Has Her Formal Announcement Rally

I think Liz Warren is a better version of Bernie Sanders, but is too old, less appealing as a candidate (optics etc., which is cosmetic, I know, but her political savvy is also rougher) and best spent where she is. The main concern about Harris is some aspects of her prosecution record are dubious. Don't think that will be enough to doom her. Some will even like it as an example of her realistic playing within the system. Think she's the frontrunner with Gillibrand as an alternative. In fact, curious where Gillibrand will fit since she overlaps with Harris in various respects though she does have the most national experience at this point.

Also: AFC wins again in Pro Bowl. Not much of a game.

SCOTUS Watch

The big news is taking a 2A case for full review after nearly a decade [bound to happen, details up in the air] and letting Trump's trans military ban be applied during litigation. Kavanaugh is likely key here, both not to be decided this term either. The idea is this is a "no drama" term. They will be back mid-February though we might get an order regarding the first execution planned for this year. Red flag for me is the thirty year lag time.

ETA: The Court also set February and March calendars oral argument dates and (eventually) removed an advisory on their rarely used media page after taking the census case off.

"RBG is Kinda Hot ..."

Two people who came in uninitiated (sort of like me with "The Favourite") really liked this film but being so familiar and concerned with her current well being, I was more wary. [An example: given RBG's deep study of Swedish law, her husband's monologue at that party is a tad off.] Sorta was right to be on some level, especially since RBG is just too emotional here. But, on the whole, the film is pretty good and raises some interesting things including on the changing nature of the law. BTW, the opinion was handed down after Reed v. Reed.

ETA: Remember this "gotcha"? The reference is to the original Constitution and it is noted at one point that equal protection as applied to feds was handled by due process. But, to be honest, the line still open to confusion. The final court scene also is a bit much, from her early choking and final speech. Pure Lifetime.

2019 Baseball Hall of Fame (Two Yanks, One RIP and One DH)

I'm a Mets fan these days but props to two Yankees just voted into the Baseball Hall of Fame (not cheating should matter, so support continuing to keep certain people out): Mariano Rivera and Mike Mussina. Mussina (crossword fan) was one of those fairly few long contracts that turned out well and his quiet professionalism is a good model for us all.

Notable Dates ...

There is the ... "has that asshole really been here/only here two years" (1/20), MLK's Birthday (observed) (Robert E. Lee two places) [Kamala Harris announces] and Roe v. Wade day (1/22). Abortion is well trodden subject on this blog; this short article shows one theme (SCOTUS version): the unjust nature of regulations. I like Harris, Gilliband and Klobuchar best now.

ETA: New York passes the Reproductive Health Act.

Another Super Bowl To Skip ...

Didn't really care if the Rams or Saints won but the Rams winning after a late egregious blown call kinda is bad karma. The Pats winning in OT after KC tied it with only a little over a half minute to play with at the end of regulation to do so (won flip in OT, KC never got ball) added insult to injury. But, the Pats in the playoffs vs. Andy Reid ... stacked against ya.

Some Books

The Internet and the library reserve system only increases my ability to find out about and get books while having less time to read them (imagine the 1990s without hours online daily). I received A History of the World in 21 Women, however, just stopping by the library (to get a DVD, but now NYPL only provide them in "hub" libraries). Pretty interesting, if incomplete (most after 1800). This is also how I got The Dutch Wife, a good fictional account of a political prisoner during WWII who became a camp prostitute (she's Dutch and "Dutch wife" is slang for prostitute) as well as a 1970s man suffering that fate (without the prostitution) in Argentina. More to come -- have a pile and more in reserve.

And Also: The War Before the War: Fugitive Slaves and the Struggle for America’s Soul from the Revolution to the Civil War is a somewhat rambling affair that was really about slavery as a whole (which is fine) while being a good brisk read that gives an overall feel of the times. A basic thing to remember is that even if you thought the Fugitive Slave Clause was necessary, with "I really hate slavery, really" comments, it left open some protections, especially of FREE black PERSONS. The response was often a telling treatment of blacks as non-persons.

Religious Freedom Day

Today is Religious Freedom Day and for many that means protecting the rights of various religious believers. This is important and fundamental, but it can be taken too far, resulting in religious favoritism and harm to third parties. As the first link notes, the date is telling: it honors a law passed to protect separation of church and state. "Religious freedom" has various shades. It should cover us all in the process.

Alara Leaves "The Orville" With Her Lipstick Intact

Well, per the most recent episode -- another very good character rich plot from the new season -- she is leaving. Sounds like acting scheduling conflicts. Change is realistic if too bad here since she's a favorite of mine. Due to be replaced by another woman from her planet.

C.B. Strike: The Series [First Three Books]

I enjoyed the books though not being a Harry Potter fan and the t.v. adaption had its good points, especially the actress portraying Robin. Strike had somewhat less of an edge (and was more attractive) than in the book and the episodes as a whole seemed to be missing something. There were many good moments though the last book in particular seemed a bit too compressed here. DVD had three "making of" vignettes, one for each. Worthwhile.

Also: Others are much less gung ho, noting his team's record etc., but here's the argument that the Jets made a good choice for head coach.

New Year, Same Trump ... Will Drips Ever Crack Ceiling?!

Illegitimate "justice" writes a bland first opinion among other SCOTUS actions, released the day of Trump's b.s. speech regarding the wall and the continual shutdown which hurts our country day by day. The same day we learned about big news regarding Trump's campaign manager colluding with the Russians with campaign data used to interfere with our elections. More reason we need to impeach Trump; the alternative is de facto authorization of his actions, making it just politics. Understand the prudential arguments, but opinion holds.

Odds and Ends

The new Cormoran Strike is even longer and as one review notes, tbh, there is "filler" but overall it is an enjoyable read. Perhaps, the fact six hundred plus pages (with a long "talking killer" chapter to explain things) was somewhat quick reading is telling, but there are pleasures to comfort reading too. Giants (Dallas final drive/two point to avoid OT) and Jets (basically no offense; Pats get a bye after Houston choked week before) ended in fairly typical fashion. The Jets QB seems promising though. Browns went from 0 to 7.5 wins. The season premiere of The Orville was cute -- character episode. 2019 is about here and we will soon have the 2020 presidential race. Wish the asshole was gone now. Onward.

Happy Holidays! (Shutdown Edition)

"Federal Panel Of Judges Dismisses All 83 Ethics Complaints Against Brett Kavanaugh"

It is expected and appropriate under current law that the ethical inquiry of Kavanaugh was held to be moot now that he is on the Supreme Court. The process is for lower court judges so there was an overall doomed to fail nature to the affair. But, the order says they are serious allegations (lying to Congress etc. are) and that a copy of the order should be sent to the appropriate investigatory parties, namely congressional committees. So, ball in your court, House Judiciary Committee. There is a certain wariness there, but this isn't over.

ETA: Note that is the title of a NPR article and is misleading in that some might think they did it on substantive as compared to procedural grounds.

Jacqueline Caal, Seven, Statistic (and Symbol)

The death of seven year old Jacqueline Caal is a chance to put out front and center the horrible nature of our border party. "Horrible" is probably too bland. The statistic cited (further backstory added) that over seven thousand people died 1998-2017 is horrendous. But, not enough for some, so Trump amped it up. Some judge those who lived in the past harshly for supporting various bad things. A bit of humility might be warranted.

Supreme Court Watch

The move to have a boring first sex offender "justice" (and what an ass Collins is) term continues. Latest death penalty appeal had no dissent (Sotomayor already flagged the problem with lethal injection protocols recently). The case involved a murder during a burglary. Justice would have been to continue detaining him as was done for over twenty years. This does not seem like a "worse of the worst" type of murder, to cite a basic standard.

Double Jeopardy

[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb..."

While the Supreme Court made clear that it will clean things up regarding the incorporation of the Fines Clause, it is somewhat surprisingly unlikely to overrule the "separate sovereigns" rule regarding double jeopardy. Some flagged this case (and Kavanaugh's potential fifth vote) during the confirmation battle of the sex offender justice (so-called).  But, it is rather unclear if that was a major concern.

Plus, when the issue was Puerto Rico (part of the federal government, so the rule doesn't apply regarding federal/commonwealth prosecutions), RBG flagged her interest in ending it.  Before it seemed like backstop to Trump pardons (someone like Manafort could be prosecuted for state crimes), many of the same people upset might have agreed the rule was dubious. It seems like trick to be able to subject a person twice for the same offense. That is, until there is a push for the feds to prosecute some civil rights crime after a state acquittal (e.g., the Trayvon Martin case).

But, the justices went full bore (Thomas voiced some opposition to the rule too but doesn't ask questions) on the defendant's lawyer with the exception of Ginsburg and later on Gorsuch.  During the Fines argument, Gorsuch sanctimoniously spoke of how most of the incorporation cases were settled back in the 1940s. No.  Other than the First Amendment, the 1960s (e.g., the right to a lawyer) had quite a few.  Here he found it strange the federalism resulted in two bites of the apple in a way that arguably burdened liberty.  When else does that occur?  The government provided examples such as taxes. Overall, as noted by of all people Kagan, the rule furthers federalism, which ultimately involves state power.

It looks there is a clear majority for the idea -- to quote a 1950s pre-incorporation (yes, the 1950s) -- case upholding the dual sovereignty rule that "Precedent, experience, and reason alike support the conclusion" warrants protecting it.  Precedent was cited by Kagan and Breyer as well as newbie Kavanaugh, who cited his strong barrier for changing it.  He also -- against an unwise one-note originalist defense -- noted that stare decisis is an originalist principle.  Yes, which underlines the ultimate limited nature of that whole matter. Plus, clearly few justices are that into it.

Conservative Senator Hatch provided an amicus brief in support of ending the rule in part because of the expansion of federal crimes which reach much more areas that traditionally would be state only.  Consider that even the assassination of JFK was to be a state trial.  There was reference to this concern during the oral argument but it is unclear how much ending the rule will matter.  If the same offense (let's say an abuse police action) will result in two possible prosecutions because of what exactly is charged, however, we still seem to be hairplitting, aren't we?  There is a policy to take into consideration a state prosecution, but we still had double prosecutions of various mass shooters, for example.

In that Puerto Rico case, Justice Thomas cited his concern about applying the rule to cases involving tribes (which already are a limited "sovereign" as is) while also joining RBG's wider concerns.  The bigger issue for the justices, aided and abetted by the originalist argument relying on just that issue (ultimately, he was left saying you could treat domestic cases differently, which is true, but he opened the door) was first applying it internationally.  The nation does have to apply the same rule and the prosecution cannot be a sham.  But, that need not occur for problems to arise, especially regarding punishment and prosecutorial resources.  There is not an exception for a richer sovereign to prosecute again because the first one had to deal with limited resources and perhaps a less skillful attempt.

I was sympathetic regarding ending the dual sovereignty rule since it does seem unjust to try a person twice for an offense.  The idea that it isn't the same offense because a different sovereign is involved doesn't quite gel. After listening to the oral argument, didn't really change my mind.  The factors discussed above suggests too that ending the rule can be done in such a way that the best case scenarios for applying it will arise seldom. Rules often have exceptions. This includes the concern about some rush to the courthouse, where a state or the federal government will lose out in the process. Some mechanism should be possible to avoid this or at least temper the concern. And, with states so much more obligated to follow national rules, including as applied to criminal justice, precedent arguably goes another way too. 

Finally, it is unclear how often this sort of thing would come up, especially if one criminal event can already be the subject of multiple prosecutions, which we can assume can be both state and federal in nature. Precedent is an important thing but so is basic justice.  It is unclear to me that the rule, all things considered, flows to the former. 

Happy Hankukah

Hanukkah this year runs from the evenings of the 2nd until tonight. I again provide this past discussion and wish to find a good book that provides the surrounding history for the general reader. Both the immediate Maccabees revolt and developing holiday.

A More Beautiful and Terrible History: The Uses and Misuses of Civil Rights History by Jeanne Theoharis

I added this book to the side panel. Here is a basic outline.

Lessons of History 

(these should be kept in mind when thinking about today's movements as with the myths below)

[1] Myth of Liberal North (also many long term failures including continual segregation)

[2] Long History of Oppression (no easy solution of simply facing up to problem and it being over)

[3] Media Often Not Helping

[4] Myth of the White Moderate  (civil rights movement generally unpopular including MLK up to his death & beyond)

[5] Breadth of Cause -- Desegregation, Criminal Justice, Economic Justice and Global Justice (Vietnam, colonial movements, world peace etc.)

[6] Young and women not respected  

Lessons from the Montgomery Bus Boycott (general lessons)

[1] Perseverance thru failure

[2] Anger leads to action

[3] Sense of possibility = action

[4] Collective organizing

[5] Disruptiveness

[6] Activism = cost/sacrifice including psychological, economic, family and physical (violence)

[7] Mentoring/community of support important

[8] Learning from experience

[9] Multiple ways used against protests ('few bad apples' ... discredit as commies or outside agitators / only for self ... harassment ... legal) and ways to respond

[10] Value of multiple strategies of resistance

RIP Bush41

I added a couple books on the side panel on the Nelson Mandela trial and myths about the Civil Rights movement. It is helpful to remember the complexities of history, which is surely true with the death of the last credible/legitimately elected Republican president. The negatives are true but so are the more positive aspects of his character and public service.

Thanksgiving and Holiday Display Case Season

Ever since, we have set aside this day to give special thanks to God for the many blessings, gifts, and love he has bestowed on us and our country.

Thanksgiving in this country has a specific connection to an event, involving the Pilgrims and so forth, but the basic idea of a harvest festival or celebration has ancient origins. (The specific event is of limited importance in our traditions and when the holiday was set in the mid-19th Century and beyond, it became more of a general family holiday though we can honor the details.)  This includes something that has a component in which we give thanks and at times there is also a special somber component ("as a day of national humiliation and prayer" etc.).

As with the official one cited, they often have a religious component. Early presidential thanksgiving proclamations provided a chance for an official statement with a religious character within the limits of our secular government.  There were dissents -- Thomas Jefferson felt that such a move was a violation of the First and Tenth (since it was a power left to the states) Amendments.  At the very least, it would seem to me that these things should be inclusive.  The one this year is not.  There is a way, especially since even many who believe in God do not think of the holiday as specifically a religious holiday, to include everyone here.

The presidential proclamation here provides one of various ways that the Trump/Pence Administration can "establish" their breed of evangelical tinged religious belief by official acts.  It is rather minor as compared to let's say providing more exceptions to the contraceptive mandate or something, but I do think it notable. This holiday season -- perhaps we can think of it as a two month span in various respects (Halloween to New Years) has a lot of charming components (including Hallmark Christmas movies), but much diversity.  We should honor that.

I have long focused some on holiday display cases as decided mainly by the Supreme Court.  It is shall we say part of my holiday tradition with Oyez.com allowing me to listen to various oral arguments.  My sympathies are with a separatist position such as spelled out by Justice Stevens: "The Establishment Clause should be construed to create a strong presumption against the installation of unattended religious symbols on public property." In practice, official mixture here will in the long run favor certain religions over others and there are many alternatives to some official creche or menorah etc.  For instance, I recently saw reference to a set of four postage  holiday stamps and there was really no non-religious option though it was pointed out Kwanzaa is in effect a secular holiday.  Perhaps, but not one really of a general character.  And, symbols do have special power.

Thus, the "passive" nature of displays only takes us so far.  There also is a theme in these cases on one side that the test should be some sort of coercion or proselytizing (Justice Kennedy suggested a gigantic cross on a government building could be to much.). But, that has a free exercise character. The Establishment Clause goes further than that. Thus, "We are a Christian Nation" type proclamations might not be "coercive" though in practice there really is a long term overlap once a certain group is favored even if others do not directly are coerced to pray or something. 

With new membership, the state of the law here might be in flux and a ruling involving a gigantic cross might provide further clarification. The current rule appears to be that a display can not be seen to endorse religion. This encourages the usage of diverse displays, a creche standing alone being found to be unconstitutional (if by 5-4).  Stevens' opinion involved one type of case -- localities that tried to specifically not allow religious displays.  This was seen as content/viewpoint discrimination, which I find somewhat dubious given the Establishment Clause provides a special case here.  Interestingly, Justice White took a middle path here in a case involving student groups, another issue that arose repeatedly in some fashion.  He would allow flexibility and that to me seems like a good idea.

To clarify here, the matter involves the government, not private display. It also doesn't involve simply having Christmas as an offiical holiday, which both honors its secualar character while also having a free exercise component (e.g., New York City made the Jewish New Year a school holiday for related reasons).  The latter case involved a public area near the seat of government that provided a chance for various people to put different types of freestanding displays such as a thermometer stating money raised for some charity.  The state didn't want to allow religious displays since it felt that it would be seen to be endorsing it.  The Court divided three ways -- four thought there was no Establishment Clause problem with allowing all displays (including religious ones) and singling out them would be discrimination. Three thought a disclaimer or something would avoid the first problem. Two didn't thnk so, especially the flimsy one available.

Over time, I have been somewhat more accepting of a middle path in things involving the First Amendment.  Some people online in particular have spoken about the first two amendments in such strident terms that it turns me off.  An absolute rule is realistically impossible and practice doesn't recognize it.  The result will be various line drawing anyhow.  So, e.g., Justice Black said "no law means no law" but somehow managed to be in dissent both in a case involving students wearing black armbands and a jacket with "Fuck the Draft" on it. "Freedom of" includes this. 

But, basic concerns should be met and can be done here as well. The endorsement test, however messy along the edges, to me provides a reasonable approach.  I do think a holiday display with a single religion dominating would violate such a test.  Also, some flexibility here makes sense too as referenced earlier.  These cases encourage hypos on each side that suggests both are extreme. In practice, life is a compromise and there is some appropriate middle ground.  It honors federalism in the bargain.  Inclusiveness should be the name of the game. Holidays are for all of us.

Note:  It is sometimes argued that concerns as stated here are in some fashion anti-religious, but this is not my intention though perhaps it might be for some others. Justice Brennan, e.g., was a strong separatist while also repeatedly supporting free exercise more than other justices as well.

Furthermore, the inclusiveness and equality concerns point to a respect for all beliefs. The conservative side arguably is really supportive of religious favoritism or even disrespecting religious belief.  Thus, e.g., Justice Scalia argued a cross can be a general memorial for war dead (the lawyer argued many Jews might disagree) and ignored the nuances of various forms of the Ten Commandments in supporting one as a sort of general symbol. But, and this is seen in the history, many religious people are very concerned with details here. The specific wording of prayers could be a matter of great controversy. Religious freedom also does not just mean some general civic religion that tends to have a certain bland Christian flavor.

And, they will disagree among themselves, including let's say as to the legitimacy of usage of a menorah in a public display.  Likewise, some bland usage to lessen controversy can be argued as a cheapening of religion. The ultimate dividing line is not lack of respect of belief but a difference of opinion on how to do that.

Election Day: Sanity and Bit More (and Less)

It is appreciated that the Dems regained control of the House with some picks in red areas and had some good ballot measures (including multiple states expanding Medicaid) but the trolls winning in the Senate and statehouses (not all confirmed) depresses and angers me. It is not just that many of the Democrats were good candidates but that some of the Republicans were horrible. Well, a few of them, including Kobach did lose. Still, it's tough. We have a long way to go as a country. Full Democratic control of the NY Legislature now.

Update: It's a week after and the election isn't over in various ways, including the Florida Senate race and two key state governor races that influenced my negativity. It is a relief that Sinema seems to have won Arizona after being behind by a percentage the morning after. The Senate cycle was very tough and the Dems (pending Florida) will be either -1 or -2, which tbh is realistically a win especially since Doug Jones was a steal. Tough losses though.

Sports Update

Jets kept it close vs. a decent team (Bears) until their defense could no longer do so (injuries helped to limit much offense). Giants are again 1-7, Redskins mediocre enough to only add the second score margin until late in the game. Again, parity and some talent meant they really had a shot at a win (in two games, really long field goals doomed them). A late mistake doomed the Packers who gave no loss Rams a run for it. The Red Sox could have swept except for a 18th inning loss helped by errors and such in Game 3. They won in 5. Not great playoffs overall. Mets have a new GM. Let's see how much it matters. Basketball was played.

Few Links

The whole Electoral College thing isn't working, so maybe finding swords in lakes and such will do the trick. Current craziness can be helped by looking at old mental health films, thanks to the Library of Congress. Finally, a callback to Howard Cosell responding a famous protest, compared to current kneeling actions. And, Shaggy on money PTB types.

Justice O'Connor Steps Away From Public Life

After a long life in public service, including some years after her retirement from active SCOTUS service, O'Connor released a touching letter to the public (after being out of public view for a while) formally stepping away for health reasons. It underlines the importance of civics (her cause after retirement) and each justice replied. I'm not sure why her letter isn't posted on their website. It is (as Souter's reply notes) quite timely. Some think her vote in Bush v. Gore tarred her forever. But, I respect her public service and overall sanity.

Meanwhile: This move is basically a limited one with a specious Trump enabling partial dissent by two likely suspects, but it pisses me off they (yet again) don't explain themselves. You are delaying oversight involving the census that the lower court accepted. WHY?!

SCOTUS Watch

Tony Mauro reports for The National Law Journal that “Supreme Court Justice Sonia Sotomayor said this week that the arrival of Brett Kavanaugh has been greeted with the traditional ‘welcoming for a new member of our court,’ adding that “we are going to let these times pass,’” an apparent reference to his stormy confirmation process.”

She's stuck working with the guy, now given the 7th Circuit. I'm not so rather not since that is the route to repetition. I sent (seriously) a letter to the liberals and Roberts on the Supreme Court putting them on notice. Meanwhile, Roberts did his usual sales job, including opposing televising the court (in general though orals are emphasized) in part since it's not their job to educate. That's why he's out giving interviews. I think it's part of their job, but either way, it can be done and helps their main job in the long run. An uneducated public inhibits it.

Baseball and Books

Couple late nite finishes in the playoffs and neither ended well in my eyes. Brewers still need to just win two straight.The Endings is a good idea, well done: photographs that tell a tale of loss for various women, a few portrayed by well known actresses. I'm not sure how far I'd take it but Why Honor Matters is at least an intriguing read up to a point. For instance, the Republicans during court battles to me in part are dishonorable -- in your face -- and Democrats need to factor that in when responding. Pragmatics need to take that into consideration as seen by the negative reply to a recent "compromise" that I'm not alone confused about the value of. But, not sure how far that is a matter of "honor" exactly.

ETA: Another team I preferred was eliminated, the Astros only winning one, in part thanks to a bad call and great catch at the end. Well that was Game 4, but it sealed their fate.

A History Of America In Ten Strikes

I added this to the side panel and went to see the author talk about it. He is a character and has good stuff (including his grave visits and labor history series) at LGM -- strong lefty but with signs of reasonableness among the bluster. I liked the book overall (lot of material; at times had to only summarize). My overall idea is that if we are all workers and unions are so essential for fairness, what about making them mandatory, at least in certain areas with particular interstate commerce salience? Cf. public accommodation rules. Not optional. The importance for regulation of unions for economic peace was relied on in the 1930s. There is also a "free labor"/13A argument out there. The "choose to join a union" approach exists where free choice is at best imperfect. Unions provide a necessary resource. Too commie?

Trump Court Watch

There was one more time for people like myself to be upset at the Kavanaugh confirmation process when there was a ceremony at the White House last night. As of the Braves games wasn't annoying enough. (Three native named teams played; all had bad games.)

As argued here, there is an unseemly political aspect to this, especially after he already took his constitutional (Art. VI) and judicial (by statute) oath on Saturday. Of course, with Trump ("I apologize on behalf of the American people ... found innocent") and Kavanaugh (his usual b.s. including starting by sucking up to Trump and name checking various people he thanked, showing how neutral and above the fray he is) this rubs salt in the wound.  For whatever reason, it was handled differently for Sotomayor and Kagan (see op-ed) and that is how it should be.

So, after around a week, there is a full Court for the term. There were orders today (Justice Sotomayor put forth a statement concerned about solitary confinement, something Kennedy also flagged near the end).  And, oral argument (Kagan next to Kavanaugh) in two statutory cases. There were reports it was "jovial" with Kagan joshing with Kavanaugh and (per another report) Sotomayor even pinched Gorsuch (who she sits next to) to make a point, which he found amusing.  Being a grumpy sort, and not having a lifetime appointment with these people, this bothers me somewhat. Someone on Twitter argued:

The deed is done and there's nothing she can do about it. This is how adults, and professionals, are supposed to behave. You make the effort.  You make the best of a bad situation. I would expect nothing less from the decent people on the court.

The person appeared to be someone concerned with Trump at least, not some above the fray sort.  Another critic, a liberal leaning legal analyst, said that Kagan is there to make deals and so forth, and disgusting he might be, but that's how you need to play it.  I realize there are various ways to fight the battle here. You have to live with these people and work within the system when you have certain roles. Emotion alone can't rule.

But, sorry, it's too soon for such a public joshing with someone around ten days ago or less was seen as an unhinged partisan liar which the evidence suggests is also a sexual abuser of some type.  That's just me.  I need time.  It's still raw.  I for one am able to somewhat calmly talk about Thomas. Some still can't.  Time passed. Apparently, there were a few protestors outside, but no incident inside.  I find this disappointing. Again, it just happened.  When usually calm analysts like E.J. Dionne talk about needing to remain angry, the Court itself has to be reminded that things aren't okay. A public presence, reported by observers, inside would be a reminder. Instead we get reports of how "jovial" it all was.

I am not a fan of talk of packing the courts, but long term, things have to be done. The end of the filibuster for executive appointments (even if we can debate how the Supreme Court is handled) to me was necessary given how the system was abused under McConnell.  The request for calm, sometimes but not always by those comfortable enough (even if they find some of it distasteful) with the judges in place, only can be taken so far. For instance, there will be a demand for investigation of Kavanaugh if the Democrats win the House. This might seem unpleasant, but that is what happens when the first process was so flawed.

Along with continual press investigations and other types of additional ways for stuff to come out, this will call attention to the Supreme Court. For good or ill. More so than after Gorsuch where the handling of the Garland Seat lingered on without as much concrete things happening. We will hear about proposals for term limits or a full court with only a panel of nine etc. And, the "let's be reasonable" bunch need to have so limit. What about if RBG and/or Breyer are forced to resign?  Will they act the same with a 6-3 Court?  The first two seats are tainted. Sorry. It's a fact.

One moves on and figures out what to do (including like water finding an outlet, getting protections that the a better Court might bring some other, if more flawed, route).  But, like with Gorsuch, me personally, I am not fully moving on.  Respect has to be earned and if a process is tainted and/or the courts act badly, there is no special obligation to give them the same respect.  Sometimes, this will hurt, but a 5-4 Court with Roberts in the center will more often have results where that taint will benefit in the marginal cases.  And, yes, focus on elections.

It isn't all elections though. We had every right to find the process broken and even yes unjust and in some fashion illegitimate even if he got two more votes in the end.  Might does not by itself make right. This isn't naive. Power matters a lot. But, it also comes in various forms. Trump being tainted with strong public opposition matters and weakens him. Even if he won in November.

Malicious

With the usual cheap looking copy of the film ala Youtoo America, the latest bad late night film is a mid-1990s somewhat erotic thriller with Molly Ringwald (basic cable, so need to search to see her breasts) and some character actor playing a cop being the only faces that are familiar. Not that any of them act very well. Molly's character screamed "stay away, she's a nut!" when she meets the hero at a party. Maybe, his girlfriend shouldn't have been such a prude when they kissed in the library (the second time, HE was the run who cut it off). There is actually limited bloodshed, no real surprises and it is relatively painless bad film fun.

SCOTUS Steps Closer To Illegitimacy 51-49

[Cloture was today but senators made their opinions know. Final vote tomorrow.  Things were delayed into late October for Thomas. Looks like over twenty-five years later, for someone with more baggage, it will be a lot quicker. If more ugly. The final vote was Saturday and was 50-48, Murkowski voting "present" to balance off a "yes" who was at a wedding.]

Yale. Thousands of law professors. The Jesuits. A progressive leaning church coalition. Retired Justice John Paul Stevens. The ABA. Some old drinking buddies and his former college roommate.* But, like Lincoln's comment about preferring God on his side but needing Kentucky, beating Kavanaugh would require two Republicans senators. 

We got  one. Thanks, Sen. Murkowski, who made her position known by voting against cloture. Earlier, Sen. Heitkamp -- a very at risk red state Dem -- joined others in opposing him.  Sen. Manchin balanced off the gentlelady from Alaska by voting for cloture. His vote was mostly symbolic since Pence could have broke the tie anyway.  Still, annoying he voiced Republican "don't really believe the women" garage doing so.  Something, opponents should honestly face up to that many (white) Republican women share. And, Collins gave him cover. Doubt he would be the 50th vote.

It seems that Kavanaugh's Trumpian appearance (followed up by a partial walk back in a Wall St. Journal op-ed [as neutral judicial umpires do], which was all "me me me," not doing something like separating himself from Trump's ridicule of the victim's memory ... fictional at that as Colbert neatly did by comparing the two)  worked.  I don't know how much really as compared to convincing people who really didn't need to be anyway. It's hard to see to me his act convinced many senators though it might have attracted some of their base.  Which politically might be the same.

I rather Democrats don't get too many ideas about acting like Trump. We saw with Marco Rubio that those without quite the skill or stomach for that won't do well. Plus, it's a seedy strategy that debases you in the long run. I hope that is also pragmatically a bad idea for the progressive side.  Long term, yet another decade (from 1969) of a conservative majority, now without a true swing vote, might require some hardball.  I was not overall appreciative that doing so was compared to segregationists.  Long term, how much did that work, really?  Anyway, starting feeling a need to be a bit apologetic is a tad troublesome.  Some concern here is a good thing, but only up to a point.  Framing and mentality matters here.

There was two letters signed by law professors against Kavanaugh, one lesser known one (deserving more attention) from over six hundred female law professors.  Some opponents decided not to sign the letter for whatever reason, which is fine, though a major point here was the opposition alone as compared to specific details.  The author there has opposed Trump in particular as lacking a basic republican character so should get less discretion.  I think legitimacy comes from one's actions. We are a constitutional republic, a limited government, and merely because a majority under the system in place elects someone, that isn't enough.

I like democracy more than some people, but our democracy is of that sort. Elections do add some benefit of the doubt. The "presumption of constitutionality." I don't think Sandy Levinson's co-authored article was overly convincing there as to Trump though Trump's actions give enough evidence to have the courts in various cases to overrule that presumption. Others trust the people in power more, in part because they have the right enemies. Philosophically, that's understandable.

The system provides checks. One is the Senate. I have voiced an opinion on the senator's oath. Again, that is different than raw power. Many from the beginning voiced some concern for that oath and the responsibility it brings. I think it failed today. It wouldn't be the first time, but I think the case here was pretty blatant. Senator Murkowski and others have the insight on what it might breed. Some have warned that we have been on a road here from some time.  I do think there is a limit though.** 

And, [a person in the "opposing" thread linked] references the role of others, who have some importance in aiding and abetting the system in place. As with segregation, it doesn't work merely because of the governmental actors. The letters was a late awareness of what was at stake that should have been put forth earlier. The evidence was there before that Thursday hearing. It was not truly a surprise, but a stripping of the veneer.

We live in interesting times. As usual, that is something of a curse.

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* Or, as one tweet noted: 2400+ Law professors —The ACLU —Amnesty International —Former Justice John Paul Stevens —The Jesuit Society —National Council of Churches — Washington Post, USA Today, NYT, and LA Times editorial boards —70% of Americans.

** I found a comment from the mid-Bush years saying I was too naive about how the courts operated. I responded that I try to be realistic while still pointing out how I think things should work. Hopefully, things fall in the middle. The person also a long time ago said I sounded like a law professor.  Depends on what one.  (A law professor liked that comment on Twitter. Ha!) 

SCOTUS (7/8 Legitimate) Update

As talk of a sham additional FBI investigation on Kavanaugh continues, what are the justices thinking?, the 2018 October Term began. Long order list to add to recent case developments, long in length, but nothing apparently too notable (no grants). Last week, in the midst of the hearing, another death penalty final appeal was tossed out without comment. Somewhat low temperature cases to start (though a death penalty case is up) though agency discretion and property rights provide some juice. Opening should have been televised.

Sports Update

The Mets had a bad swoon from sometime in May to June and a .500 July. Since then, especially in September, they had a good run. David Wright's final game on Saturday was very nicely done. Reyes' possible final game on Sunday was somewhat less notable. Some fun games (including two decided in the final seconds of OT) but not on the NY side. Two tie-breakers in baseball today though I rather they use a tie-breaker based on record.