NYJ = Pathetic Losers

Find a way to lose, each time new and equally pathetic. This time, hold the Jags all Second Half, but like the Giants, except when it matters. Seriously. The overcharged ticket holders deserve a f-ing rebate. Especially with their blowhard HC, this sucks big time.

Saturday Quickies

Hope the MVP of the WS in 1996 is doing okay -- still remember his well worn cap and him saying "I'm just a ball player" to a question. What hell is Webb talking about? "Just as" Japanese military pilots bombing a U.S. military target during WWII?! Also, the precedent is the first WTC trials. And, my comments to this Canadian hearing.

Speech Out of Doors

And Also: Getting a few hits via my cross case analysis. More telling is the two posts over at the Slate fray that got the most attention over the last few months: Letterman/Palin and one entitled "kittens" discussing a "three cats and you must buy a license" ($50) rule. Don't worry: the local law in question does not apply to kittens.

[Talking about the written word, Bill Moyers' Poets House segment was charming, especially the too cute mom/daughter recitation.]

One can be overwhelmed with material given the range of people recommending books or even SSRN downloadable essays. For instance, Jon Stewart and Steven Colbert provide a public service besides their satire on politics and Colbert's continual effort of self-promotion: their guests run the gambit from celebrities to political figures (including in media) to authors. I'm sure their already is somewhere a book club based on their guests. It's a bit like Charlie Rose, but they in fact tend to speak less than the guests during the segments.

Blogs, of course, are a major source of these recommendations. And, "With interlibrary loan, virtually any book, say, is effectively made available to a library’s patrons."* Well, lots of them. Plus, DVDs and other stuff really. But, hey, the government shouldn't spend money on something like health care. Come on. SPEECH OUT OF DOORS: PRESERVING FIRST AMENDMENT LIBERTIES IN PUBLIC PLACES by Timothy Zick was one such recommendation, in fact by the person to which the book is dedicated. See here for a review. The book highlights the value of public speech, for self-expression and so forth, particularly for when the location is important for the expression itself including to target those who rather not listen to the message in question.

The review has mild complaints, but they are of the "uh ..." kind that flag my "but, that doesn't follow" sensors. For instance:

He argues that pervasive surveillance has a First Amendment chilling effect, which suggests that the First Amendment guarantees a right to anonymous use of public space. The courts will not go that far, nor would I. If it is legitimate to record my family standing outside a landmark building (as tourists all over the world are wont to do), it seems equally legitimate to record police behavior or misbehavior in that place. Would government officials, including police, have fewer rights to record in that space?

Zick realizes that public space cannot be completely anonymous. He is upset about the increasingly invasive public surveillance all the same, including technology that one day -- like a show now on the air -- will allow facial recognition software to determine in some real sense what the person is thinking. The book encourages people -- as they do -- to record police misbehavior. And, yes, government officials with their citywide cameras and so forth are different from the general public in this regard. Current policy (and some court orders) also treats them differently in regard to such things as involvement in and surveillance of peaceful opposition groups and so forth.

The book can be enjoyed by the general reader though at times its use of terms like "embodied speech" comes off as sounding a bit too graduate school-like. Nice use of photos and same page footnotes too. Overall, it puts forth a warning -- one as much of a concern of abortion as war protestors -- of the growing limits (legal or otherwise) on public speech and protest that should be respected by legislators, judges, and the general public. It is one of those books where you need not share all its concerns or policy suggestions without respecting its overall message, one that can still be put into practice in any number of ways.

Okay, so now that Jane Goodall book mentioned on the Jon Stewart show looks good ...

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* One lesser reported problem I saw in the majority opinion here was the in passing rejection of the idea that the Internet is a type of public forum, in part because it is not "traditional." The book discusses how absurd this is, part of charm being a concern for real life application of the spirit of the First Amendment over simplistic formalistic opinions.

We basically are stuck with making the best of a bad situation here (precedents allow much troubling regulation though it does not compel change, state court alternatives or policies that deal with the concerns raised) though in this case the main opinion only was a plurality, the concurring and dissenting justices more supportive of broader public fora rules.

I discuss the real life effects of the particular practice at issue in the case here.

Kelo Again

Click photo for discussion of Pfizer's leaving and its effect on the infamous Kelo ruling. I was always wary of the ruling, particularly on homes. Bad public investment choices, however, aren't a clincher.

Legal Tidbits

The Fifth Circuit split with the Eleventh, though both lean conservative, on the issue of sex toys -- the former logically held their sale are protected by Lawrence v. Texas. Conservative, but strong separation of church of state advocate opposes Stupak Amendment on First Amendment grounds. Answering snarky argument, Balkin points out the obvious on health mandates.

Various

Happy Veteran's Day! Notable how Justice Kennedy in Roper and Kennedy does not shy away from the horrible nature of the crimes. The LWOP cases would have been good audio to release immediately -- basic issue, public interest. Contrasting local views on gay rights.

Death Penalty SC Round-Up

And Also: Good summary of the problems with the Stupak Amendment. Some note abortions are relatively cheap (on average one; some are pretty expensive) at $400. Read a joke about needing to borrow $20 from a kid and not being able to pay it back. $400 is not pocket change for many. Plus, lots of covered stuff costs less.

The Supreme Court handed down two opinions this year, both unanimous per curiams, one going each way for defendants. Today's opinion held a lower court misconstrued effective assistance of counsel rules in a capital case; since a strongly defensive legal mind guardedly agrees with it, I'm inclined (fwiw) to as well. The Court has over the last few years shown some concern for counsel in this area, if not as much as the mock opinion in We Dissent would wish.

Justice Stevens (joined by Ginsburg and Sotomayor, who joined another opposition to a death penalty order in her first apparent on record vote) put forth a statement in respect to the Supremes accepting an accelerated appeals process for the sniper:

I continue to believe that the Court would be wise to adopt a practice of staying all executions scheduled inadvance of the completion of our review of a capital defendant’s first application for a federal writ of habeas corpus.

This blog suggests that it is telling that such an uncontroversial death sentence appellate process is deemed quick when it has been going on for six years. It hasn't -- that would be next year. But, as I note in comments there, the case is far from simple. It is a multiple homicide involving different state jurisdictions, one where he was not sentenced in the second state until under four years ago. Such a complicated case would lead state judges to take special care. Since a regular case can take years, why would this not take some more?*

Today was the orals for the life without parole for teenagers in non-capital crimes cases. An article underlines how rarely this penalty is actually applied, most of the cases in Florida and Louisiana (five times in the former), with a little over a hundred overall. The Chief Justice appears to want to push for a sort of conservative middle ground, the sort of thing that we will have to deal with in many cases for some time. His idea is that Roper v. Simmons requires teen defendants to be treated differently, but noted death was different:

The Chief Justice’s alternative would apparently be a declaration that the Constitution’s Eighth Amendment ban on cruel and unusual punishment required judges to take the offender’s youth into account in setting any sentence for a term of years, then judge whether that sentence was “proportional” both for an offender of that age and for the particular crime.

Roper also noted that for teens, various factors require that a hard line be drawn since the possibility of erroneous sentences was too much of a risk. The idea here would be that that only applies to death sentences, though in the 1980s, even there those under sixteen when the crime was convicted (one here was thirteen) was treated differently. My overall concern is that this really has limited effect. Wouldn't the judge already do that sort of weighing when applying a not mandatory LWOP sentence to minors? I'm sure sentencing judges in some fashion take the age into consideration for any sort of crime. It has a phony feel to it.

The net effect, not trivial I guess, would be that the judge would be more open to being second guessed, including in federal courts. This would lead to some overrulings in close cases and court review might also open up more scrutiny to the cases overall. OTOH, these cases can be remanded and the two could get the same sentences. And, Scalia/Thomas never support proportional review.

Anyways, this is the sort of case where at least hearing the audio without waiting a year or so for Oyez.com to put it out would be appreciated. We are dealing with an important issue that at the very least will significantly affect criminal policy in Florida and elsewhere and involves an issue in which the public is interested. It is not some arcane statutory case or whatnot.

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* Since the scheduled examination of the ruling below was due in a few weeks, Justice Stevens' (who did not dissent) statement was not particularly liberal or anything. If anything, it could be considered concerned with smooth federal judicial practice and Supreme Court prerogatives. Still, Sotomayor's acceptance of a vote in support of careful examination in death penalty cases is appreciated.

[Update: The sniper has been executed. Timothy McVeigh at least had a "he probably had help, more than that guy who helped him and did not get executed / don't make him a martyr" angle. The sniper, who does seem to me somewhat deranged, is a pretty hard anti-death penalty subject. He even seems someone more likely to kill in prison, though don't know about those Supermax jobs. Someone even used his teenage assistant against me to justify upholding LWOP for teens.

But, the guy still was a human citizen of this country and you aren't going to have -- particularly in Virginia -- a death penalty that only kills mass murderers that are clearly guilty. OTOH, those who are full abolitionists should be careful not to go over the top in these cases ... most probably were, though a few over at TalkLeft were not. A website that specifically was concerned about one of the Manson gang dying in prison, however, is a good place for that. ]

NY Football = LOSERS

Loving Leah

I re-watched Loving Leah on DVD (it has a "making of" segment) and one lesson in this charming love story is that faith and religion can still have power even if the literal doctrine is not followed. The spirit over the letter. Each realizes this, including the Orthodox mother, adapting it to the reality of their 21st Century lives.

My Rep. Reminds Me What Just Passed [Email]

Reduce costs and increase access to health coverage for the many families and small businesses who are struggling to afford care;

Eliminate excessive co-pays and deductibles for preventive care for seniors, including the gap in prescription drug cover ("Donut Hole") in Medicare Part D;

Make sure that no one is ever again denied coverage because of a pre-existing condition;

Help contain costs for families - including for those who already have insurance - by creating competition and expanding choices within the insurance market;

Reimburse doctors and health providers for high-quality care rather than by the volume of tests and visits - decreasing wait times for procedures, speeding up recovery for patients and eliminating billions of dollars of fraud and waste in our health system;

Empower patients and doctors to devise the best treatment plans by providing them with the best, most up-to-date medical information;

Put patients and doctors, not insurance bureaucrats, in charge of medical decisions; and

Keep medical benefits exactly the same for anyone who likes their current health care coverage.

And, we will accomplish all of this without adding to the deficit - instead we will cut the national debt by over $30 billion dollars. A summary.

House Health Care Bill Passes With Poison Pill Added

First the good news -- the House health care reform bill passed. It is troubling that it passed with two votes to spare and but one Republican vote (Rep. Cao, who got in because his opponent is a crook). We should remember that members do play around some here, concerned about positioning and realizing that the important thing is the the bill passed. But, it still seems a bit off to have such a majority and have to eke out a win. No matter why the people voted against it.

[Here is the Roll Call. Note how Kucinich is a "nay" vote from the left.]

Also, bothersome is an amendment shoved in (which might be removed later, but don't bet your house on it) that screwed women. The thing that really is just plain annoying is that there ALREADY was a compromise in place that went further than many pro-choice members would like. [As to the makeweight nature of these lines, see here.] Like the public option over single payer, however, many realized that in reality you have to compromise. But, like the selfish babies Blue Dogs and other conservative (on whatever issue) Dems have repeatedly shown themselves to be, this was not enough. And, they b.s. about it:

Currently, the House bill contains what’s called the Capps Amendment — a compromise that maintains Hyde Amendment restrictions. The arrangement protects Hyde by specifying that subsidy dollars could only be used to abort pregnancies that threaten the life of mother or result from rape or incest (Hyde allows for this). Other kinds of abortions would have to be funded with private premiums. The provision also requires that at least one plan in each market area offer abortion services and one plan not. No abortion services—even those allowed by the Hyde Amendment — can be mandated as part of a minimum benefits package.

Stupak and his allies want to go beyond Hyde. Under their amendment, women who purchase comprehensive private insurance packages — that include abortion services — would have to pay for the entire cost of the package (even if they qualify for subsidies).

But, they need to shove their religious beliefs down our throats. Their God is more important than other people's God. Firedoglake has a lot more (just one post there) plus a lot of anger. Remember, this is health care legislation. And, the Hyde Amendment model does not have an exception for women's HEALTH. This is totally absurd.* Justice Stevens, who supported the constitutionality of banning federal funds for non-therapeutic abortions (as if early abortion is not safer than childbirth so is inherently so) drew the line at that:

These cases involve a special exclusion of women who, by definition, are confronted with a choice between two serious harms: serious health damage to themselves on the one hand and abortion on the other. The competing interests are the interest in maternal health and the interest in protecting potential human life. It is now part of our law that the pregnant woman's decision as to which of these conflicting interests shall prevail is entitled to constitutional protection.

Firedoglake is angry that this is a blow against women. It is but is is also a blow against women's health in particular. Ah well. Long fight ahead with some more poison pills to bear, I'm sure. But, a bit of sanity tonight all the same. Elections do have consequences.

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* As Justice Brennan noted in his dissent in the same case Stevens did:

Antipathy to abortion, in short, has been permitted not only to ride roughshod over a woman's constitutional right to terminate her pregnancy in the fashion she chooses, but also to distort our Nation's health care programs.

On the health value of all abortions, see Justice Marshall's angry dissent here.

The True Killer

Just to keep things in perspective:

An estimated 25 times as many Afghan citizens die every year as a result of hunger and poverty than from violence, according to a United Nations Security Council report. And as winter descends on the country, experts say, the death rate is bound to shoot up even further. ....

The severe poverty is one of the reasons people go to fight for the Taliban, where they can earn the relatively large sum of $100 a month, Levitt said. The same pressure motivates farmers to grow opium, which earns them four times what they would earn growing wheat.

More here. Related concerns provide support for other organizations that attack those people we like.

A Pagan Joins the City Council

A quarter of its members will be new. Four members will be openly gay, the most ever. The Republican minority, though still tiny, will grow to five from three. For the first time, a majority will be black, Hispanic or Asian. Also for the first time, an Asian-American will represent Chinatown....

The 13 new members include 7 who won seats vacated by lawmakers who pursued higher office; 5 who ousted incumbents; and one who will replace Miguel Martinez, the Manhattan councilman who resigned in July and pleaded guilty to fraud charges.

With the focus on a few key races, including drama upstate when a conservative outsider pushed the local Republican out of the race for a special election per the safe Republican seat leaving to serve as Secretary of the Army, much less attention was given to local races. As noted by the above description, there was some news to be had here. Add to this a pretty close (given all his advantages) mayoral contest for Bloomberg and the first city-wise Asian officeholder, one who was a bit of an upset in the four way race for comptroller, and even an off year election matters. After all, we had a Republican pagan winning:

The society is hierarchical in nature. The group views those that do not belong to them as outsiders. The responsibility of an individual is to the family, the community, and to those bound by oaths of support. Outsiders have no standing in this society, although hospitality is an important aspect of the culture. Theodism doesn't recognize inherited positions of power. The individual must prove their worth through their deeds. No on is automatically important by right of birth.

More here* about the "adherent of Theodism, a neo-pagan faith that draws from pre-Christian tribal religions of northern Europe" who became one of those few Republicans in the city council. There are two Buddhists and one Muslim in the U.S. Congress, and one self-expressed atheist. But, never heard of any pagans! And, look who is an electoral commentator yet again:

The word “pagan” carries many connotations. “It denotes a particular historical and reality, a set of beliefs,” said Melissa Harris-Lacewell, a professor of politics and African-American studies at Princeton who worships at a Unitarian church that has pagan members. On the other hand, she added, ” ‘Pagan’ is used as a slur, and a way of using a corrupting religious tradition.”

There's more. Interesting. Also interesting, is this discussion on Laura Flanders' show about the perils of extremism on either end of the religious debate. As to how things will change with a bit more new blood and a sign that the electorate were concerned about the old way, shall see. A decent amount of novelty is well a bit novel around here in most political races overall.

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* The reporter here, Jennifer 8. Lee, often writes about local issues and food. She also wrote a book about Chinese food that had some interesting stuff in it.

I recently had soy bean sprouts, more of a Korean food, but one with a lot of nutrient. Less taste by itself, but along with TVP, a very cheap source of protein that can be mixed with other stuff. I soaked the TVP in some diced tomato product and it was quite tasty on a roll with or without vegetables.

LWOP For Teens?

This post on life imprisonment/the death penalty has received some hits. Brings to mind the upcoming case on life imprisonment without parole for teen offenders. Some thoughts here. Meanwhile, same sex marriage (even if passed by the legislature /supported by the governor) remains a line in the sand.

Italy Like Canada Shows How It Can Be Done

GG has a good account (and related video) of the independent Italian prosecution of a kidnapping [extraordinary rendition]. See also, Ghost Plane and how ignoring extradition treaties are of limited concern here. And, here as to terminology. Also, here. Things got worse, but they have been suspect for some time.

Pettite and Company Clinch It

Matsui, who hit in the winning run off Pedro last time (who did fine that time), was responsible for six this time. In a throwback match-up, Pettite (who was the losing pitcher in 2003) on short rest does the job, while Pedro does not. And, Marte gets a key out too.

Voting When It Doesn't Matter TOO Much

And Also: What GG said about the Arar decision. Unlike Canada, our government has no shame, and the courts (7-4, Sotomayor avoiding it by elevation) have enabled them. More on Democracy Now!

The impulse is not to vote at all. Fight it. Look at it as a challenge. Anybody can vote in a historic contest like the last presidential election. Then, you felt part of history being made. The test comes when it just feels like history being perpetuated.

-- Michael Daly

Daly notes that the good mayor has done various things to make NYC a nice place to live (overstacking the case some) but his late move to help overturn term limits (against the will of two popular referenda on the matter) leaves a bad taste in the mouth. The opposition might be a nice guy and all but nothing to be too excited about. This makes it fairly typical in this one party town, even with a few races that made things interesting, including a few city council races that were in part a message sent to the city council president deemed too friendly to the mayor.

All the same, we have a civic obligation to do our part as citizens. Is that not the point of democracy? The basic ceremonial act, in fact, even if it means a lot more (including being an educated voter, not voting willy-nilly, and being aware and vocal about the issues of the day). This is not the same thing as saying you should be forced to vote. OTOH, that piece -- "The net result: nothing, save for the warm glow of civic virtue that comes from bullying your neighbors into pulling a lever, any lever." -- left something to be desired. A duty ala jury duty would logically include some education on the issues, etc., as some comments noted. And, the "any lever" -- just close your eyes! -- is simply not what people say.

This is not to say the races are matters of grave importance in various cases. She has supplied some good commentary on various issues, but Melissa Harris Lacewell's commentary on Rachel Maddow last night on the point left something to be desired. [For example, some locals argue the third party candidate in New Jersey very well hurt Gov. Corzine.] MHL's forte is not political commentary of this sort and she was not the person to go to for that. A few races might matter nationally, including the measures for or against domestic partnerships and same sex marriage. And, some sorts will try to make a few Republican wins important, if people let them.

Other than mayor, I had two sets of judges (the voting guide helped me out with the ballot measures* but not here -- again, what is the point of voting for people no one knows anything about? what else but party association do we have to go on?), comptroller and public advocate (who's main responsibility is to fill in if something happened to the mayor), and my local councilman (with only a conservative party opponent, who unlike the race upstate, is truly just a token one, also not referenced in my voting guide**). There was coffee and cakes, but for sale by the school wherein the voting took place.

One last thing -- concur with HS on political robocalls, except for the concern that the First Amendment is being harmed. The First Amendment doesn't require me to get them in my E-Mail box. They surely don't require me to deal with them on my telephone. Obnoxious.

[The mayor actually robocalled me today to let me know that there was low turnout in my voting district and encouraged me to vote since every vote counted and we needed to continue the good times he brought us. I doubt the race was so close that this matters in the least. OTOH, as with his many commercials -- many negative -- it can also be explained by the fact he has loads of money to spend.

Update: Well. Though NYT is calling it for Bloomberg, the difference is now only a couple percent, half that not too long ago. And, this with a lackluster opponent and a war chest that could have gave something like $10 to every resident in the city. Plus a record that even the Village Voice made look decent enough. His ego trip / changing the rules in mid-stream approach did bother a good many voters. Also, Rachel Maddow ridiculing a few decade old paper didn't stop the Republican from winning in VA and ML was wrong about NJ.

... Still close, but in the last hour or so, a one point lead became a more comfortable five point.]

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* I asked my three local NY representatives about the second measure ("authorizing the Legislature to allow prisoners to voluntarily perform work for nonprofit organizations"). I got a notification that my email was received from one, another didn't have a position, and the third did not respond. The other measure:

The proposed amendment would authorize the Legislature to convey up to six acres of forest preserve land along State Route 56 in St. Lawrence County to National Grid for construction of a power line. In exchange, National Grid would convey to the State at least 10 acres of forest land in St. Lawrence County, to be incorporated into the forest preserve. The land to be conveyed by National Grid to the State must be at least equal in value to the land conveyed to National Grid by the State. Shall the proposed amendment be approved?

Ah, to practice direct democracy as honored by the 10th Amendment!

** The guide lists the various nobodies running in the third parties for mayor, including for the "Rent Is Too Damn High Party," but third party opposition in other races was somewhat haphazard. They should do something about that. You would think the third parties would make darn sure that they could reach the sizable audience who receive these guides for free in the mail or elsewhere.

Sports Update

I talk about the draft and other stuff on this thread. Lee was mortal, but the Phils hung on (barely) as a bit strangely AB was started on short rest. Gaudin has pitched decent -- up 3-2, I think he could have been trusted. He's not Kenny Rogers.

Scalia v. Breyer

Scalia recently promoted a dumbed down originalism and caricature of Breyer's living constitution approach. Breyer comes off as much more in the reality based community; Scalia a FOX talking head. Helped by fiction such as that Justice Harlan supported the Brown position.

Sun Quickies

Pathetic: Giants, Jets kickoff coverage, Phillies closer. [Maybe he couldn't do it, but they really had to start Lee today.] Bland: Amelia story, supporting cast. Good: Amelia lead.