Supreme Court Update (Sports Too)

Most of the three game Wild Card series were done in two, including the Marlins over Cubs and the Twins continuing their run of futility.  The last game, scoreless mid-way as I type, is one of the exceptions (Cards/San Diego).  Meanwhile, to 0-3 teams faced up for Thursday Night Football, the Jets and the third quarterback time Broncos. The Jets got to the QB in the 4th for two defensive aided scores (if one that was dubiously careful) but they blew it in the end. The ability to end the game without a penalty put a bow on things. The head coach for some reason has job security.

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The big news -- coming after many went to bed though hints were in place earlier -- is that the First Couple has the Big V, after Hope Hicks was reported (not by the Administration) to have it. After that was known, Trump still went and exposed people at a campaign event. Yeah, that is why the "we need to aim high here" stuff isn't totally in place.  He went to Walter Reed today, upping the drama, but who the heck knows.

This has Supremes implications since there was exposure (though there has been reports the nominee already had it) at the announcement event last Saturday. At least two Republican members of the Judiciary Committee (quarantine rules require more time than the scheduled hearings, but can it be done virtually?) have the virus now.  Maybe, it was a "character issue" for the nominee to take part without social distancing and the like.  Meanwhile, SCOTUS released details for telephonic arguments next Monday, the beginning of the 2020 Term.

There was an order regarding a census dispute [meanwhile, for now, a lower court ruling means the count continues for another month]. As one tweet from a court watcher phrased it: the Supreme Court "agrees to fast-track briefing in dispute over whether people living in US illegally must be included in reapportionment of congressional seats. Orders challengers to respond to government's appeal by 10/7."  More important, an order list today granted some more cases, including a potentially important Voting Rights Act case.  Alito is not taking part in one, so that's seven to eight people involved in deciding the matter.

The tainted Court returns on Monday with orders and orals.

Sports Sunday: New York Mostly Loses

The Mets started Saturday's DH still alive in the playoff race (and the other teams broke down as necessary!), but they had to win all three left. They lost all three, leaving them in last place (Nats win the tiebreaker). Brewers got in under .500.

Meanwhile, the Yanks lost 5-0 on Sunday to the fellow playoff Marlins while the Jets and Giants (previously of the "at least they were respectable" class) embarrassed themselves, the latter versus back-ups. Buffalo (with a help of a questionable penalty) avoided losing, after blowing a 25 point lead. Giants do benefit from a division where the other teams have all of 2.5 wins. Baseball playoffs begin today.

Amy Coney Barrett: Spits On SCOTUS (like NG and BK)

Amy Coney clerked for Scalia when I clerked for RBG. I like her, she's brilliant, and I respect her religious beliefs. She's "the Conenator." But doing this now is bullshit. I hope Amy will be a hero and turn down the nomination unless Trump wins. End this awfulness now, please.

— Jay Wexler (@SCOTUSHUMOR) September 26, 2020

Compare this, where (however it bothers you), she is praised but the basic fuckery of taking the nomination under the current situation is bullshit. And, Jay Wexler saying that about a friend, or at all probably, is notable from what I can tell -- he is one of those nice sounding types who don't talk like that blithely. Compare it that is to the winner of the Neal Katyal/Gorsuch 'hey he's a liberal!" Award winner ... Noah Feldman.

This is the woman who said that Obama in 2016 shouldn't have nominated someone (an older white moderate guy Republicans up to and including Chief Justice Roberts likes) someone who would shift the Court.  

[The discussion here -- which takes a modified Josh Marshall/don't get involved approach by from what I can tell saying they can show up to the hearing but not ask questions -- notes the hypocrisy claim is off. Looking at the full video -- noting it is just there -- he has a point. He does eventually suggest she is defending, not just describing, what is happening.  But, she doesn't say it is the only right approach. Again, in that interview. So, I probably kneejerked there some. See my whole remarks.]


Reading her remarks at SCOTUSBlog accepting the nomination from Trump -- the guy who can't say he will accept the result of the election and yet again was the subject of a woman saying she was sexually attacked by him [this really pissed off the Strict Scrutiny Podcast women] -- made me fucking pissed at her.  Immoral hypocritical asshole.

Let me again quote her FRIEND who says as well (as did I! at least, if the choice was her, Kavanaugh or some cookie cutter Federalist Society person) he supported her nomination for the last seat. This after she accepted the nomination (on Twitter too):

It’s so disappointing that Amy Coney is letting herself be so blatantly used for political purposes by a man who assaults women and brags about it, puts children in cages, mocks the disabled, and lies to no end. A seat on the Court isn’t worth cooperating with such depravity.

"Disappointing" is one way to phrase it.  Note that RBG was not buried yet. Obama, probably taking too long but still, waited a month. A week is seen as generous now.  Again, per the SCOTUS website:

A private interment service will be held next week at Arlington National Cemetery.

A few people, including a criminal justice warrior, was upset at people quoting RBG's dying wish that someone else nominated the person to replace her.  (Ted Cruz had "asshole had a point" cred when he opposed a Senate resolution in her honor that tossed in that bit via the Democrats; it shouldn't be there in a non-partisan, non-controversial resolution.)  That is a bit much, especially right after she died. But, this sort of thing is a bit disrespectful, eh?  And, thought Rewire News Group (new name for Rewire) Boom! Lawyer podcast referenced that, who else did?

Josh Marshall says:

Don’t participate. It’s madness.

I don't believe all the Dems won't meet with her etc., but the "Garland treatment" does seem appropriate.  I really didn't think that there was a chance (though people dream about it -- it's akin to talk of impeaching Trump judicial noms left and right) of even a strong attempt to pack the Supreme Court.  Or, however, you want to phrase it. But, this sham travesty, for RBG (the sixth seat to me always was different, including on an emotional level, which is a thing for humans) makes it possible.

I was hopeful -- admit it -- that Scalia's death would result in a 5-4 Court, a change that was due after decades, including six of seven (!) plurality/majority wins.  [One can count the last one.]  Merrick Garland would have been an objectively good choice.  He would not likely to be on there for thirty years into his mid-nineties.  He was someone Republicans said they liked. He was (really) a moderate liberal, on a Court that would turn on them (Breyer, Kagan, Garland, Roberts and Kennedy ... at times ... would be the core of the center).  Went another way.

Enough.  And, sorry if it makes Rick Hasen cry, but this whole thing makes the whole Court illegitimate.  It has to be expanded. As I have noted for years, the federal courts are not merely above the fray independent guardians with judicial review powers. They are filled via a political process, which affects the final product. The process, however, has to be legitimate, including in a constitutional norm way.  "I'm not touching you" while your sister sticks a finger an inch away is not that.

Talking about process, how many kids she has (she's younger than me and has -- by a mixture of ways -- seven damn kids), her religion (Dems are so anti-Catholic their House Speaker and nominee are both Catholic!) etc. is dust in the eyes here. I guess it's time to write some justices again.

ETA: This clip pisses me off.  No "character issue"? She took the nomination, including when last time she said Obama should not do the exact same thing (and as Kate Shaw underlines, the shift is more blatant here than with Garland), enabling Trump here. The election dispute is "not her fault"? She chose the job and would choose to take part if she doesn't recuse.  Can't we bluntly say what the fuck is happening? Call her out Melissa Murray or Leah Litman!  You can do it behind the scenes.

Baseball

I noted my lack of passion for baseball this year and mixed feelings about various new rules. They had COVID issues, but not as many as one might fear. Overall, I watched. The Mets, who are still not officially eliminated from the expanded playoffs (elimination number of 1), had their usual disappointing "should have been better" season. Usual injury woes. New star: David Peterson. Usual high points and "we can do this!" Usual failure.

Compare the Marlins, who besides looking crisp each time the Mets played them, crafted in a sort of garage sale way a playoff team. Teams do manage to work with what they have and not spend 10 million or whatever for fifth starters. Consider Tampa, leaders of the AL East. The new Mets billionaire owner picked Sandy Alderson to run things. Let's see how that goes.

Update: Mixing regular with novel, playoff hopes ended in a seven inning makeup in a game where each ace for the Mets and Nats (lousy season) struggled, the tying run for the Nats came via an inside the park home run when Dom "not really an OF" Smith ran into a wall and messiness/wildness contributed to runs too. 4-3 loss, Degrom gets a No Decision.

SCOTUS Watch: #RIPRBG Edition

The first Monday of October is around ten days away and around now the justices are getting prepared to have a "long conference" to deal with lingering issues. This time a special thing overshadows all, as with her bestie Scalia, particularly because of partisan battles. The last death on the bench that went smoothly was Rehnquist, with Roberts easily slipping in. 

Of course, the thing that dominates the week that overlaps this entry is RBG's death. I have commented about it and won't dwell too much on the issues here.  The events includes lying in state, which one female rabbi noted on Twitter is okay -- Jewish law is flexible enough for her to get the same honors of other great public figures. We can also assume that even if she did respect Jewish traditions, she was liberal enough there to work that in.  (Sighs deeply.)

Obama, for whatever reason, waited like a month to nominate Garland, in part because he wanted to do things right and figured McConnell would likely block the guy anyway.  Trump and the Republicans have a quicker timetable to address, plus control the process as a whole.  So, basically, the idea is to wait until the funeral is over or some such.  As expected, leaked on Friday, Judge Amy "Obama shouldn't pick someone who shifts the Court" (2016) Coney-Barrett was nominated.  She leaves a lot to be desired, if we had to have someone, I rather her than Kavanaugh? Now? It's just bullshit, especially with Trump finding it a problem even to say he would accept the results of the election. 

One liberal Dem did not wait to offer a statutory term limit bill, the rules not applying to current justices, but otherwise (a big caveat) seems workable for argument. The idea the powers that be would actually allow it is much less unclear.  My reading of Art. III also suggests forced retirement (the number is kept at nine withe a nomination in the first and third year, so the most senior has to retire ... a clock is set so the Senate cannot simply filibuster) is of dubious constitutionality.  Some have tried to argue it is not, but unclear again if it is clear enough that it will pass muster. 

The bill does help advance the conversation of a measure that very well might get some sort of bipartisan or cross-ideological support, even if a seemingly longshot amendment is required.  Once an amendment actually is passed Congress, one wonders if there will be some push for more. A major one would be the ERA, which three more states allegedly ratified.  Biden supports some sort of campaign amendment, as I recall. etc.  Will the next few years bring forth major constitutional change?

One thing cited is that the current Supreme Court leans Roman Catholic with six of eight justices (or whatever) either Catholic or conservative Catholic-like Christians.  In that mix are conservatives and Sotomayor, who is a sort of secular lapsed liberal Catholic.  Note how they aren't even diverse in the sense of Catholics.  Meanwhile, Bill Barr received an award from the National Catholic Prayer Breakfast, whose founders included the likes of Rick Santorum and Leonard "Federalist Society" Leo.  This award for his "Christ-like" behavior came in between two executions.

I have not "deep dived" the executions this year as I did one year, but the now seventh federal executions generally each had issues.  Raising my hackles again, we had two no comment orders rejecting final appeals, an execution not deemed worth comment by one justice.  The first relied on the defendant's lead lawyer not being able to show up because of COVID, a theme (including family members of victims or religious assistants) of various case. No justice -- even when they flagged other issues -- commented on that issue.  The personal reason was the ironic fact the family of the murderer also lost a son to a murderer, that one getting prison.

The second relied on dispute over what the federal statutory death penalty rule required, here arising since Texas (!) requires more time between the death order and the execution.  A possible reason would be that the person was only nineteen, some evidence being present that those under 21 at least should not be exercised. Conservatives not liking the 18 line, I can see this being a lost cause. OTOH, the conservatives (RBG and Sotomayor flagged their concern) don't want to deal with this issue either.

I find this rather outrageous -- other than Timothy McVeigh, two people were executed by the feds in the modern era (post-1976) and there has been clear dispute in the lower courts on the rules here. There should be clarity BEFORE you execute (so far; no one else is scheduled, but who knows) seven people. Yes, this one was heinous -- though the justice of executing the guy after twenty years is unclear to me -- but the ones that will get a death sentence often are.  Basic fairness is clarifying a basic procedural matter, even if I'm sure the result will not be pleasing with this Court.

Wonder how Charles L. Black would feel about trusting the courts with his human rights effort today. Over twenty years ago, toward the end of his life, he wrote A New Birth of Freedom, which rests a system of national human rights on the Declaration of Independence, the Ninth Amendment and the Privileges or Immunities Clause.  He is not a fan of substantive due process, including because it encourages people to be wary about an open-ended rights process [unclear if the people who are would care who one does it].  He includes a chapter on the importance of affirmative rights like fighting poverty, noting something like that is more a legislative function.

I re-read the book this week -- perhaps well timed -- and find it fairly well argued (if a bit rambling at times) though the guy was writing in the 1990s. The courts were already somewhat conservative, including the Supreme Court, which you'd think he at least flag as a possible problem.  I think the overall argument is sound on a basic level. Substantive due process assumes an overall "liberty," which the three sources provide a useful source.  He also provides basic ways to reason out things via a common law mention, notes the limits of majoritarianism and defends judicial review. Of special note there is the people and Congress (since the Judiciary Act of 1789) support it. 

I still think it a bit blithe to focus so much on the "pursuit of happiness" as he winds up doing near the end.  I think there is a variety of ways to get there and Douglas' approach in Griswold, substantive due process etc. all provide some value.  And, he notes that rights are not absolute. That should go to the idea of federal judicial review. How to break that down is uncler, but maybe we will hear about it in the years ahead.

Some books

With #AbolishPolice getting more attention given recent protests, The End of Policing by Alex Vitale from a few years back might be getting another look. It does not spell out -- as some do -- the alternatives to our current system of police and punishment.  So, e.g., what do we do not only for relatively easy cases (sure, decriminalize drugs or sex work) but things that everyone generally accepts as criminal (e.g., rape or murder). 

The book provides a general refutation of the idea that police are there to protect us, arguing the modern police department was basically formed to hold down outsiders. It then provides a look at various areas (e.g., drugs, schools, mental health and border security) where police basically worsen the situation.  And, like atheists who find liberal Christians and the like basically part of the problem, "reforms" (e.g., drug courts or diversity in police departments) are seen as of limited value at best.  The "alternatives" tend to focus on taking police out of the picture.

I think the book (a little over two hundred pages) makes some good points, but found it too one-sided.  Such will be the nature of such works, sure, but at some point it bothered me.  I am by nature a hybrid: tend to find things are not easily split by black/white, even if there are some firm lines to draw. So, yes, I think the traditional idea of God is misguided, but also think simply saying the whole thing (or "religion") is bogus is as well.

Anyways, to toss them in, read a few other books to finish off the summer season (RBG dying basically led us into the fall -- what will it wrought?!).  The Indomitable Florence Finch, by a former Democratic politician turned history writer, talks about a Filipino-American who resisted the Japanese during WWII.  It is particularly good since it has a range of focus, including her former boss as he survives a long internment.  The Unexpected Spy by Tracy Walder is about her experience in the CIA (mildly redacted) and FBI (where she suffered sexism), she ultimately ending up being that history teacher she early on dreamed of being. 

Also, not as new, is a book on the French Jewish socialist and prime minister, Leon Blum by Pierre Birnbaum. It's from a collection of short Jewish histories that includes one about Louis Brandeis that I read.  Blum's life spanned from the 1870s until 1950, so he survived among other things imprisonment during WWII, if in better quarters than most Jews.  Book is a bit academic, but was a pretty good summary of someone new to me.

Finally, began the new season with a re-read of a 1969 book that is really a report by The Community of Psychiatry and the Law entitled The Right of Abortion: A Psychiatric View.  I found it in a used book store. It argues that abortion should be the choice of a woman, treated as a medical procedure.  The discussion overall holds up, down to a reference to a then minority viewpoint that IUDs don't actually stop implantation but fertilization itself.  Ditto talk of post-abortion trauma being basically a myth and that the whole issue is ultimately a personal religious choice.

A timely read with RBG's death and the chance that the person to be nominated will have a very different view on the subject. 

More on RBG

As with the death of JPS, Justice Souter's brief comments says it as good or better than the rest: "Ruth Ginsburg was one of the members of the Court who achieved greatness before she became a great justice. I loved her to pieces." I miss that guy. Note the absence as before of Justice O'Connor, who has been in decline for a few years now. Her death will come at some point.

There has been various good obits, including by Irin Carmon (who co-wrote a book about her) and Linda Greenhouse (the long time Court reporter and now biweekly commentator). Linda Greenhouse at one point noted that RBG was considered a judicial restraint liberal on the court of appeals. She was there for over a decade, so that perhaps should get more attention.

On SCOTUS, she was more traditionally liberal, if (except for some key dissents) not likely to write in major cases except for sex equality related ones. This is partially a result of the control of the Court. OTOH, it is also partially her skill-set in procedural matters, which was a particular expertise of hers. One person cited an opinion of hers protecting a woman who couldn't pay the fees required in a parental termination case. This equal protection principle was particularly important because of the interest (parental rights) at issue. Kennedy noted the line of cases mixed due process and equal protection interests, a theme he later used in Lawrence and Obergefell, in the latter in part citing this case.

(One interesting foonote is the citation of Lindsey v. Normet, which is repeated part of a string of cases cited to show that economic and social legislation generally, especially against some claim for benefits like housing or the like, should be weighed using rational basis review. But, here, it is used because the opinion did strike down a portion of the process challenged. So, it was actually not a total loss.)

Biden has drew the line -- the winner of the 2020 elections should be the one who picks her replacement. Reports are that she on her deathbed dictated a statement that she strongly wished the next president to do the deed. I doubt anyone is really surprised except perhaps by her making it known. Biden also made the important comment that the normal process to confirm justices takes longer than the time between now and Election Day, which CNN, e.g., showed in a recent article. RBG was confirmed in fifty days, which might be a talking point. But, that was before the 21st Century and was pretty quick anyway. Plus, not so close to an election etc.

I also saw at least one law professor noting that if a confirmation occurs before Election Day or during the lame duck (assume Trump + a Republican Senate in 2021 might change the equation), that moderates will be pushed into supporting court packing. She might be basically talking about herself since the person strongly opposed it in the past. Lyle Denninson, the SCOTUS reporter vet (he's around 90 now) still opposes it. But, then again, he in reply to one comment noted we were "fine" at the moment, which was just funny even if limited to the state of the Senate.

I thought in 2016 that Scalia died early enough that it was fair, especially given the pick, to confirm a new justice. It is harder to talk about that in late September with current practices (including Gorsuch) taking two months or so to confirm especially. You can talk about "technically" the person elected is still in power, but dying in mid-February (and picking the person -- to me a bit too long -- in March) is rather different than the situation now. But, the precedent was set in 2016. It will just be damn wrong, putting aside who we are dealing with, to shift again.

McConnell, right after her death was announced, did so shift. Somehow the control of the Senate and presidency together matters, not just the right of the people to decide in an election year. It's Calvinball. Lindsey Graham too seems to have shifted. Such an asshole. The gentle ladies of Maine and Alaska might hold. That "might" very well might be too optimistic. But, you need four if the Dems hold. We saw that with Kavanaugh. I thought Amy Coney-Barrett was better than Kavanaugh, and in some role she might be okay on SCOTUS, but don't want her for RBG.

Will the Dems, if they can, expand the Court if she is confirmed in October or December? I just don't know. But, with the ERA, statehood for D.C. (and Puerto Rico?), the end of the filibuster for legislation, etc. up in the air, the 2020s will be rather interesting. If some travesty happens in November, still so. Just in a more dark way. Not that 2020 has not been so very dark. RBG's death, if well timed for her Jewish nature on Rosh Hashanah (those who die on that day are deemed particularly honorable), adds to it all.

SCOTUS Watch: Almost October Edition

Update: Stolen Seat Gorsuch, as noted below, took part in some public event remotely in honor of Constitution Day and honored RBG, who received some honor, but did not personally show up. So, it sounded like things were the same, as she fought cancer (again).

It has now been announced she died. Moscow Mitch via his Calvinball rules says Trump's replacement for her will get a vote. We shall see. Dems need to stand up. It takes a bit of time, maybe over a month really, for the normal process of confirmation to occur. Either way, Dems have to draw a line -- no confirmation before the new presidential term or expansion of the Supreme Court. RBG bet on HRC or outliving Trump. Thought she'd do it.

I guess, noting her great contributions, it reminds us she still with but one person. Some will do a "told ya so" regarding their belief she was selfish for not resigning during the Obama Administration. If that makes you feel better. Anyway, her legacy, contra one comment, cannot simply be voided now. Too much has happened in the last forty plus years. Let's hope the current society she helped form will help address this.

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I noted recently that this month had a few more non-presidential primaries. One more notable election: it looks like we will have the first trans state senator.

September 17th was Constitution Day, in honor of the day the Constitution was agreed upon at the Constitution Convention. Breyer and Stolen Seat Gorsuch (one person noted on Twitter he now has a beard; another Ted Cruz?) had appearances per SCOTUSBlog.

Breyer left the law students with a piece of advice: Participate in civic life. While waving his pocket Constitution on the screen, he smiled and said, “The people who wrote this thought, if you do not participate, this won’t work.”

Yes. The current participation moment, of which I'm taking part as a census enumerator, is filling out and helping ("proxies" give information for neighbors) with the completion of the census. We also are working toward the November elections. A range of things are involved there. Plus, there are other aspects of civic life. The effects of a single person there can be hard to quantify (see the duty to vote book) but it adds up as a whole. I'm concerned like Breyer with educating and furthering civic enagement.

Not sure when it occurred, but at some point in the last few weeks the Supreme Court updated its website to provide links to webpages that are cited in opinions. They post downloads of the pages to avoid dead links. They also announced, at least for the October sitting, that they will continue telephonic arguments. These arguments were appreciated by many people as promoting openness. On that front, I think more use of the page to post speeches and appearances (such as the Breyer one) would be ideal. Opinion announcements. And, perhaps recognition by Roberts during the argument that something different is going on.

Such things, including personal involvement by state supreme court judges, are seen in courts below. So, doubting this idea that protests (they don't need to release the video live; can edit) and security issues cited by Breyer. Not that this level of thing is necessary, but four women state judges (maybe inspired by Strict Scrutiny Podcast!) actually started a podcast to talk about state courts. Posting a video on the Supreme Court website introduced by a justice wouldn't be a bad idea though; not sure why they can't post a basic "intro" type video there. Like the one they play for tourists.

We are getting closer to the October 2020 term. They will soon have a long conference or whatever to catch up with all the petitions and stuff. The term is actually about two weeks away. Not sure how much time that is in Big V time.

History/Mary Ziegler Books

First off, I like the "legacy" blogger and repeatedly had issues coding in the new style.

I recently added a teaching website [a relative is a high school teacher and labels me "Joe" and "a historian" -- ha ha; well, I do have a BA in History and decades of self-learning ... I think it's fair] to the blogroll since I'm helping with the content -- the word finds and summaries. It is interesting, shall we say, condensing some terms into one line and topics into two pages. Also, some of the world history stuff is fairly new to me. I somehow (almost; hard not to toss in a comment about alleged racism) wrote something fairly neutral on the Trump.

Mary Ziegler wrote three books on abortion with the first probably the best about the decade or so after Roe, where there seemed to be room for some middle ground ("pro-family" as a legitimate label). Her latest seems more repetitive and not even covering some of that ground though a history (the "law" subtitle really covers that ground too) since Roe. The middle book explains how abortion overlap with other issues. I might have looked at it but don't remember it. She ends on a pessimistic note regarding the divide in place.

SCOTUS/Voting News

While various new Trump news dropped (including him telling Bob Woodward in February that Covid is serious and then lying to people about it), he released another list of possible SCOTUS justices. Some think it won't move the needle any more, people already locked in unlike the last time when it was a more potential thing.  Who knows.  As others note, the Dems should pay more attention to the courts.  Why exactly it is avoided so much, even low key things like tweaking ethical rules, is unclear.

There was an order list on 9/11, the last summer order, delayed because of the events.  Same nothing much, this time with a list of attorney disbarments.  This is from some time back, so don't know why it took this long to have her disbarred on the Supreme Court level (was it just a token bar membership for the prestige?), but here is a bit of one's problems:

James Moses, a St. Tammany Parish resident, died in 1977.   Shortly thereafter, the decedent's brother, Joseph Moses, who lived in Ohio, retained respondent to handle the decedent's succession and represent his four minor children.   Joseph Moses was appointed administrator of the decedent's estate and tutor of the four minor children.   Through the following years, respondent handled numerous legal matters connected with this succession and tutorship.   However, between April 6 and June 12, 1984, respondent, without authorization, removed from the succession and/or tutorship accounts a total of $97,000 by writing eight separate checks and depositing them into her personal account.

The lower courts also had two key voting rights opinions. First, a 2-1 ruling (SCOTUS refused to get involved earlier though Sotomayor put forth a wish that the matter would be addressed before the election) held that letting those over 65 vote by mail with reason during COVID is not a violation of the 26th Amendment. To remind:

The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.

The two judges decided that the rule here was a special additional benefit, not a denial of a right.  The special situation alone suggests the confused matter here.  It is like if a gate somehow is put up blocking people's ability to vote, but only those of a certain age is given the key.  The net result here is "on account of age" one's right to vote is abridged.  It is a form of hairsplitting to avoid this.  Guess it's nice to have a bit of 26A law though.

Ditto the due process and other problems with the perversion of a ballot measure to enfranchise released felons.  I still remember 2000 in Florida.  More of the fucking same.  We even have Judge William Pryor, who I recall the battle over, writing with Jill Pryor among the dissenters.  It is even more symbolic -- besides Pryor, the whole majority is made up of Trump appointees.  Deprivation of voting rights help elect Republicans (problems with the felony disenfranchisement law was a key factor in 2000 -- over time, history gets repetitive to observers) who put judges on the bench to uphold such efforts even when the people vote to temper the rules.  It is a sort of feedback loop.

There is also problems in Wisconsin, the state supreme court there again by an ideological vote fucking things up.  Is it 2021 yet? Someone, quite validly, on the anniversary of 9/11 noted that COVID is the most compelling moment of history in her lifetime.  In both cases, who runs the show is very important.

Let's never forget that.

Murdering Fascists in the U.S.? Don't Do it

Prof. Erik Loomis provides some good material, including his grave and labor segments, often mixing in some nuance. Also, push comes to shove, he realizes the need to support imperfect people in the real world. But, he also likes to talk like a tough guy, including tossing around "fascist" and the like. Fine.

Still, this talk of some "moral" right for this guy to murder people is immoral in my view. The critics might be easy targets but he sorta helped. His death sounds dubious though his own sister seemed to suggest at one point it might be suicide by cop. Oh. John Brown was an unhinged fanatic. I'm wary of the idea that some ICE agent should be labeled in dehumanizing terms. But, this crosses a line. This is not the same thing as questionable use of violence at some labor protest. Loomis is primping too much to see that.

Election/Supremes News

And Also: Sarah Posner's book  Unholy: Why White Evangelicals Worship at the Altar of Donald Trump notes evangelical support of Trump is partially a matter of him supporting them (in return for loyalty), but it's more than that.  Of special note, he is seen a strong man type who unapologetically attacks their enemies. 

His success also proves his bona fides as God's tool.  Also, she explains how for decades a racist, nationalist, anti-democratic (small "d") as well as strongly conservative wing of the right existed.  This also included support of foreign leaders such as Putin while being against basic liberal American values.  Trump is not new here, but is a George Wallace figure sought by some for years.  He also has shades of being a televangelist himself.  It is a good though dreary book but at some point it got a bit repetitive.

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The final state primaries (non-presidential) are this month, starting this week with Massachusetts.  (New Hampshire, Rhode Island and Delaware are later in the month. I'm not aware of any big races in those states that received national attention,)  But, to flashback there, that state was a rarity in that more than 10% of the Republican voters chose someone other than Trump.  In the end, that one Weld delegate was not heard from.

The notable thing for the state primary is that Ed Markey won the Senate Democratic Primary over Joseph Kennedy "other than being young and a Kennedy, no real reason to vote for me" III.  Markey was the progressive choice, including his support with AOC of the Green Deal. On the Republican side, Shiva Ayyadurai got forty percent of the vote as the conspiracy Trump candidate.  Also, one race underlines the value of instant run-off voting, the winner obtaining under 25% of the vote.

In Supremes news, RBG presided over a wedding. Also, after the Supreme Court struck down his latest trial, prosecutors decided six was enough. Curt Flowers is a free man.  Only took over twenty years. But, mostly, their summer break continued.

Donald Trump's Racism is America's Racism

Prof. Sandy Levinson comes off as a friendly sort though on his blog has had a more jeremiad tone that strongly lashes out against what he sees as glaring issues.  I think he lays it on a bit thick, but blogs at times are there to vent.  For instance, Reality Check (Rewire) used to have comments and some of them to me was a bit much. I understood the need to have a safe space, so to speak, to strongly state one's views all the same. 

Anyway, is one thread a Trumpy (BB) that shows a bit more nuance (bit of a trap, really, given how locked in he is all the same) than another (BP) basically refused to recognize our systematic racism. Even historically. Hey some older black athlete praised Trump. Must mean his racism is open to reasonable debate.  Compare this that provides some examples and argues Trump's racism is America's racism.  After all, he needed help.

One thing this piece does is share the blame. Trump is a particularly virulent form of something that taints this country.  As with other bad things, there are degrees. So, if something is bad (let's say a virus, which racism is in a fashion), it can be weak (like a vaccine) or strong. So, how bad Trump matters even if his alternative (and his party is corrupted here -- both sides aren't the same here, sorry) would be bad too.

The piece also suggests that it goes beyond how far the Republican Party itself has gone. On some level, it is broader than that. Even those who are not Republicans don't oppose him enough since on some level he is not completely foreign to our society. So, let's say, certain Democrats went to his wedding(s). Or, he is not seen as so totally improper (my example would be like if a cat ran for POTUS -- we wouldn't have horse race coverage here, so to speak, would we? it would simply be "hey, a cat can't be POTUS ... come on now!"). In so doing, society normalizes him.

And, part of this is that we are still a racist country, who even if we don't like it, accept racism is part of life in some fashion. And, then something really horrible happens, we are upset, but then let it keep on going w/o completely changing things to stop it from happening in the future.

Duty to Vote

The Republican National Convention with the usual incitement, bs (the use of the past tense to talk about Covid-19, Nikki Haley assuring us we aren't a racist country and of course the usual Trump lies), the "who cares?" Hatch Act violations etc. went about as expected. Toss in lax mask wearing and social distancing and even Tiffany getting into the act.  And, we still have cause not to be sure this guy won't win. This would include the Senate. It's fucking ... well can use a lot of adjectives there.

So, it's a timely moment for The Duty to Vote by Julia Maskivker (summary at link), a philosophical defense though it does not go as far as arguing it should be a mandatory legal duty.  The book makes a good argument though the philosophical (multiple references to John Stuart Mill) discussion as a whole was a bit much for me to read the whole thing.  But, the basics are clear-cut, you can read the intro and conclusion for a bit of a summary and skim to get some more details.

The author sees voting as a moral Good Samaritan responsibility because it is a limited burden with important overall effects.  Also, even if an individual vote is not a deciding factor, that doesn't mean one lacks a duty. Duties are personal as a whole and something like paying taxes is not voluntary because one person's taxes are not the deciding factor.  From what I can tell, also, she sees it basically as our duty as part of a society to promote justice.  And, not doing so causes harms, including let's say poor people not voting leading to clear policy effects.

Voting is particularly important for the good of society so that it is a special responsibility (including to limit harms, even if neither choice is great; ranked choice voting here can be helpful) even if one has a virtuous life (charity etc.) in general.  Also, she cites research that as a whole the average voter has enough judgment to make good choices. We do trust people (and she cites voting as a sort of public trust) that are not experts to do things, including on juries.  The very act of doing these things are also helpful learning moments and provide other positive benefits such as a means to express oneself.  This net helps voting be a positive.

One does have a duty more than merely to vote. One should vote fairly (not merely selfishly; toward a certain rational common interest, though she notes there are a range of possible philosophies there) and with some degree of informed thought.  Again, the average person has the ability net to judge, even if they are not experts.  There are burdens on voting, providing a sizable (partial!) list: poverty, political measures discouraging voting, confusing electoral rules, weak civic education, public official non-responsiveness to citizens and partisan propaganda campaigns to manipulate voters.  But, she believes such things can be addressed.  Is optimistic in the face of cynics of voting.

It's clearly an argument for these times, including its reaffirmation of the duty and possibility of each person to play their part without ignoring structural concerns.  

Summer Break SCOTUS

It took until August, but SCOTUS is seems to be on a summer schedule now.  The second scheduled summer order [ignored as such by SCOTUSBlog -- they even reported on something in it without noting the nature of the order list overall]  was dropped.  As noted at the link, the order involved oral argument time for the stupid PPACA case scheduled right after the election.  There were also rehearings denied, including one which for some reason Gorsuch didn't take part in.

The other particularly posted order [there are various actions that are found on the case docket pages not so posted] involved the execution of the only Native American on federal death row.  There were certain procedural concerns, but the main issue was that the Navajo Nation opposed the execution.  The feds found a way around the usual requirement about asking permission.  The latest is that the victim's parent now isn't against it though earlier there were reports she was.  He was executed.

There was an issue that came up again regarding a federal statute requiring the feds to execute using procedure of the state in question.  Sotomayor posted one of her statements, where she joins with everyone else but flags something, arguing the issue is a concern but this was a bad case to decide the question.  She and RBG earlier this year dissented from refusal to take the issue when it came up before any executions. It seems a tad outrageous a serious dispute is not give SCOTUS review before federal executions return after fifteen years, thus far more than that occurred since the 1960s (three executions vs. five).

A federal judge that earlier flagged concerns but was overturned had the same occurred regarding that fifth execution.  The link touches upon other concerns, including evidence of brain damage.  As to the safety of the drugs, an autopsy of one of the federal inmates executed suggests evidence of serious pain during the process.  This was one of the executions that with the help of five (three justices) was rushed, blocking normal appellate review that would have simply taken a few weeks.

Anyway, for whatever reason, it doesn't look like the second inmate's lawyers appealed things to SCOTUS -- he was executed without any order being posted. Meanwhile, I read The Enigma of Clarence Thomas, which argues he is a black nationalist among other things. The author wrote other stuff on conservationism and notes he personally opposes Thomas' ideology.  It is overall an interesting book, showing wrong or not, he has a complex ideology that is not just mainstream conservative cant.

Trio of Trump (and now the RNC!)

Another coffee boy/chief strategist (Steven Bannon) was arrested for fraud related to some wall related b.s., which is logical since they are along with being simply horrible, a bunch of grifters. And, the Senate Intel Committee released a final section (around 1000 pages here) to add more on how fucked up the 2016 election is while Republicans publicly try to handwave it while endorsing Trump for re-election. Hell with that party.

Yes, the whole thing pisses me off. The impeachment should have been broader but to me it also was basically a representation of wider things. The thing happened this year! Meanwhile, the mail continues to be at risk. Seriously. A thing that stands out here, that gets lost (there is so much), is that the Trump majority postal board here have seven year terms. Even, if somehow, the postal chief is pushed out (how?), you have the others.

Convention Recap

I wanted a woman nominee. I did get a veep.

But, going by what we need right now vs. what we (I) want, Biden is the right choice. He is a experienced reassuring presence while still being a median Democrat who will not interfere with basic policy there. The virtual convention was a tad too much on Mr. Empathy (the thirteen year old with a stutter introducing him is hard to resist) and should have said more about reproductive liberty (which can be framed as a matter of conscience) and the courts (why can't the Dems do this?). Still, overall, great job.

Meanwhile, I thought rain was the reason, but it turned out the Mets did not play because of a positive COVID-19 test or two. This delayed the Subway Series. Testing looks good now, but -- and this should be noted by reporters who cite it -- there is a few days incubation time. Maybe, up to a week. So, is it really a good idea if they play Tuesday?

Primaries Continue & Dem Have A Convention

A witness requirement was waived for COVID-19 reasons as the government in Rhode Island agreed to a consent decree on the matter. This settled it for (one assumes) Roberts at least with the High Federalists still wanting the Republicans to have a stay. The difference, the Court actually explaining themselves a bit, is that the state wasn't challenging.  Meanwhile, not clear if the Biden Administration would take the same approach in a case that required an amicus.

Puerto Rico had trouble in its local primary, requiring another try.  And, Alaska, Florida (House alone) and Wyoming had congressional primaries.  Plus local ones; Alaska has a little wrinkle where Democrats and Independents welcome all comers while Republicans only welcome their own and undeclared/non-partisan.  As before, the final results might take time to arrive.  We shall see how that works in November. Also, some of these races have a lot of candidates. This is where a form of instant run-off voting would be a logical move. 

First, the Democratic National Convention (virtual) started on Monday night.  There is some grumbling that a convention doesn't even make make sense any more, at least this year.  I think it useful to have a chance for various campaign types to have a chance to meet together, even if it is virtually.  The first night was a bit hokey but had some touching moments.  I think it was fine to toss in Kasich -- yeah, you need to bring in independents and Republicans (Susan Molinari? wow -- flash from the past; pol from Staten Island). It was just a moment after all. Michelle Obama had a great speech with a "vote" necklace on. 

Here's some coverage of the New York delegates.  One political website estimates the split in New York is 220/54, between Biden and Sanders, other delegate count sites delaying a final count. There are also those two delegates in NJ.  Finally, it looks like Biden received all the delegates from Connecticut.  And, here's a bit of a surprise -- in Connecticut, with 90% or so of the precincts reporting, Trump actually has less than half of the votes! Over 35% of the vote is uncommitted, another 15% or so for the perennial Roque guy. Around 147K votes so far.  Good for those voters.

And, the latest is Cindy McCain will endorse Biden. 

ETA: Tuesday had a fun role call and basically it seemed that only Biden and Sanders had delegates, plus they did not match the estimated or whatever breakdowns. This is partially since superdelegates (who were included on the first ballot) were mixed in, but perhaps other things. Sanders, to take an example, had a delegate from D.C. now. Also, no Bloomberg from Puerto Rico.  

Books

Read a couple of books again -- library is open to some degree but only some of the books coming. The Zimmerman Telegram is a Barbara Tuchman (also read The First Salute back in the day, referencing the first time the new nation was greeted as such) was a good crisp account of Germany's attempt to use Mexico (and to a lesser part Japan) to keep the United States busy. Fabric of Freedom: 1763-1800 is a decent summary of American history with some British flavor. Doesn't just follow normal narrative. At times, it is a bit too academic and the "color commentary" parts probably could have been condensed some.

Reading the new Bart Ehrman on heaven and hell; it seems a bit too episodic. Wanted a crisper narrative of the concept. Still has some good stuff.

Lesbians Come To Hallmark

Wedding Every Weekend is on some level a fairly ordinary Hallmark romance with the male lead particularly familiar.  The female lead for me is best known from her role in the Nine Lives of Christmas, which by the way was better than the book.  (The male lead there is nice on the eyes, if a bit stiff. Paul Campbell here has a nice ordinary guy charm, favoring snark, which at times is appreciably toned down.)  At least a couple of the supporting characters look familiar, a friend is a person of color (rarely is a lead; Meghan Markle had white parents in one of her two films!). 

Overall a pleasant if somewhat slow (which has charms) film of two people who fall in love (after meeting cute though he was somewhat rude, emphasizing his "not interested in a relationship vibe")  while going to a bunch of weddings.  The complication comes in the last twenty minutes or so, is a tad forced, but you know, it has to done since these things have a style.  This includes (a Faith Ford film where she is a long time widow is an exception) only having the kiss at the end.  The conservative nature of these plots (though the characters often some off as fairly liberal types and religion is rarely referenced) suggests why there was a bit of a thing when the channel showed a lesbian wedding in an ad.

Well, after getting in trouble for pulling them after one particular protest campaign made a fuss (unclear how strong the group was in numbers), they are apparently going in the other direction.  Lifetime will have a gay romance, following the usual plot lines apparently.  And, Hallmark will have gay and lesbian (trans? will see)  content too. Well, it already did. One of the weddings here -- just inserted without fanfare -- is of two women.  Other than noting how touching it was, the couple here loathe to admit deep feelings especially the guy, it went off as normal. It might have been a bit shorter than the others, but the couple had other scenes too.

No "shoving down your throat" stuff here. (Joke omitted.)  Just a natural part of the plot, a quite reasonable possibility when the two are going to a bunch of weddings one summer.  (I take in this was 2019. Will we have a Covid-19 film eventually?)   Hallmark has so many of these movies, often with more than one plot (these films often have a "B" plot, at times more), we really should have more diversity of all types just for variety sake.

Anyway, I appreciate the effort. 

The Last One: Connecticut Votes

I started this entry earlier, but the big news today is -- late afternoon -- the announcement that Kamala Harris will be Biden's running mate.  Good choice, and a pretty safe, expected choice.  There was some suggestion Susan Rice would get the nod.  Her diversity is seen by having an Indian mother (deceased), Jamaican father and Jewish husband.  The VP choice is of particular note since there is more likelihood that at most the main candidate will serve one term.  We also have the first black woman candidate on a major ticket, plus the first time someone west of Texas is on the Democratic ticket (at least once, a Californian was on the Republican ticket).  Let's win this thing. 

Though luckily, Kayne West skullduggery drama aside (maybe), they probably won't matter (knock on wood), there are third parties involved in the election. The last update missed an update in that area: the vice presidential candidate of the  Peace & Freedom Party (California) had to be replaced due to illness.  Now, I'm unsure what exactly are the tasks of a vice presidential candidate in a small third party that requires replacement of a "name" like Leonard Peltier (Native American activist).  Perhaps, it is as much as a public statement of his health and needs in prison.

Warren is not on the ballot, so the last primary is between Biden, Sanders, Gabbard and uncommitted on the Democratic side.  Perennial candidate Rocky De La Fuente and uncommitted are the alternatives to Trump.  Item among the Republican candidates in a House race: "Thomas Gilmer was arrested Monday night in connection with a “possible domestic assault,” the police said. He ended his campaign but could still win a spot on the November ballot."  Also, we won't have final results: "Mail-in absentee ballots postmarked by August 11 will be accepted by Connecticut towns until Thursday. Vote tabulation and reporting will continue beyond election night."  The Democratic Convention starts next Monday.

[I was told that Warren actually reached out and got her name taken off the Connecticut ballot, perhaps particularly concerned about a New England state. I am not aware of this done anywhere else though people might not do paperwork for states in many cases.  Connecticut was originally scheduled in late April so it is not surprising that the others are not on it.]

We have two thirds of the results this post-election morning but a sliver more than fifteen percent (split three ways, Sanders with 12%) voted non-Biden.  If this holds, Sanders will only get delegates if he won in a particular district (which is possible -- in one state, Sanders had a single delegate).  Trump at this point has less than 80% (Fuente has 7%, uncommitted the rest), which would be a record, beating out Delaware.  Let's see how that holds up -- respect Republicans who actually voice their dissent. I will check the delegate count on the first day of the virtual convention.


The most important thing for our purposes, this focused on presidential primaries, is Connecticut's postponed presidential primary.  But, along with Hawaii (Saturday), Minnesota, Vermont and Wisconsin, it also has congressional primaries.  And, Georgia would have a run-off as necessary (a few are).  Hawaii is notable as voting entirely by mail.* Also, Tulsi Gabbard did not run for re-election, thus Gabbard haters will be happy to know that a new person (probably Democratic, surely native Hawaiian, since both parties have one running) will fill the seat in January.  Meanwhile, Puerto Rico also had a primary (non-presidential) and had issues.  How about giving them the right to vote for President?

(As usual, there are a variety of local elections that get much less national attention, but remain important for the locals.  The one case that stands out: The Squad will likely remain together with Rep. Omar, like AOC and Tlaib, winner her primary last night.  She is controversial enough to have an opponent with nearly 40% of the vote. The final member from MA is the least controversial of the bunch, so even though her primary is not here yet, I think it is safe enough to say that. Also, on the other end of the ideological divide, this woman won in Georgia. They must be so proud.)

As an aside, it looks like we will have a re-match in my city council district, the original guy coming in from the assembly [which pays less!] to deprive a local POC woman the slot.  I was annoyed that he resigned his assembly slot for what to me looked like monetary reasons though can't prove it.  Later on, saw that he overall is a conservative blah sort in the mind of various people too.

It annoyed me too that it seemed basically to blanket the neighborhoods around here with campaign signs while she had very few, losing by a few hundred votes in what seems liked a winnable election.  Yes, that is partially on the opponents, but still seems a lousy way to select someone.  His slot in the assembly did go to a POC woman that seems to be doing fairly well, if not quite as activist as Biaggi.  Next year will be an important election, including a new mayor given the current one is a term limited. Doesn't seem like there is a presumptive favorite yet.

There is also a bit of relevant SCOTUS news: "For the fifth time this year, the Supreme Court set aside a lower-court order that would have altered state election rules in response to the coronavirus pandemic." RBG and Sotomayor dissented without opinion.  At this point, this sort of thing is expected, but the "shadow docket" does not clearly explain why it should be done.  Some "message" will be sent, to some degree, but whole affair is dubious on procedural and substantive grounds. 

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* The other states with that vote entirely by mail being Colorado, Oregon, Washington and Utah.  They are all not quite typical, which should factor in for those a tad too gung ho for everyone to follow.  Let it be noted that the general policy here is to allow people to drop votes off as well, including in special drop boxes, so it isn't really totally by mail.  But, they don't have the usual same day polling places deal. 

Perry Mason

A revisionist take on this character with the lead played by the Russian agent in The Americans (who did also play Mr. Darcy in a mystery sequel) is rather appropriate. Having watched most of it -- skipped a bit -- I think it was pretty good. If overlong. Think it could have been at least two episodes less. It makes sense Perry Mason is first an investigator since investigation is key to the usual stories. Characters work; would see additional episodes.

Two Books (and Supreme Court Update)

The Supreme Court was actually mainly quiet this week, except for another of a trend (Roberts didn't go along in a couple cases involving religious liberty claims) of the Supreme Court rejecting, often by reaching out to stop lower court actions, moves to adapt to the special needs of the Big V. This time, again without comment, it involved means to protect prisoners. Breyer and Kagan dissented. Sotomayor did so with opinion with RBG.

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How to Pronounce Knife is a collection of short stories by Souvankham Thammavongsa, who was born in a Laos refugee camp.  It is not surprising that the stories are dominated by Laos-American characters in diverse situations though focused on working class individuals. One story is about an independent CPA. The title story is about a girl whose father misinforms her on the pronunciation of "knife" and has a sweet ending.  The articles as a whole are bittersweet.  Overall, they are well written and recommended.

Godless Citizens In a Godly Republic: Atheists in America Life is a type of follow-up to the author's earlier Godless Constitution. It starts by discussing the invention of religious liberty, if with various exceptions.  Then, at first more as a symbol than actuality (Jefferson, e.g., was called an "atheist" but was a deist), how atheists were seen as anti-American. This was especially tied to anarchists and socialists.  We also see the political and social effects of disbelief in God, especially of a few key people.

A middle chapter to me is very important -- it discusses how certain people, especially Felix Adler (Ethical Society), attempted to find a way to join non-belief (or not active belief) in God and what is regularly seen as religions with the successful aspects (community, purpose, institutions) of the latter.  I personally -- as compared to some of the militant atheists -- find the Adler approach (including his resistance of attacking religious believers) valuable.  The book does not discuss Unitarian-Universalism, which today includes those who don't grant the existence of God, but that is an example to me of a "religion" that can be in place without God. 

(I think this overall useful approach is important and not just targeting some official use of "God" or in some disdainful way attacking religious belief.  This includes pick out, somewhat ironically, bad verses to target religions that in many cases are applied in humane ways.)  

The book wrongly says that the courts never struck down blasphemy bans, but does provide an extended discussion of "under God."  I find the idea that it is just "patriotic" or something stupid, especially when the purpose was clearly to say we are different since we believe in God.  It also notes that multiple states even today on the books do not only have state constitutional honoring of God (see also, the Articles of Confederation) but also specifically religious tests allowing one to bar atheists. Something now expressly unconstitutional.  

U.S. v. Seeger and other cases -- touched upon -- shows  a full respect of freedom of conscience includes those who do not believe in God.  But, how far should we take that?  This shows the problems of a strenuous application of RFRA since there are so many conscience based reasons to have exemptions.  The book flags the rule that religious based claims allow for exemptions in the unemployment compensation context.  That context has a range of exemptions so including religion makes some degree of sense. Less so in a range of other things.  

The book is only about two hundred pages so is not really a comprehensive work.  But, it is worthwhile.  One thing it emphasizes is that direct legal restrictions is not the only problem. There is a general harm when people who add to society are wrongly treated as outsiders or a threat. Their value and basic sameness in a variety of ways to others are ignored.  

August Election News

As we wait for the last presidential primary (Connecticut) and Biden to pick a veep, state elections continue.

We can update past primaries: in Puerto Rico, Biden received 36, Bloomberg 10 and Sanders 5 delegates; for some reason two delegates (121 Biden/3 Sanders so far) are not allocated yet for New Jersey and fifty-seven in New York. This is after six weeks and has been flagged as a major concern. Legislation and litigation pending. Again, both mail-in and in-person is important. And, Let the People Pick the President overall does a good job for the average person to promote the national vote compact [what about territories?] and the problems with the current electoral college approach.

Local elections continue with five states having various notables including the safer Republican (for them) choice winning in Kansas, a squad member winning in Michigan and Medicaid expansion in Missouri. The imperfect Affordable Act Cases Medicaid screw-up fix continues. Locals less important nationally are also selected in these primaries.

Election News: Céspedes elects not to play rest of 2020

"Yoenis Cespedes has not reported to the ballpark today. He did not reach out to management for an explanation and any attempts to reach Cespedes have been unsuccessful" pic.twitter.com/RHL4tXnUkE

— SNY (@SNYtv) August 2, 2020

Yeah.  No surprise.  Multiple people on Twitter apparently are new since they did not realize this sort of behavior is not atypical.  Recall his cut-rate salary this season (even less with a shortened season; given his ridiculously overpaid previous four years, this balanced things out somewhat) was a result of him breaking the rules somehow.  We don't know exactly, but he wouldn't have taken the big pay-cut out of the goodness of his heart. The guy was a flashy player for years, but that brought with it some arrogance and recklessness. Not showing up was not surprising in the least.

(His home run was the sole run in one of the Mets three wins so far, but overall, he has not been doing well early.  This as a DH.  He still, even coming back in the summer, was not 100%, including running the first base.  His injury history was one reason the Mets were basically competing against themselves back in 2016 though the rest probably factored in.) 

Being the Mets, the whole thing was reported in a confused matter.  In the middle of yet another loss (the rookie fill-in starter did well a second time, Diaz had a good inning after a bad first batter, but the Mets kept on leaving people on base), first we get he isn't anywhere to be found. Then, we get that there is no reason to think he was in danger.  This threw some on Twitter, seen as unjust to him.  He might be in trouble!  Like we know all that is going on.  Like he might have been kidnapped. That's the first assumption.  Come on.

Eventually, we get this: "Yoenis Céspedes has decided not to play out the rest of the 2020 season due to COVID-19 concerns, Mets general manager Brodie Van Wagenen announced on Sunday afternoon."  This apparently came as a surprise to the team overall.  Who knows. I personally generally get the idea upper management bs-es on a regular basis.  Anyway, have seen this guy as an albatross for years now.  While he was hurt, I wished they would let him go for some bag of balls. As is, it looks like they managed to get a sizable amount of money back this season. 

Without Céspedes in the mix, the Mets will give more DH reps to Dominic Smith, J.D. Davis, Robinson Canó and perhaps Pete Alonso, with Smith potentially playing first base on those days. No Mets hitter stands to benefit more than Smith, who has started just four of the Mets’ first 10 games despite swinging one of their hottest bats in Summer Camp.

Dominic Smith surely deserves it.  If Cespedes, as a DH, actually had something, he could have been useful.  And, cheap (about 4M!).  But, I'm glad to see him go. It's baseball, so you take all that jazz as part of the game. They are playing a kid sport.  A major problem I had though was that I think the team ridiculously overpaid him for limited moments of success.  Yes, he was great in the 2015 run.  But, people like Daniel Murphy also were very important.  They let him go, even though a hurt David Wright meant a hole that Murphy for not too much could have filled. Murphy rubbed some the wrong way, but he was there for years.

And, letting him go could be justified.  Cespedes less so -- it was one of many misguided "BIG" contracts that turned out badly.  He wasn't even there at key moments such as when they went for a playoff spot in 2016.  They could have used that money to get a pretty good bad PLUS someone else.  Or, heck, maybe just pocket the money. The net result was disappointment, even if he gave you a few moments to cheer. Like that home run that gave DeGrom a win this season.  His 2020 moment.

So how's baseball?  Okay.  Seems a bit strange with fake fans and all the rest.  The concern is the new situation still did not prevent a major outbreak, the Phils and Marlins only playing a few games.  Guess the logic here is that we can take a few chances, deal with some sickness [statistically, someone very well might die or at least have a serious lingering case or infect third parties]  in return for baseball.  Part of a wider whole in this society really, resulting in over 140K deaths. And, as was referenced in a part article, the rules are not consistently applied to them. That too is not atypical.

The Mets had a rough start that could be addressed, especially with a lot of scrubs coming (Orioles alone; they also play the Marlins and one figueres the Phils will struggle some too), but there are around fifty games left.  I think 2020 should be treated as a quasi-sesaon.  Do we really want to give a Cy Young to someone in the conditions?  It would be like giving one on June 1st or something.  Don't like the DH.  The rushed extra inning rule was okay.  Still rather it not go into place right away in the normal season.  I actually think the seven inning double header is okay.

The best constant, other than Mets drama, is Gary/Keith/Ron. Those guys continue to care, even in an exposition game.  Bad baseball plays bother them.  Plus, they have a light touch, especially Keith.  Gary is in one booth, Keith and Ron in another.  They also don't go on away games.  There should play with that somehow -- they are basically watching just like us.  Why not just do a game at home once?  We can see Gary's dogs and Keith's cat.  And, again, boring white sideline reporters bore me. Why can't they have a woman sideline reporter?  He seems a nice enough guy -- Gary Apple blocked me after I made one snarky comment and he comes off as a bit of a jerk -- and knows his job.  But, so boring!

Signs of Life

Someone actually sent me a question, thus suggesting people are actually reading this blog. The stats do show a few people do come here -- maybe a few click my profile at my JoePaulson2 Twitter or on a blog -- and not just for a post about a porn movie (though most seem to go there from search engines). I appreciate it. I will avoid covering the Q/A here except to say it was a constitutional question of the "depends" variety.

Summer SCOTUS Watch

It's summer, but we still are getting more Supreme Court news.

RBG had a minor procedure done and is resting comfortably. Joan Biskupic provided some behind the scenes stuff that for the Supreme Court is big news though the details to me are not too surprising.  We did get some new details, such as that early on the New York Trump financials vote was only 5-4 in support of the state.  Gorsuch as principled, Kavanaugh trying for a moderate "tone" makes me think they themselves could have been sources. OTOH, a High Federalist might not find that as appealing.

In the new platform language, Democrats say that Republicans “have undermined the legitimacy of our courts through an anti-democratic, win-at-all costs campaign that includes blocking a Democratic president from appointing a justice to the Supreme Court and obstructing dozens of diverse lower-court nominees. The Democratic Party recognizes the need for structural court reforms to increase transparency and accountability.”

We also have reports on the proposed Democratic platform as it applies to the courts.  The language is seen by some (Prof. Leah Litman, "wow") as striking though it is unclear what the details might be.  The first part makes some think about term limits or adding judges (a negative term would be "packing"), but the last part makes one think more of ethical rules or televised hearings / same day audio.  The article also flags the tone, contrasting it to the lack of a reference in the 2016 platform regarding Garland.  Also, diversity: 

Another section of the platform, to be released in the coming days, promises that Democrats “will nominate and confirm federal judges who have diverse backgrounds and experiences, including as public defenders, legal aid attorneys and civil rights lawyers” — another objective of progressives who believe that too many past nominees have corporate law and prosecutorial backgrounds.

Note that the district judge in the federal death penalty case (or one of them) that held up things temporarily was a former public defender.  On that front, another execution was scheduled for this month, a Native American who both his tribe and family of the victim opposes. So, at least three of as of now five (three executed) had significant issues, if not all of them in some fashion.  Biden has promised a black woman for the first vacancy, which one presumes will be RBG. Even Gorsuch has been flagged as promoting diversity, such as in Native American law.

And, there were two orders. The first underlines the importance of transparency and in theory might be something that can be addressed on a structural level.  The Supreme Court has repeatedly stepping in before regular order, so to speak, in various cases. The Trump Administration tried to do so in a notable increased number of cases; the Supreme Court accepted it at times, enough to bring forth some dissents.  There also was a rush in the death penalty cases.  Congressional regulation of appellate review perhaps can address this issue, including cutting off certain types of appeals before normal litigation processes takes its course. 

Sotomayor flagged the problem in a ballot initiative case this week.  Roberts for the conservatives minus Thomas (silent) defended the move. Note this amounts to a concurrence for four, not the Court.  We actually only know the result there -- five justices needed to agree to put the district ruling on hold.  But, only six justices (four vs. two; RBG joined Sotomayor on the record) explained themselves on the record.  It has been explained by justices and court reporters that we cannot presume that only two dissenters on the record in this case means a 7-2 ruling.  It's an understandable assumption.  Maybe, voice yourself on the damn record. Maybe, so require them to do so. 

The other involved the long battle over the border wall, which allegedly was not authorized by appropriations by Congress.  This would be a basic constitutional violation, but the Supreme Court opens up construction allegedly not authorized by the body with the job of doing so.  For some reason, the Supreme Court dropped the latest late Friday afternoon, perhaps because you know it took a lot of time for Breyer (for the liberals; the other five just rejected a request to stop construction until the matter is handled in the courts) to write a two paragraph dissent.  A lot of "transparency" there.

Breyer references his splitting the baby approach last July, the rest splitting in the usual way 5-3 in supporting a stay of the lower courts blocking contracts (Breyer was okay with that) and construction (not for him) while the litigation was pending.  The conservative five in a brief statement then spoke of "sufficient showing" though also vaguely referenced "among the reasons," without actually spelling them all out.  Such clarity in the "shadow docket."  Such need for transparency, really. 

The first set of summer orders will drop next week. 

ETA: As usual, nothing much seems to be there, though note the recusal of Breyer. A pending House bill would require an explanation. "Transparency." 

Big V and Elections -- Trump Related but Also Beyond

Most troubling of all, perhaps, was a sentiment the expert said a member of Kushner’s team expressed: that because the virus had hit blue states hardest, a national plan was unnecessary and would not make sense politically. “The political folks believed that because it was going to be relegated to Democratic states, that they could blame those governors, and that would be an effective political strategy,” said the expert.

We were a few years into the Bush Administration when I started this blog. A lot of content about the wrongs of his Administration (and Republicans) could be found in the archives. I also commented a lot over at Slate fray in particular, but that is no longer existing. Clearly, we have much anti-Trump content. But, perhaps not the same level of constant detail and analysis. No longer new. Trump is so blatantly wrong. More places to comment elsewhere.  Still, it is good to remember.

The excerpt above is referenced again in a post along with the death of a professor, who contracted the Big V earlier this year.  Note the time lag: months later, people still suffer, some will die.  A major problem here is that her university did not close shop until April.  New York received some criticism for waiting a week to ten days in March.  The problem is wide. But, yes, there is some special attention warranted for the head of the executive department.  Relatedly, national policy requires passage in the Republican controlled Senate.  They have their own issues, but also must factor in what the titular head of their party is willing to do.

(Stalin says at some point a list of dead is merely a statistic. The "merely" is his gloss and/or implication.  Still, 140K dead becomes more real with individual cases. One recent was Herman Cain.  It seems quite possible he contracted it at a Trump rally.  Or, if the timing is off, he very well might have spread it by being there.  The timing of his announcement that he had it actually might make the latter more likely the case. He's dead now. The state of others he might have infected is unclear, helped by imperfect track and trace policies.)

The President, not being known for thinking through anything, suggests this morning that the presidential election be delayed. Let's run with this hypothetical, shall we?

As noted, Congress has the power to set election dates, so if no one was picked by Inauguration Day, existing law would mean the House Speaker and then Senate Pro Tem  (as might be in place after Congress comes back in session in early January) since we have fixed terms.  In fact, really going with it, we might have a rump Senate with Democratic control.  As noted in comments, over twenty Republicans (including McConnell) are up for re-election in November.  This all is useful for academic interest.

The whole thing seems so stupid that one commentator argued the appropriate path is ridicule.  And, we had some.  Secretary of State Mike Pompeo might have passed the buck to the Justice Department, but even Republicans granted we will have elections on time. We did so during the Civil War with treasonous rebels in control of a chunk of territory.  It's true that the Copperheads were not in control of the presidency and Senate, but still.  One Trumpie in comments argued Trump didn't say he personally would delay the election, so this is just him "blue skying" in such a way that is triggering people who don't like him.

He added something about maybe Trump doing it to assure ballots would be counted by November 3.  Found this inane myself, but Mark Field (near end) actually gamed that scenario, arguing the net result could be to depress the vote and taint absentee ballots not actually counted on Election Day, something that is a policy in multiple places.  Note how the results were delayed in the primaries just for this reason.  Still, find that stupid. The thread itself tediously had a "stupid" tangent, including the idea that Britney Spears is pretty smart.  I am not making this up.

The tweet was not some sort of one-off.  Trump has for a long time been arguing that the election will be tainted, particularly because of the increase of absentee voting.  This was the particular nature of the tweet -- maybe we should delay the election, if that is necessary for accuracy. Just saying. That sort of thing.  The idea that only Congress gets to change the election as obvious should not lead us to think Trump knows that and won't try somehow to interfere with the date. It's Trump.

Vague open-ended comments of this nature deserve strong responses.  Plus, there is a general idea that for the "good of the country" or something, executives can do a range of things they don't seem to have power to do.  In fact, courts -- up to the Supreme Court -- has blocked attempts to loose the rules some to deal with the Big V.  OTOH, there repeatedly were major debates on the right path.  The obvious case there is Wisconsin.

Mark Field's comments -- including the important reference to the now Trump led post office -- point to the concerns we still should have about Trump here.  Directly changing the election date is not the only thing he can do.  As I myself said, the basic thing (and the Trumpie in his own fashion showed this in his own words) is that Trump is serving as a chaos agent to de-legitimizing elections.  He has direct powers to do this, or at least to try to do so (his latest is to not count undocumented people for purposes of apportionment), but also indirect means.  Lack of trust in the election system, especially if this election turns on a fairly close count in a few states, is dangerous.  Republicanism includes an overall ethos accepted by the public at large.  And, again, distrust can influence his own actions.

John Lewis (RIP) noted democracy is a state of mind.  It is not just voting, but an ethical state of mind, that has to be developed and reinforced. This also follows from individual liberty. So, liberty is not just majority will, but things that are protected to create republican citizenship.  Justice Douglas spoke of the importance of privacy here (see, e.g., Poe v. Ullman).  An op-ed by one of the people that makes NYT not just a bunch of idiots compared Lewis with Trump, citing an important philosopher:

In “The Ethics of Democracy,” an 1888 essay written while he was teaching at the University of Michigan, Dewey described his expansive vision of democracy. Against contemporary skeptics who saw democracy as little more than simple majority rule by ignorant, isolated individuals, he argued that we should understand democracy as “a form of moral and spiritual association” that takes “personality” — meaning individual potential — as its “first and final reality.” Democracy recognizes the “infinite and universal possibility” within each person and seeks to foster its expression, not for “mere self-assertion” or “unregulated” desire but for “an individualism of freedom, of responsibility, of initiative to and for the ethical ideal.”

Trump is a type of active virus against this sort of thing. He is being a "chaos agent" to chip away at the trust in our nation's institutions.  Trump could and probably should have been impeached for a range of things. But, the House chose to select something specific, an attempt (far from a one-off, and this was specifically noted) to interfere with our election. Relatedly, his interference with congressional efforts to investigate this.   So, though he has a lot to answer for, given his current role, there is something especially nefarious about all of this.