Division Round: No Upsets But Some Drama

The match-ups this week were basically two mismatches and two more even games, one with a ready theme (the two old pros). The Packers early on looked to have things in control, but the Rams managed to keep things close. Until Packers sealed the deal in the 4th and the Rams could not even get one of the TDs back. But, pretty good game for over three quarters.

Then, we have another shot for the Bills to blow it, this time versus the Ravens. This was more stressful for me since the Bills were one of the teams I wanted to win (though neutrally, an upset would have the usual underdog charms). The conditions made kicking field goals problematic (various attempts, one made). It was a 3-3 game at the Half, after a quick score at the end by the Ravens. This reflected the last Ravens play-off game that ended with a 10-10 score, partially off a Ravens turnover. The Ravens defense again important along with Lamar Jackson.

Then, the third quarter was two long scoring drives. First, the Bills. Then, the Ravens ... until intercepted in the end zone and it was 17-3, Bills. The ill fates have hurt the Ravens too, and did so here with Lamar Jackson then getting hurt. Near the end, his back-up got near the goal line, but four attempts didn't make the eight yards. But, the Ravens kept at it, the game ending with a roughing the kicker during a punt letting Bills run out the clock.

I admit that I wasn't watching the second part, though I did watch a lot of the first. Basically, people are already predicting a Packers and Kansas City Super Bowl though the Rams were in it until mid-Fourth Quarter and one of the old pros beating them is possible. The Browns didn't seem much of a barrier to KC, even with their great first quarter last time (recall Kansas City had a big defecit last year and soon it was a laugher the other way and you could see them going for it on 4th and 1 last week unlike the Steelers and win in the 4th). Note to that the quarterbacks for the Browns, KC and Packers are all in insurance commercials, Baker Mayfield having more of a role in a series of Progressive ads. Rodgers has been in one or more past commercials too.

Kansas City went ahead by two scores and then 16-3, but the Browns had a shot late to make it 16-10 and getting the ball in the 3rd. Browns fans basically predicted the fumble into the end zone, which by rule is a touchback (KC ball). A dumb rule. The ref, however, missed a rather clear (everyone but the ref seemed to see it) if unreviewable [the fumble itself was reviewed], helmet to helmet that was a major reason for the fumble. Again, at least at the goal line, that too seems like a dumb rule.

KC ended up tacking on three. The ref probably was focusing on the ball crossing the plane, but it is unclear me how you miss that. It's one of those human but oh so aggravating change making calls that make certain games so painful. The Browns were big underdogs, but that seemed like their chance to at least make a game out of it. For me, such moments ruin the game in question for me. I realize the human part of the game. It is equal-wise human to think something like that ruins it.

The game was tainted, even though the Browns came back close, helped by Mahomes leaving the game with a concussion (he already seemed to have a bad foot). The game ended with the back-up nearly icing it in the closing minute and a half on third and long on a run. Then, Kansas City being THE MAN, they couldn't just punt (Browns needing a TD) or even a sneak (it was inches), but at midfield, went with a pass. To ice the game. Game still tainted and I'm so f-ing tired of these people. But, it's the Browns. Them actually winning is against the rules or something. The game developments didn't change that the Browns was robbed of a TD or at least a FG shot. In a game they lost by five.

Pretty Boy not being on the Pats any more as well as Tampa actually having ups and downs this year made me less bitter about the possibility of success. Giving Tampa a shot was fine. I have no big dig against the Saints really. And, either is a decent match to the Packers if they have good games. So, not a big concern for me really who won the night game. Some enjoyed the match-up, which is fine, but didn't really care much.

So much I will end it here. Go Bills. If KC wins again? Won't watch Super Bowl. [Tampa won though it was 20-20 fairly late. Saints turnovers killed them.]

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As an aside, it was reported that Porntube scrubbed its site of many videos after some sex trafficking allegations made them wary about best practices. A few popular links on this very blog talks about soft porn content so it might be noted here that a quick look of my own suggests the effects. Various videos I found particular interesting, shall I say, now are down, with various comments (a reference to guidelines, simply that the content isn't there, removal by request of people involved etc.). I don't know how useful this all was but as with many things there is a need to regulate. And, this includes sexual content.

Final Countdown

We are in the final countdown. I watched a special showing of Loving, about the interracial marriage case, the day the current Occupant -- the pure form in a sense of what the Founding Generation feared in that role -- was sworn in. A lot has happened since there in a way though not so much in another. Time goes somewhat the same for me personally and many others, if now wearing masks and so forth. Such is life.

I wanted a woman POTUS and as the saying goes, there is what you want and what you need. So, Biden (who in hindsight seems a clear fit for the times) and a woman VP and President of the Senate. Not quite there yet though now seventy-two hours away. Action occurs elsewhere with impeachment and a major dissent from executions at the Supreme Court. Fear of protests today have been cited, noting "Q" is the 17th letter (so absurd, but fitting for that absurd if dangerous group).

We still await for one more shoe to drop since since the 1/6 insurrection -- more and more details arising -- Trump has in effect gone in hiding. With one more lash out, helped by Twitter cutting him off. Still, a rather quiet ten days. We shall see what turns up, perhaps MLK Day again making the last thirty-six notable. (Reports of pardons on Tuesday.)

The Old Maid

After she gives up her girl, the film turns in my view, but The Old Maid has a strong start.

The TCM intro discussed how the stars didn't like each other, in part because Miriam thought Bette had an affair with her husband (looks like they were on the road to divorce). One thing that stands out for me is neither is really what I would say is traditionally beautiful, known particularly for their force of will. Bette Davis also has those large eyes. What big eyes you have, Bette.

Bette Davis (this seems to be the case in the other movie the two were in together, also on TCM, but didn't watch) plays the more attractive character (personality-wise) though once she has to give up her daughter, she becomes an "Old Maid" and one who has lost her vitality. This helps make the later part of the film unpleasant, since the two evenly matched characters clashing makes things more interesting. The cousin finally reveals Bette is the girl's mother near the end and she doesn't really seem to react that much. Over twenty years and the grumpy one is my mom? Okay.

One charming bit is the flags-- one would be pretty clueless to miss it -- that Bette has had an illegitimate child. First, we have her coming back late alone with the guy (who conveniently later dies in the war). [Note: did her daughter also have premarital sex? After all, it was the 1880s, a freer time by then! ha ha] Then, there is a conveniently aged girl she is particularly close to, and she went West "for her health." Her doctor (who unlike other characters curiously doesn't age) turns out knows the real reason, but the family conveniently has health issues too so it was not too suspicious.

Anyway, Bette before her own wedding tells her cousin about the daughter, and the cousin bitch-like insists the husband-to-be needs to know when she finds out the father is her true love. But, the cousin decides just to say Bette is not healthy enough to marry, though Bette thinks she told all (the guy vaguely "letting her free"). She later finds out when going to see the cousin, when the cousin's own husband has a deadly fall. For some reason, maybe it is more clear in the book, though pissed at the whole thing, she consents to live with the cousin who is raising the daughter as her own. Melodrama!

Again, Bette Davis' character being old and bitter (if age-wise, in her 40s, one guesses) is not really great film in my view. Of course, she is all saintly and on the daughter's wedding eve (where the mother is to tell her the facts of life), she doesn't tell her the truth. But, we have a sort of happy ending. 

Anyway, so many films out there to see, including classic films on more than one channel.  Like, there were multiple Thin Man films -- which back in the day I saw via videotapes from a specific library  -- but now are more easily seen along with a bunch of others.  A bit overwhelming on some level.

Supreme Court Watch: More Executions etc.

The Trump Administration, Barr or no Barr, wanted to get in three more executions.  Back in December 2019, the Supreme Court wanted "appropriate dispatch."  Only two (RIP RBG) later wanted to take a case involving proper statutory rules that have split the lower courts. And, then the "hurry up, hurry up" (to quote Breyer's latest) began last summer.

There were multiple issues (procedural, competency, COVID) involved in the latest trio, as seen by set of four orders handed down throughout the day and late in the evening to smooth the way for the execution of Lisa Montgomery.  As usual, there were other concerns that in a fairer system would be dealt with before we reach the Supreme Court as well. For instance, even if a case does not have a legal reason to block an execution, sound policy very well might warrant it. Multiple times, serious concerns that might not reach the extreme level of constitutional error in each case, have arisen to at least warrant no execution. The justices here at first denied a request unanimously, but later a 6-3 split (usual suspects) arose.

Since no justice actually explained their reasoning or what actually was involved in all of this, see this and this SCOTUSBlog summary. The second is for Corey Johnson, two final appeals [Sotomayor/Kagan for one including competency; all three liberals for the other, concerns about executing someone with COVID], again no comment. In that case, we also have the long on death row thing popping up. And, the same split for Dustin John Higgs,* the last person executed (one hopes) by the Trump Administration. This time Breyer and most completely Sotomayor writes a dissent, one that is basically for them all. The majority, even though they reached out to overturn a stay, which by rule is extraordinary (if not quite by now by practice by SCOTUS), did not explain itself. 13 executions in six months, after 3 in around sixty years.  

[The last Supreme Court order dropped around 11PM and he was executed a shortly after 1AM.]

Before the first execution was finalized, we did get some writing regarding a lingering case involving a FDA requirement to get an abortion pill in person, which a district court overturned. Before Barrett, the Supreme Court (with Alito and Thomas dissented) punted. Now, a bit gratutiously since Biden very well might just change the rule, it overturned the stay as litigation continued. Roberts alone said he was just doing it in following his previous rule of letting the government have a lot of discretion during Big V.  So, again, a majority acted in "because we say so" manner. This is wrong, especially in a hot button case. Breyer simply dissented. Sotomayor (with Kagan) went all Sonia from the Bronx.

What the rest "truly" thought is unclear, though a chill wind blows. As Linda Greenhouse noted in her recent column (dropping that Sen. Hawley, a leader of the sedition caucus, was a Roberts clerk): "the justices voted 6 to 3 to grant a bold administration request to skip the intermediate appeals court and lift a district court order that enabled women who want the medication that causes an early abortion to get the pill without an in-person visit to a medical office." They did this repeatedly, a part of faux minimalism that is as common as short opinions these days.

The Supreme Court also had a single full opinion, a unanimous bankruptcy ruling by Alito with Sotomayor concurring to be concerned about the effects of denying a person of their car. We await a Barrett opinion, she not taking part in this one at all. 

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* SCOTUSBlog noted in its summary that the final dispute here was technical.  It is to be noted that Higgs had other arguments, but they were dealt with in before cases.  

Due process can be technical and here there is an important principle in my view -- a federal law was passed providing the rules on how an execution should go.  It follows the law of the state involved, another one designated if the state does not have a death penalty. This respects federalism and local option, which is not trivial.  The problem here was that in the middle of things the state involved no longer had the death penalty. 

The district judge, making sure to note (though coverage of the case makes this unclear) that he is clearly guilty of a heinous crime, said the result was that he as a judge had no power to change the procedure given the law in place.  Clarity on the meaning of the law in question was one thing SCOTUS refused to grant cert to address (for whatever reason, Breyer and Kagan did not join the other liberals to force the point near the end of last term).  Sotomayor flags this as something worth a "few weeks," but at this point, well, you know what that would mean.

But, such things were a bit less clear last summer.  What should have happened was the Trump Administration should have started a year earlier, giving the Supreme Court time to review things. We would have had executions with some more due process. For whatever reason, the Sessions Justice Department did not do that. 

Trump Impeached Again

This time, there were no witness interviews, no hearings, no committee debates and no real additional fact finding beyond the public record and the plain facts of the brutal attack and Mr. Trump’s words.

I won't provide an in depth discussion here but think the House Judiciary Committee Report (some love to Nadler, who was wrongly belittled last time over Schiff) provides a good summary. The ultimate votes were comparable number-wise, basically the seats the Democrats lost balanced off this time with ten Republicans joining (including Liz Cheney, who has a high position in the caucus). Four did not vote. All Democrats (three in some fashion did not join in either or last time) voted to impeach.

I saw one law professor very concerned about the trend of the debate including not enough focus on the Georgia call. We can't focus on minutiae in that fashion. The actions on 1/6, a good basic summary provided in the report, is obviously what is most blatant. Plus, the impeachment count itself covers that. A single phone call, which the report underlines isn't even the only thing he did regarding Georgia, is not the money shot here.

Also, immediate action is appropriate. If anything, I rather they have started last week, but government is often about delay. So, we delayed for the weekend, starting the process on Monday. Tuesday provided a chance to formally ask Pence and the Cabinet to use the 25A (Pence said "no" before the vote, mixing somewhat credible with partisan shots) with only one Republican going along with that. It is fine to put that on the record. This set up the impeachment vote the next day.

McConnell won't bring the Senate back early to basically give Democrats a shot to ask for a quickie conviction. So, basically, we will have to worry about what Trump will do for another week or so. I question, though sure go ahead and look into it, if any actions can retroactively be blocked via the 14th Amendment insurrection provision. But, with the Democrats soon to be in control of the Senate, and the different situation as a whole (not sure how much that would have affected things, but it might have even with Republican control), an actual full trial is possible.

I think more could have been included last time in both an "impeachment investigation" and the counts specifically. It still bothers me. But, this time the count to me is okay. Could you have a second count tied to the Georgia call, basically a catchall perhaps for all the election related stuff since the election? Sure. Still, I think this way factors that in too while focusing thing on what everyone really cares the most about. It is not ignored. The trial can and should address it. But, this is fine for me.

There is a long way ahead, including trying to investigate just what happened. The early returns are very troubling. This includes this quick look at multiple actors, inside and out of Congress, who helped incite the rioters. It include at least acts of negligence by members that should factor in when censure, fines (including for refusing to follow new rules involving metal detectors) and yes even expulsion votes. I doubt there is a supermajority to do that, but it should be on the record. People and businesses already are starting to strongly distant themselves from those involved, including with serious financial penalties. Just moving on, even if Biden rather it be so, cannot be the watchword.

Also, ultimately, we must focus on promoting policy and alternatives means of government. The majorities might be thin, but the cause is just and wind on our backs.

SCOTUS Watch: Orders

Tom Goldstein of SCOTUSBlog (again) wants SCOTUS to provide a substantive rejection of the abusive electoral litigation that gets to the point that serious claims have been made the lawyers involved should at least be sanctioned. It also is part of a wider whole that rejects the sanctity of the presidential election, leading ultimately to an invasion of the U.S. Capitol. Reports are that more protests and possible further threats are possible, up to the date of the inauguration.

SCOTUS has not done this. They did provide (as I noted earlier) a quick rejection of a request to hold in abeyance somehow Pence's acceptance of the electoral count. This was done on the next day (1/7) via the usual "denied" type order. Other electoral litigation requests was rejected as part of the Monday orders in similar fashion. A quick response in a Big V religious liberty (alleged) dispute was also slipped in there. Thomas also agreed with a rejection of a clinic buffer zone case for procedural reasons, but aimed to address the situation as soon as possible. And, given recent case law and personnel, he might get his wish. A big abortion case continues to be pending.

As we have a few oral arguments this week, filling in later slots was handled on Friday. The Court waited to around early evening to do so, but granted fourteen cases. Nothing that hot button, but do have a pair of notable First Amendment cases, one involving the reach of the school over off campus speech and one on disclosure rules. We also seem to have our first Big V case getting full court treatment as compared to shadow docket treatment.

We will see how the federal executions scheduled this week will go. Also, how the pending second impeachment will go. I'm sure Chief Justice Roberts might be interested.

84 Charing Cross Road

 

A bit of break from the political craziness and football, we have this old gem. The TCM intro noted that Mel Brooks bought the rights as a birthday present for his wife, the lead Anne Bancroft. I read the little book version too. Among the charming supporting cast is Mercedes Ruehl, who later on was also in the charming Loving Leah.

Wild Card Weekend

COVID costs helped push the Mets owners to sell to Steve Cohen, who is already getting popular directly engaging on Twitter and with some picks. Probably in part, if not only for that reason, for what he brings, Marcus Stroman took the qualifying office. The price tag for a year wasn't chump change either. After getting a serviceable catcher (James McCann) and a new lefty reliever probably to replace the one they have (Trevor May), a big deal: superstar Francis Lindor (bye bye other shortstops) and a #2 starter (Carlos Carrasco). They probably need at least a middle range OF and maybe an infielder but already had quite an off-season.

Okay. Time for football. There is an extra wild card team, so six games, three each for Saturday and Sunday. Next week the bye teams will play, so there will be four games. The traditional role for the Bills was to blow it. They almost did, including losing over twenty yards while driving to add to a three point lead. But, the Colts committed enough mistakes [probably including not kicking a FG late in the first half; didn't help to miss a mid-range FG, especially when you lose by three] for the Bills to survive.

While we hope the Bills got their nail-biter out of their system, let's check out the other two games on Saturday. Seattle might be a #3 seed, but repeatedly -- losing to the Giants doesn't help here -- looked off. They did here, the Rams early on needing to go to their "emergency" (regular) QB, pins in hand and all. He didn't do that well, but good enough, a turnover later in the 4th basically sealing the deal.

The night game had Pretty Boy v. some guy with around one start (which he didn't finish; one of the many no more Washington QBs relieved him ... both then on another team). He actually did rather well, that being the fourth or whateve QB with a lot of vowels in his name. He even was able to keep it within one score for one final drive though his team's vaunted defense didn't have much left by the last quarter. So, the end result was as expected, especially if one figured maybe "regular" QB (Alex Smith) of late started instead. XP issues by Tampa made that last drive possible.

So, Bills, Rams and Tampa. Let's deal with Sunday, starting with the best matched duo, Ravens (had a tricky run especially with COVID but finished in dominate fashion) vs. the Titans (sealed the division with a late FG). Titans with a quick 10 helped by a Lamar pick, but then (helped by Lamar running from midfield for TD), it was tied. The Titans defense gave up another ten points, but pretty low scoring game. Titans, however, did little scoring -- getting only three more points. Advantage, Lamar Jackson.

The Bears/Saints game was on both CBS and Nick, the latter with their own booth including a teen girl Nick actress along with some Nick gimmicks (including Young Sheldon popping up at times to explain penalties). It was a pretty nifty thing and something I say they should use again -- nice way to bring in the younger crowd. On the other hand, the game itself wasn't great. The Bears defense kept it close, but the Bears offense was putrid. They couldn't even cover with a garbage time TD, occuring the last play of the game. Thus, no two point conversion attempt to cover the spread.

The series of mismatches continued basically, if in a surprising way. After last week's barely win vs. back-ups, you would think the Steelers would be favored, particulary in their home stadium. Plus, unlike the Steelers, last week's game was a necessary one for the Browns. Still, the Steelers are flawed enough and Browns good enough to have expected a good game. And, then the Browns were up 28-0 by the end of the first quarter. 

Perhaps, to satisfy Browns fans who have long had disappointments, it wasn't just a laughter. The Browns did keep on responding -- such as when the Steelers finally scored near the end of the half -- so it never got TOO scary. Still, they won 48-37 and the 35-23 score at the end of the 3rd Quarter might not have pleased some fans. But, after after trading punts (4th and 1, PUNT -- after a delay of game -- probably didn't please Steelers fans), the Browns scored. Still, Steelers was around mid-field there and could have made it sweaty. Kansas City probably would have won.

So, pretty good outcomes, the Washington game basically "such is life." Rooting for Bills, Browns and guess the Rams (eh; they are facing the Packers and though I'm generally for the underdogs, have no big beef for the Packers).  I'm honest enough to say Tampa/Saints is a good match-up sentimentally and probably as a game, but not too excited for either. I actually guess I'm happy for the Bucs, though still no big fan of Pretty Boy. Except his talent.  Won't let him taint the team here.  Anyway, Bills the best shot to advance though the Ravens are a tough team. Upset possible.

Beast With Five Fingers

Good Svengoolie movie, well acted (including Peter Lorre and Alan Alda's dad) and a nice sense of place (if on some level clearly "once upon a time ... in a movie"). Turns out to have a psychological angle with a touch of Scooby Doo at the end to explain one mystery.

Ranma 1/2

 

After reading the author's first big manga hit, I checked out a couple more from the library. This one is amusing, though by the end the multiple switching characters gets to be a bit much. The collection I have (Parts 1 and 2) ends as a new storyline begins, but the over 300 pages is a satisfying one without more.

NYT: "Electoral Count Is Completed Despite Mayhem Incited by Trump"

I fell asleep around two o'clock in the morning and the finalization of the 12A based count of the Electoral College count had some time to go. Why? Oh well, even after an invasion -- first time since the Brits during the War of 1812 -- of the U.S. Capitol by "insurrectionists" (as called by people like Mitch McConnell, while also raising possible 14A implications), House Republicans kept up with a challenge of Pennsylvania electors. A senator went along to get us there, but the U.S. Senate (unlike for Arizona) waived the two hour debate period. Also, less senators (including loser of the Georgia Senate race, BOTH going to the Democrats while we nail-bit into the morning of 1/6) went along afterward, limiting things.

In request dated yesterday, Rep. Gohmert and putative Arizona electors requested Alito or SCOTUS itself to grant an "administrative stay against the Vice President’s invoking the Electoral Count Act’s dispute-resolution process." Rejecting, at least for now, another argument for a more substantive rejection, the Supreme Court today (after the fact) rejected relief without comment. For completeness, SCOTUS also dropped a press release about the next set of telephone arguments and the retirement of another official.

This continual litigation is a mixture of farce and danger. Rick Hasen, the Election Law Blog guy, calmed people down about any of those things actually leading to success. The whole thing was ridiculous, including the basic fact that even if you accepted the Art. II "legislature only" argument, there wouldn't actually be enough votes in question to change the result. [The argument very well might have five votes at SCOTUS, but it would change the current law, while also causing various problems since it would hurt addressing various needs.] But, the long term distrust of the system -- Hasen didn't like Stacey Abrams (what will she do next?!) refusing to fully concede in her governor race too -- was something he is quite serious about.

The distrust of the system and allegations of fraud and irregularities was behind the challenges to the electoral count. The breadth -- a majority of the House Republicans and multiple senators (Cruz, Hawley, Kennedy, Lummis, Rick Scott, Hyde-Smith, Tuberville, Roger Marshall of Kansas) -- and support of Trump underlines the difference with some token effort like in 2004 or support of only a small subset of House Dems in 2000 and 2016. It also was behind along with whatever guides such miscreants the attack of the Capitol, with Trump praising the protestors and Hawley shaking his fist in support.

If there aren't lawsuits, the Democrats should have control of the Senate (50-50 though they are quite open for someone else to join the cool table) by the end of the month or maybe early February. It is amazing that the Democrats won both raises in Georgia, including a black minister and young (33) replacement for the full term seat. This allowed Biden to move to appoint our old friend Merrick Garland as AG, having reasonable hope that the key D.C. Court of Appeals slot won't be open indefinitely. As with Supreme Court, I like him in that slot. He has long experience and is a no drama hire while other great choices were chosen for supporting positions. Plus, I have no idea that he will be "soft" in going after the Trump Administration or in other ways.

Pence and McConnell was firm that the election has been decided and the attack of the Capitol was outrageous. Neither, of course, actually put the blame at Trump's hands though some other Dems did. There are also a lot of questions about just went down, including how the Capitol was invaded. What if they had guns and bombs and used them? We need to find out before, somewhere down the line, worse happens. And, people will be all like "who would have known?" The Trump people jumping ship, even Sen. Toomey (PA) against the challenges kept on saying he wanted him re-elected, should have.

For now, the Congress -- after completing its duty at around 4AM -- will not be in session (except for brief pro forma Senate sessions) until the Inauguration. That is wrong. The House of Representatives should impeach Trump or at the very least be in session if something comes up. The usual suspects drew up impeachment charges related to the Georgia phone call and incitement of the insurrectionists, new member Cori Bush also supporting expulsion of those who supported the challenges. There is also a lot of 25A talk, even National Review finding President Pence appealing.

A wounded animal is dangerous and a lifetime ban from office would be a good symbol, especially for acts after a failed re-election. Either way, a line was crossed yesterday, including by the Republican enablers. 

ETA: Twitter did ban him and when he tried to whine about being blocked via his official account, deleted it there.  Pelosi is open to impeachment, Pence not taking her calls on the 25A.  But, McConnell is all "oh well ... we settled on only pro forma sessions [during the challenge ... I cringed at the time ... why did not Democrat object?] ... so we need unanimous support to have any trial before the Trump leaves." Such bullshit.  

Still worth it, but when he does a bunch of shit before the end, it's all on the Republicans.  In part, to put them on record.

Brother John

 

Sidney Poitier plays a mysteries visitor in a small Southern town in the middle of a major labor battle among other things here. It is a well acted and put together film, if one where nothing much happens. At least, you wait for a while for something major to occur and instead larely get more powerful small vignettes like the harassment of a black father by the police in front of his sons. Good film; downloaded on demand on FIOS.

The Grab GA Voters By The Pussy Tape

Listen this is not about whether he technically committed a crime. In fact, he may be too insane to have the requisite scienter. The point is what he did is wrong on every level, an abuse of office and trust, and should end his public career.

Prof. Eric Segall wrote that regarding the last Trump fuckery, which other legal minds (including Rick Hasen) believe pretty clearly is a crime that should be prosecuted, both under state and federal law. Hasen summarizes:

President Donald Trump likely broke both federal and state law in a Saturday phone call during which he encouraged Georgia Secretary of State Brad Raffensperger to “find” enough votes to overturn the state’s election results.

I don't have it in me to listen to that guy at all, but others who have underline the insanity of the hour long call. Just considering the effort required to craft that level of bullshit suggests the sort of horrible skill (some don't like to use words like "skill" in respect to horrible things, such a "bravery" for terrorists, but it is not an inherently positive thing) he has. There is a reason he got this far. Reasons, of course, including his enablers. Many plan to challenge the electoral count on Wednesday though this makes it a bit more painful to do so. Not that this call is somehow unique. Let's not fall into a THIS DOES IT trap. That's very old news at this point.

The article cites the law, but the direct federal provision cited in an earlier discussion is 52 U.S. Code § 20511. In relevant part:

A person, including an election official, who in any election for Federal office— (2) knowingly and willfully deprives, defrauds, or attempts to deprive or defraud the residents of a State of a fair and impartially conducted election process, by— (B) the procurement, casting, or tabulation of ballots that are known by the person to be materially false, fictitious, or fraudulent under the laws of the State in which the election is held, shall be fined in accordance with title 18 (which fines shall be paid into the general fund of the Treasury, miscellaneous receipts (pursuant to section 3302 of title 31), notwithstanding any other law), or imprisoned not more than 5 years, or both.

Shall/would, oh well. The Slate article flags the "state of mind" issue, which makes it harder to prosecute these cases. At some point, some sort of rational observer test should be in place, at least for official acts. Plus, it's hard to believe that at this point the totality of the circumstances -- even if he believes he won -- includes some criminal acts. If only akin to police who lie to prove what they believe is true.

Despite the long odds, I would hope at least Georgia prosecutors will consider going after Trump, or that the House of Representatives might impeach him again with the goal of disqualifying from running in 2024. Lack of prosecution or investigation demonstrates that there’s little to deter the next would-be authoritarian—perhaps a more competent one—from trying to steal an election. Trump came a lot closer than he should have this time, and next time we may not be so lucky.

I'm not too optimistic about the desires of Georgian prosecutors here, even if the state is purple enough to vote for Biden. But, I'm glad at that at some point people like Rich "we shouldn't filibuster Gorsuch, there is nothing positive to come of it" Hasen thinks things are so bad that we need to draw a line in the sand here. This is EXACTLY what the impeachment manager warned about. (I thought the impeachment should have went further. If the other side wasn't going to act, let's put it all out there.) How many times is too much here? If you want to wait until after the Georgia Senate elections tomorrow, go right ahead. But, we can't just handwave it. Elections alone aren't enough.

2021 has begun, but 2020 still lingers on, especially with Trump still in office. I will end with something I saw, a finding by a UN panel that Trump's Blackwater pardons violated international law. There is some bare minimum a government should do to address war crimes and that advanced impunity.

Giants Watch Eagles Lose

There is an extra playoff slot and upsets, meaning there were various meaningful games in Week 17. No real surprises, down to the Jets (already losing the #1 pick, but hey, Clemson was outclassed by Ohio State anyhow) losing to the Pats and Washington winning the night game. Miami had various ways to get in but none that easy; they were the 10 win team on the outside looking in. The two Jets upsets (Rams and Browns) turned out not to be major spoilers; both got in. Cards up/down season helped the Bears eke in 8-8.

Giants (surviving a possible fumble late) did beat Dallas, but needed more than that win. The Eagles showed some life (down only 17-14 at the Half and then getting the ball back on a turnover). But, they turned it over on downs, the second half had a total three points and in a close game the Eagles went with their third stringer. Who didn't do much. So, Washington is in 7-9, Giants eliminated at 6-10. Go Bills!

SCOTUS Watch: Final 2020 Odds and Ends

The end of the year report of the Chief Justice was dropped and logically (with photos comparing a hundred years ago and now) focuses on the Big V. Don't see a reference to RBG dying. We also have more argument dates for 2021. And, a new court reporter.

We also have a few orders, including sending back (with the same 6-3 votes) related cases to the census lawsuit. As of now, Trump has not provided the info in time. And, without comment, a state stay request was denied. Turns out to be an interesting case involving requiring a sex offender to have state id labeling themselves as one.

Also: Jane Against the World: Roe V. Wade and the Fight for Reproductive Rights is a good young adult book that many adults will benefit from as well. The title might confuse since "Jane" here is specifically a collective of women that performed abortions, not Jane Roe. The book is clearly pro-choice, but does provide some material on the other side.

Jets Spoiler, Giants Alive

No bye, so there are some more football games, allowing an extra day of football. (Christmas football was on Friday but there is usually a Thursday game anyway. This time of year amounts to more Saturday games.) The Vikings actually kept up, always a bit behind, with the Saints until mid-4Q. There were also more upsets and the Raiders found another way to lose (missed XP and deep pass/penalty allowing a FG to win it via a drive that took around twenty seconds). Green Bay also had a scenic snow game.

The NFC East went back to form of late though this helped the Giants. Washington needs a win to get in, but without an adequate QB haven't been able to do so. Eagles went back to losing. Giants lost too but are still alive, needing to beat Dallas and hope Washington loses. Dallas hopes that too, but to win too. Jets spoiled again, beating the Browns. Jags lost, so they get the #1 pick, but that alone is of limited concern anyhow. Bills win.

The Other Americans

The holidays continue with Boxing Day (12/6) and Kwanzaa, which is sort of a secular African culture friendly Hanukkah with a menorah of its own. Among the holiday films I watched parts of, I basically watched all of the Katherine Hepburn (very good) and Cary Grant (also matched up in the slapstick Bringing Up Baby) film Holiday, which takes place around this time, but the title refers to Grant's desire to take a "holiday" to figure out things.

A cultural mix is found in the mystery The Other Americans, a mystery told from many points of view by Laila Lalami. I figured a plot twist early on, but overall, I enjoyed the book by the author of a recent non-fiction book about the experience of immigrants.

Merry Christmas!

 

Third Time's Not Quite The Charm

Update: Trump is starting his finale with a bunch of -- nothing novel on principle here really -- corrupt pardons including of war criminals, fellow conspirators in the Mueller Report crimes as well as political corruption by allies. And, Kushner's dad.  His pardons are uniquely corrupt, the few good ones generally favors for celebrity friends.  

The Constitution seems to leave open arbitrariness in the application of pardons, though sound practice would provide an organized approach that also addressed such things as clear conflict of interest and so forth.  Of course, in theory, the impeachment power provides a check.  His usage here, including floating pardons (clearly spelled out in investigations and influencing the responses of people involved) to obstruct investigations. 

But, Republicans didn't give a shit and continued to enable him.  It is yet again not just his responsibility.  

Item: a felon, adherents of the QAnon conspiracy theory, a White House trade adviser and a Russian agent’s former lover

The effort to fight Biden's win continues though at this point (if it ever was different) it is clearly more grift than anything else. Accounts are that this whole effort is ranking up the bucks. It is unclear who actually are true believers, one figures Trump himself somehow believes it (see the book Strongmen where there is a tendency to believe your own b.s. as to how broad your support is), but that is on a basic level of limited importance.

The greater concern is the widespread belief the election was tainted, including this helping support of new burdensome voting restrictions as well as opposition to Biden and his overall plans. We also should be concerned about delaying and even now interfering with the Biden transition, especially in these times. This is a drawn out process that involves a lot of resources and trading of information and access. The harm here might not be clear in a hard and fast way, though examples probably can be cited, but the net burden is real. This is all the case even if (as expected) Trump is gone on January 20th.

None of this is unexpected, but we again have people saying THIS is too much as if it is really shocking, and they might have been able to go along with somewhat less. Let us recall the impeachment. As I said earlier this year: Trump got his free pass. This is from Rep. Val Demings, a House impeachment manager, a former police chief:

[He] ordered his subordinates to lie to investigators, intimidated witnesses, and tried to kneecap the investigation at every opportunity. He ordered White House Counsel Don McGahn to fire the special counsel, and then to lie about it and fabricate evidence to hide his action. Don McGahn refused this illegal order, but as Director Mueller clearly stated today, an attempt to obstruct justice is still a crime, even if refused. The Special Counsel documented at least ten counts of obstruction of justice, a federal crime.

One of the election challenge grifter gang is Sidney Powell, a dead ender on this question. She also became Mike Flynn's attorney, the start of him going (back?) to full wingnut. To show how long these things drag out, this was around two years ago. Flynn is one of those glaring, symbolic fucked up things, a national security advisor in hoc to a foreign power (at least one) and now apaprently full Q conspiracy. One or more of those now in the expanded Republican House caucus. 

The age of resistance will continue on after January 20th.

Football Update: Every Dog Has Its Day

I figured that the Jets would win this season, but a game versus the Rams (9-5 now, so flawed) wasn't really expected. Jags have the #1 pick now but who knows what will happen with the 2 wins (and a tie!) Bengals beating the suddenly struggling Steelers on Monday Night. Bills clinched the division for the first time this century and the Pats were eliminated for the second (back in the day, they lost on a tiebreaker). Jets play them again; will Jags win too and the game matter? Giants lost but each NFC East team still alive with two games left.

Among the graphic novel options was one with a cute cover by Rumiko Takahashi, who turns out to be a long time manga artist in Japan. The library did not have it but did have a volume of her classic Urusei Yatsura (horrible people) series. Amusing, creative and well drawn.

The Invisible Woman

This is an amusing Svengoolie film, well paced and I even was overall amused by the comic relief (it overall is a comedy). Charlies Ruggles as the butler, a familiar face, included. Many of these films, including classics, don't quite do it for me, but there are some good ones. Svengoolie as usual is fun and from what I can tell quite a professional at what he does.

Bonus SCOTUS Content

Since the release of census data is time sensitive, it was suggested that the Supreme Court would address it soon. And, they did via a short per curiam disposing it on standing and ripeness grounds. There seems to be some merit to that, noting (as more than one blog noted) such things are applied arbitrarily. Wrongful actions alone won't get you a decision (but maybe this is an unjust result) though the dissent flags that the government here clearly stated its intentions and in the process will cause unnecessary delay and cost. OTOH, it seems fairly clear that the Trump actions are not final, plus just what they entail is in doubt.

(Some were annoyed that the Supreme Court did not sign the opinion dropped here, but as things go, this is a more appropriate usage of per curiam. That is traditionally used to drop uncontroversial brief opinions that do not substantively address the merits of a claim. [Other special cases arise, such as the author of the opinion leaving the Court.] But, here, there was a strong dissent. So, as a matter of good policy, it probably would be better for it to be signed. Cf. the Texas per curiam which was a dismissive rejection that only had a brief "statement" of two justices adding something to it. This "back of the hand" from the Court very well might have been too brief, but it is the sort of thing that makes sense for the Court as an intitution, so to speak, to "say.")

The liberals via Breyer dissented, going to the merits in an opinion about three times as long, spelling out why Trump's position is stupid. At first blush, interesting Breyer would not accept a punt, especially with the Biden Administration coming in. But, he did partially dissent in a previous census case, and veteran Supreme Court journalist Lyle Denninson entitled his summary "Trump gets big — temporary — win on census." And, the merits after all are pretty obvious, including both on partisan and racist (a theme in the earlier opinion too) grounds. As Breyer noted: “History shows that, all things considered, that approach has served us well. Departing from the text is an open invitation to use discretion to increase an electoral advantage.”

But, we had even more bonus content. Supreme Court reporters on Twitter referenced a new policy of some sort of a bonus order day even without a conference intervening, to fill in the argument slots (good many) still open. If this is a thing, not that they would explain it, or not, they granted a few cases of some note either way. SCOTUSBlog summarized:

The Supreme Court on Wednesday morning added three new cases to its merits docket, agreeing to hear arguments in a pair of consolidated cases in which the justices will decide whether colleges should be able to provide greater compensation to student-athletes, as well as an appeal from the credit-reporting giant TransUnion, which is challenging a class action lawsuit against it.

The student athlete matter touches upon the important issue of the amount of compensation allowed, something that gets some degree of attention. College sports, at least football and basketball in some schools, can be quite profitable. How much students should be compensated, besides something like tuition (not nothing), is debated. 

The other matter has potential, especially with a six person majority, to move the needle on class action law. An amusing thing for me there was the competing summaries of the nature of the harms. The credit reporting company spoke of "an inaccurate credit report hindered his effort to secure credit, caused him embarrassment in front of family, and led him to cancel a vacation." While the other side flagged people being accused of being terrorists or drug dealers. A bit different, huh?

We also had a few orders dealing with the new normal regarding applying the Cuomo religious liberty case to various pending litigation. The rule seems to be that some will be sent back without comment, but (as was flagged by Kagan for the liberals in one case, arguing the case was moot) maybe now and then there will be a split. Why this is not just all treated together as compared to drip drip via often opaque orders via the shadow docket is up to the reader to figure out

Another, this time even less religious institution focused (thus the dissents flagged possible "hybrid" rights or something), was turned down (again in an unsigned order) for time reasons with Alito/Gorsuch dissenting.  Gorsuch again laid it on thick about religious liberty allegedly (no) getting second class treatment. They want to pull back Oregon v. Smith, the religious liberty case setting down the generally applicable law rule. Might get their chance, but not quite yet.

Is this it for 2020? Again, might get some stray order, and these days more would not really surprise.

A Woman Is No Man

Found this online and it was overall a good first novel.

It contains multiple points of view, at different times, which is one thing I like. I would have liked something in Sarah's voice, and her dialogue at times seems too forced, there to send a message. Looking at the author's Wikipedia page and her own, the book is to some degree inspired by her life. The Deya (18) character comes off as herself.

Electoral College Votes For Biden/Harris

Stacey Abrams is met with applause as Georgia electors cast their ballots for Joe Biden & Kamala Harris: pic.twitter.com/BSoo8KxpiJ

— The Recount (@therecount) December 14, 2020

Today is the day when the Electoral College (designated voters meeting) meets and the current rule in each jurisdiction (states and D.C., the latter per amendment; Puerto Rico with more residents than several states etc. lose out) is that the popular vote determines how many electors are picked. The party picks the individual electors, helping to avoid the whole faithless electors problem. By statutory rule, it is the same day, but not the same time. You could track the votes and watch the electors do their thing.  And, then the lists are sent to the "seat of the government" and counted with the President of the Senate presiding.  Jefferson did this even with himself on the ballot. 

And, except for Maine and Nebraska, where each district gets individual votes [resulting in a single Trump and Biden elector this time], it is winner take all. At shortly after 5 P.M. (EST), California pushed Biden/Harris over the top.  No faithless electors though some states do not have laws (deemed acceptable by the Supreme Court) against that.  Hawaii would vote a few hours later without incident. So, 306-232 with no faithless electors, meaning that looking at THAT vote, Biden has two more than Trump.

That is, Kamala Devi Harris:

Kamala Harris’ first name means “lotus” in Sanskrit and is also another name for the Hindu Goddess Lakshmi, who represents wealth and prosperity. Her middle name “Devi” also means “goddess,” and it is the name of the Hindu mother goddess, a nurturing force with a fierce side. Both are deeply revered symbols of South Asian culture. Harris' mother Shyamala told the Los Angeles Times in 2004 that she chose Kamala’s name for an auspicious reason: "A culture that worships goddesses produces strong women."

As Hillary Clinton, a New York elector, said, we really shouldn't have an Electoral College. It might have made some sort of sense, at least as a compromise, given various contingencies in 1787.  Not any more.  But, as long as we have it, the whole ritual of the votes and so on does have some sort of charm. Some fear we will have "faithless electors" that will screw things up.  After 2016, suggesting anything is unlikely will get a "yeah right," but so far so good there. Note, when only a handful was involved, I don't recall any suggestion a few Bush electors should switch in 2000.  

As the electors were about to vote, apparently, the Wisconsin Supreme Court (4-3 with one conservative judge leading the way; the difference very well might have been the new justice elected earlier in the year) pushed aside another Trump lawsuit.  But, the Trump side clearly are in the Animal House "Did it end when the Germans Bombed Pearl Harbor?!" frame of mind.  A New Mexico suit was reported just today.  Stephen Miller on the morning propaganda reports spoke of shadow electors. Later on, Bill Barr (submitting a suck-up letter, including continuing the fraud bullshit) said he is leaving on the 23rd.  

Meanwhile, saw some reports of New York health workers getting the COVID vaccine.  We might have a beginning of the end.  Or, at least, the end of the beginning.  I myself got a COVID test, both the more accurate delayed results one and the antibody test.  The person said it usually is good for six months and I took it in June.  But, balances off fairly well.  

SCOTUS Watch: 2020 Ends?

The SCOTUS dropped a cert. grant on Friday, but the Order List wasn't totally boring (often is a flag it will be boring). A per curiam summarily rejected a habeas claim involving the right to counsel in a death penalty case, the liberals dissenting without opinion. I continue to oppose not explaining oneself in important cases (maybe the case here is weak; either way), but it is notable too since (so Legal Twitter noted), this isn't usually done in 5-4 cases. Barrett might eventually have a deciding vote not in a case involving death.

Other orders involved not taking a cases rejecting an Indiana law against protecting same sex couples being on birth certificates, citzenship id requirements for voting and also a crank challenge against six of the existing justices (quorum is six; no quorum? the lower court by statute holds). Trump Twitter and census claims not decided upon. And, a real original jurisdiction case involving water rights was decided with a partial dissent from Alito.

No more scheduled executions (usual only reason they are compelled to decide something) or conferences scheduled for 2020. Chief Justice's end of the year report the next scheduled thing to look for. Probably see more though.

Jets 0-13 and Giants in Second Place

East v. West with the West winning ... Jets scored a field goal and then was crushed by Seattle, who the Giants beat last time. Cardinals dealt with them, after the Giants defense held them down some early, only giving up a touchdown. Bills dealt with the now two losses in the row Steelers for the night game. Three times for NY teams, one win.

Meanwhile, the NFC East is no longer "the least" as a whole, Dallas, Eagles (over the Saints though they almost blew it) and Washington (now in first place) all winning. Other notable game: Bears had offense and won. Ravens/Browns on Monday Night.

Strongmen: Mussolini to the Present

This well researched book with some biting comments mixed in now and then is surely timely. The book covers ground to around June 2020 and includes Trump in the mix. This includes the changing nature of strongman (rich plutocrats using elections often the deal now), their techniques (violence, virility, corruption etc.) and how the core covered ended their reign. Plus, key things to use to address and prevent, including respect of good institutions, some form of justice and a general positive approach. Strongmen tend not to have empathy.

Happy Hanukkah

 

I talked about the holiday in the past and still want to find a good book about the historical events involved. Among our new things, the Vice President's [elect] husband is Jewish. There are also now a few Jewish themed holiday movies on televison. And, I saw reference elsewhere that some Jews (contra to some talk I saw) find the holiday quite important, in part since provides a balance to Christmas. And, this case involves a menorah.

SCOTUS Rejects Texas Suit But ...

The timing of this opinion brings to mind the 20th anniversary of Bush v. Gore.  The case might have been a somewhat less absurd usage of the courts [Rick Hasen argues the correct lesson should be changing the system to advance non-partisan electoral procedures] -- specific candidates challenging specific state electoral procedures not irregular in a general sense -- but it clearly had its own absurdities.  Tempus fugit.

The tail end of my last post tacked on the latest Supreme Court decisions, including regarding an attempt (joined by a myriad of people, including typo filled briefs by people like one representing "New California" and "New Nevada" as well as Citizens United and a majority of the House Republican caucus led by the minority leader) to overturn the popular vote in four states (the Midwest states turned and Georgia) and toss it to the state legislatures there.  Here is a bit more with links by SCOTUSBlog.  

A founder of the blog in a atypical statement (not totally -- he defended Neal Katyal earlier) strongly argued that the Supreme Court should have wrote a longer (if brief -- five pages or whatever) statement strongly rejecting the lawsuit as an abuse of the courts.  I think he lays it on a bit too thick, including on how useful it would be and how it would be the best hope. The best thing would be a bipartisan coalition in Congress joining together, but guess that is unlikely.  I was open to the idea while others also shared his feelings fairly strongly.  

Others argued that the lawyers involved should be sanctioned or worse. I am supportive of the sentiment as well and fear the alternative will be more of the same.  It is quite important to denounce and not forget what is being done here.  Some will likely see it as all theater, but it is not.  It also is actually taken seriously by probably millions of people in some sense.  I might say tens of millions even.  A majority of the people's House minority -- why not? voters (though they are saying votes in four or more states are tainted, including some they themselves come from) expanded their caucus -- want to overturn the vote (based on bullshit) and let state legislatures assign the electors.  

I share this sentiment:

And this is why I, and many Democrats, were disappointed by the results of this election, Biden/Harris aside. Republicans suffered no consequences for enabling Trump the last four years. They will suffer no consequences for enabling Trump in the current efforts to undermine a democratic process through blatant falsehoods. And they will suffer no consequences  for preventing Biden from appointing cabinet officials, never mind judges. So there are no incentives to get them to stop.

Disappointed/anguished/pissed off .. you know, depending on the moment.  Rick Hasen is happy at judges as a whole (a few did not) rejecting a bunch of really bad lawsuits (might very well be different if it came down to a state or two with somewhat more credible disputes), but still is concerned about the future because they still taint the integrity of our elections long term. Also, it will lead to more efforts to add voting restrictions, defended as necessary to safeguard electoral integrity. And, courts will uphold them on presumption of regularity grounds, mixed (as has been cited in some cases already) some general important state interest for the appearance of integrity. 

(In part: "But the fact that 18 attorneys general and 126 members of Congress, all Republicans, could line up behind this outrageous Texas case is horrible and bodes ill for the country for years to come." Also, "The delegitimization of the Biden presidency by Trump, and of elections generally, will reverberate for years to come. And that’s a real tragedy.")

Anyway, other than one mild win, Trump and Republicans supporting Trump have lost nearly sixty election lawsuits as of this writing. After the election, so far, the Supreme Court only disposed of two, one the other day without comment.  The Supreme Court dealt with one shortly before the election from Pennsylvania that some feared might matter, but it turned out the vote wasn't close enough. It might in some form technically be still active though again it's basically moot.  

OTOH, as with the case tossed today, there is an issue involving state legislatures regulate elections that at least three, maybe more, justices want to take.  It's trouble and would interfere with the power of states to regulate their elections, including judges and other electoral bodies tinkering around the edges in important ways to safeguard election integrity.  The one disposed today basically argued the four states had various electoral irregularities and this somehow (using some perversion of voter dilution or something principles) tainted the rights of Texans, whose "lawful votes" were harmed somehow.  

The alleged irregularities are bullshit and were dealt with in other cases. The overall argument was bullshit. So, the Supreme Court in a per curiam just said they had no Art. III standing.  It added this general rejection: "Texas has not demonstrated a judicially cognizable interest in the manner in which another State  conducts its elections."  Alito and Thomas cited their view on discretion in original actions, but given the explanation, not sure really the relevance.  The others didn't merely reject; basically they held Texas on the merits didn't have standing.  

The per curiam (note that it appears one can't just hold off from joining them silently so Barrett seems to have formally been involved though her not recusing herself didn't really change anything) doesn't spell out why Texas was wrong so it is unclear how much if any this will provide caution to future attempts to do something like this. "This" including in effect ideological partisan stunts (here perhaps to encourage Trump to grant a leader of the effort a pardon) against other states in the courts.  

[I say "apparently" from references on legal Twitter but see here suggesting only a majority is necessary.  Also, note that Alito had a "statement," not a dissenting opinion.  It probably is a partial concurrence. The wording overall for each group was probably carefully crafted though exactly what it means as noted by me is not totally clear.]

The order tossed other motions related to the case as moot. Alito and Thomas vaguely said that they "would not grant other relief, and I express no view on any other issue."  But, what does that mean? Is it a suggestion that they would accept the filing (do they think there is a judicially cognizable interest?) but reject it on the merits?  Or, won't do anything now?  What "other issue"?  A real opinion might have actually been useful in both cases to clarify these issues.

Anyway, as Rick Hasen notes, some more meritless litigation (including one being heard in Wisconsin tomorrow) will continue, maybe even after the electors meet on Monday.  And, then, there likely will be objections of the count in Congress -- House Republicans already said as much and Ted Cruz or someone else will join them in the Senate. It will be rejected and then we will see what else will be made up.  Will someone claim Biden misspoke the oath? Will Harris break a tie and someone challenge her citizenship?  

And, we must continue to speak out against the rejection of democracy and overall bullshit. The resistance will continue.

SCOTUS Update: First Signed Opinions Drop

After without comment ("brief order" is sometimes used but that implies some content) deposing of a stupid Trump post-election lawsuit, the Supreme Court dropped four signed opinions on Thursday.

The theme in the opinions were short opinions that were basically all unanimous though a justice (or whatever Gorsuch is) had something to add at times.  A summary of three can be found here with the fourth involving leaving be a local pharmacy rule as not pre-empted by federal law.  As Sotomayor notes, the matter is of some importance and overall it shows how local discretion involves a range of subjects that might in some instance raise federal law implications.  

As Alito says in his own opinion, there will be reasonable debates, and the Supreme Court has to on balance settle the disputes.  To give credit, his brief opinion in a military capital case was well written, spelling out the details and settling the issue is a calm succinct matter.  The opinion avoids wider debates on the Eighth Amendment.  The same with Thomas' opinion that as a bare minimum allows under RFRA the right to money damages, here related to an alleged wrong involving Muslims and the no fly list matters. And, as Alito notes, many of these disputes can be relatively briefly handled, though judges do love words. 

The RFRA opinion has an interesting brief summary of Oregon v. Smith and what RFRA did:  "RFRA secures Congress’ view of the right to free exercise under  the  First  Amendment,  and  it  provides  a  remedy  to  redress violations of that right."  Just how much power does Congress have the right to a "view" of a constitutional provision that courts interpret?  Also, if RFRA "restores" the previous rule, does it do more as suggested by Hobby Lobby?  Without more, not clear, and future cases probably will at least somewhat modify the application of that old precedent.  

The fourth case was a punt on standing grounds in a potentially divisive dispute involving regulating the number of state judges by party or "major party."  Then, we had the first of two executions scheduled this week, involving someone many saw was a horrible choice to execute even if you support the death penalty in some cases.  This includes members of the jury and the Department of Justice pardon division.  This was for various reasons, including ones that (as three justices, Sotomayor with an opinion, flagged) had constitutional problems.  

He was executed.  We also had reports of past federal executions spreading the Big V.  No shock there.  Execution scheduled by feds later today and three for January.  Today's defendant is probably less sympathetic though does raise intellectual disability claims that can help one look past his crimes to some degree.  

Update: As expected, the Supreme Court rejected without comment those claims with Sotomayor (with Kagan) dissenting, saying there is a case to raise a claim based on statutory barriers to executing the mentally retarded.  No procedural bar in her view.  No comment from Breyer.  

Some wanted a statement of principle rejecting the crazy Texas lawsuit against four states that brought in a lot of comment nationwide. The justices went with barebones rejection, Alito (and Thomas) slightly dissenting since they think there is an obligation to take any such case procedurally. No comment on the merits.  

The Court also granted a securities law case and announced more orders (likely boring) and one or more likely opinions on Monday.

Conditional Citizens

This is short book by a native of Morocco who years ago came here for postgraduate education and staid after falling in love. She later became an American citizen. She covers various grounds on how "other" people are and were treated as second class citizens, particularly immigrants. Interesting read that reminds us of our limitations as a society.

Giants (1st Place) and Jets (No wins) Hold Serve

Figure the Jets will win a game, had a few shots, including today. But, they keep on finding a way to lose -- this time with a few seconds to play vs. the Raiders on a badly defended long pass. Jags, with the #1 pick tiebreaker, holds at one win. OTOH, Giants actually beat Seattle with their back-up, their defense holding Seattle, including in the final drive. Where Seattle often manages to do the job. 5-7 and one step closer to winning the division.

On Monday early and regular night football, Washington (sic) broke Pittsburgh's winning streak and Buffalo went back to the site of the end of the game shocker (Arizona) but this time won (if against SF, there for Big V reasons). And, on Tuesday, Dallas acted like a three win team.

Mary

Today is the day Catholics honors the "immaculate conception," which is not in reference to the birth of Jesus.  It is based on the supposition, not shared by many Christians and probably confusingly understood by some Catholics, that Mary herself was born without original sin.  This to me would cheapen things a bit, since her strength of character is underlined if she was just like the rest of us, inclined from birth to "sin," or act against God's will (actual or symbolically understood).

Her acceptance of destiny also becomes less profound.

The Gospel of Luke notes:

In the sixth month, God sent the angel Gabriel to Nazareth, a town in Galilee, to a virgin pledged to be married to a man named Joseph, a descendant of David. The virgin's name was Mary.  The angel went to her and said, "Greetings, you who are highly favored! The Lord is with you."

 Mary was greatly troubled at his words and wondered what kind of greeting this might be. But the angel said to her, "Do not be afraid, Mary, you have found favor with God.  You will be with child and give birth to a son, and you are to give him the name Jesus.  He will be great and will be called the Son of the Most High. The Lord God will give him the throne of his father David,  and he will reign over the house of Jacob forever; his kingdom will never end."

"How will this be," Mary asked the angel, "since I am a virgin?"

The angel answered, "The Holy Spirit will come upon you, and the power of the Most High will overshadow you. So the holy one to be born will be called[c] the Son of God. Even Elizabeth your relative is going to have a child in her old age, and she who was said to be barren is in her sixth month. For nothing is impossible with God."

"I am the Lord's servant," Mary answered. "May it be to me as you have said." Then the angel left her.

The whole account has a mystical quality that "fulfills" a biblical prophecy that appears to have concerned something else, including a quite normal birth.  Still, it is interesting to examine what is happening here.  For instance, note how Mary, who is about thirteen here, is informed beforehand by a messenger from God.  The matter is not just thrust upon her without warning.  She also consents to her role.  The event here (called the "annunciation" or announcement) can be seen as a symbolic acceptance and/or understanding of her role. The angel can be seen as symbolic -- ultimately, it can be a matter of faith on Mary's part, a personal religious experience.

Only time would tell if it was true or a mistaken confusion of a naive teenager.  The account was written long after the events, even if we take it as fact, based on oral statements perhaps given decades later.  Given the two birth narratives (Matthew and Luke) conflict, as do all the gospels on various details of Jesus' life, the exact details are unclear.  A mistranslation of "virgin" or using one version of the assumed truth so that the prophecy would be fulfilled could lead to an account that did not exactly happen quite that way.  Who is to say that an "illegitimate" pregnancy would not be used for God's purposes?  The Bible has many accounts, including involved assumed ancestors of Jesus, where questionable events (including tricking a father-in-law to conceive a child) furthered God's plan.

A book considered the death penalty by looking at Jesus' own execution,* in part since Jesus said that the least among us (including prisoners) should be treated as one would treat Jesus himself.  Imagine if Mary is seen as the seminal teen mother? Singling her out as having no original sin, like the idea of a perfect God who accepts the state of the world, does not really work for me.  But, what do I know?


I just share a name with St. Joseph, after all. 

---

* Jesus on Death Row: The Trial of Jesus and American Capital Punishment by Mark Osler

SCOTUS Orders

SCOTUS will have a few interesting -- if not getting as much attention as some -- oral arguments this week. The big moment of late was dropping the 5-4 order regarding regulation of religious practices during the time of Big V.

A California case, which the state argues is different than the New York one and accepted this approach, was sent back to be re-examined. A procedurally, according to legal Twitter, novel approach but the no dissents suggests not too controversial. It does show that the other order, even if it had no immediate effects for New York, has advisory bite. The other order last week granted cert in a Medicaid work requirement matter that very well might be made moot under Biden. As expected, that Friday drop foreshadowed a dull Order List.

Some Current Thoughts on Legislative Prayers

I just listened to and read the various decisions of Marsh v. Chambers, the earlier legislative prayer case. Sen. Ernie Chambers (Nebraska) is still around, a hero and character to the end.  Past entries covered this ground, including a later case that somewhat clarified what is required. As with the Scarsdale case just addressed, the discussions stand on their own and they are pretty well worded. So, won't totally re-litigate.

The Brennan dissent is well argued overall as is the briefer Stevens' dissent that is more focused on how the prayers (and one chaplain) advances a specific religious faith.  The opinions below are more concerned with funding (district court) and funding particularly of a solitary chaplain of this nature. The Supreme Court majority argues funding along with the rest is allowed by history.  Funding is a primary concern on the Establishment Clause, but so is sectarianism.  If we have some sort of system of the type here, it should be as broad as possible. This is even somewhat noted by Supreme Court precedent.  A practice that blatantly promotes Christianity in a disparaging way is not allowed.  

One thing noted by the opinions at the Supreme Court level is that even at the beginning there was some dissent on use of chaplains, reasons that are flagged by opponents today.  Brennan's discussion at one point notes how religion is in a special way deemed private here.  This flags how there is a "right of privacy" that involves various constitutional provisions.  Anyway, there is (and not just a "we can't be absolute" way) something curious about a government body starting its official proceedings with chaplains/prayers, which are in some fashion going to be somehow sectarian.  

Finally, there is the usual talk in these cases about how such and such is allowed. This can get tiresome, since lines are drawn.  But, not being a Supreme Court justice or something, I can face up to these things and accept that "God Save This Honorable Court" and so forth are not just words said that has lost all religious meaning. Or, some bland way to "sanctify" (or whatever word is used) public hearings.  It is a lingering official means to reaffirm certain deistic (and as a whole often more) messages.  This doesn't mean all is acceptable.  Even Scalia noted something like "In Jesus Christ We Trust" would be problematic.  

(Scalia did this during the oral argument in Lee v. Weisman, which also has an interesting concurring opinion by Souter that not only provides a textual and originalist analysis but also weighs it with precedent.  His discussion includes a good discussion of Thanksgiving Proclamations, also one of those acknowledgments of religion that repeatedly is tossed off as justifying something not really comparable.)

I actually had to write a mock opinion for this case before the fact and at the time thought it would come out 5-4 the other way. To be fair, apparently, Justice Scalia also was upset.  OTOH, if you listened to the oral argument -- something not readily available at the time -- both Kennedy and O'Connor's votes later on are not really surprising, even if Kennedy hesitated during the opinion writing process.) 

But, again, if we are going to allow that sort of thing, we need to take care.  Truly respect the diversity of beliefs out there, including those who might be labeled "secular humanist" or whatever.  If we have "days of prayer" or the like, respect some do not pray and don't just blatantly promote "Judeo-Christian" values or something.  Don't have appeals to "religious liberty" and just mean conservative religions. 

And, maybe even recognize that even if absolutism (or closer to it) is not possible, something might be lost in the process.  Those long law review articles that show that "ceremonial deism" or whatever in actual practice burdens religious liberty has some bite. 

You Never Forget Your First (George Washington)

I read Alexis Coe's first book, a historical drama that has been made into a movie. This book was ready for me in March, but didn't pick it up in time when the NYPL closed. So, it was sitting on the reserve shelf a few blocks away without me having access.

Finally came in (probably not the same copy) recently. I enjoyed it, including its down to earth (but still serious) style with helpful charts and such summarizing various information. (Sarah Vowell's snark and asides after a while is laid on a bit too thick.) The book intentionally is a reasonable length (around two hundred pages) and at the start suggests it is trying to avoid the traditional "masculine" biographies. Not sure how much a "woman" touch here mattered as compared to not being stereotypically traditional. No photos.

House/POTUS Good News (In a Sense)

A reply to my least favorite Dorf on Law contributor annoyed me, but also flagged something useful. Now, it is unclear how helpful it is to his overall sentiments, which multiple replies suggest are somewhat scattered.  Still useful.  So, maybe I owe the person thanks.  Not too much. No one reads this anyway.

My reply also slipped up and made a silly mistake but it didn't really hurt my case in the long run.  Just a nod that online comments (and more edited fare!) will slip up sometimes.  Take the whole content, not just slip ups.  A last bit --  Michael Dorf (his wife recently nicely thanked me for supporting her work in another entry) argued the reference to gerrymandering was specific.  Comments do at times latch on to something without addressing the specific argument.  But, comments can be addressed as is too. 

Partisan gerrymandering has been a subject at many blogs and overall I think it a bad thing. How does it fall?  Well, given Republicans now control state legislatures as a whole, you would think it would benefit them as a whole at the moment.  Likewise, conservatives on the Supreme Court oppose usage of constitutional arguments against it or use a specific dubious restrictive usage of "state legislature" (see the post) to restrict the power of the people to respond. "Both sides do it" takes you just so far.

I still am not really sure how much net nation-wide partisan gerrymandering is a problem. To get to the point, per the NYT: Democrats received 76,797,776 votes (50.7%) and Republicans received 72,582,488 votes (47.9%). There are four races not decided yet.  Dems by proportion would get 220.5 seats there. They have 222. Republicans would get 208. They now have 209. (again NYT numbers)

(Wikipedia tells me Republicans received 44.8% of the vote in 2018. That means they improved by 3% which is currently the difference between the parties too. That to me comes off as a small number that is quite open to fluctuation.)

Now, why those votes split that way very well can be explained in various ways. It is likely fairly complicated.  So, e.g., in specific states that partisan gerrymandering might have helped one side. The issue there is to determine nation-wise how that balances out.  That would require a complete parsing of the numbers. 

Both parties gerrymander; one party these days seems more open to voting rights legislation to address that and other issues.  But, I don't know.  And, in specific cases, maybe voting id laws and so forth matter.  If they don't, well, why do Republicans support them so much?  If we want to be all cynical (realistic), these things would be motivated in some fashion by pragmatic hard results. 

Anyway, Biden received 51.3% vote. So, he has a slight plus from the House vote, though would appropriately be leader if we had a parliamentary system.  Again, this is all interesting, and somewhat reassuring. Biden won around seven million more popular votes than Trump.  Merely by percentage, his vote total would be in the 270s of the electoral vote.  Is it a "landslide" when you are within a poll margin of error of winning the popular vote?  Seven million is a lot.  It is less when it is a fraction of 155M.  Still, rounding off, we are talking a four percent swing.   

Sounds less than "seven million" in a way.  Anyway, the problem as pointed out by Paul Campos at LGM (see blog roll) is that in the states necessary to avoid an electoral tie (Pennsylvania and Michigan not enough), the popular votes are in the tens of thousands.  Too close, if far enough to match the vast majority (until this century) of times where the winner also got the popular vote.  Again, the recent trend is troubling, and constitutional requirements can make it even more of a problem in upcoming years as population shifts might really unbalance things.

How about the Senate?  I will rest on the other two, especially since the whole Senate isn't elected at once. The balance overall from past information is less likely to be satisfying.  Maybe, not as bad as it might seem, but then the two senator rule inherently is a lot more problematic than what amounts to rounding errors that can be fixed to a large extent by expanding seats. The House, at least, even with problems of small states like Wyoming and existing gerrymandering, does seem again somewhat reassuring.

All the Republican popular votes still to me is rather troubling.