NY State Senate: "Sorry Gays!"

The NY Senate can be as much a mess (divided 32-30 with the balance held by boobs) as the federal model, even if they are not so unevenly apportioned. See, e.g., voting down same sex marriage, after the assembly supported it by a large majority. We need a civil union bill like our neighbors in NJ. BTW, Senate Republicans = 100% anti-gay.

A Complete Look At Anne Frank

Anne Frank: The Book, The Life, The Afterlife by Francine Prose does a great job analyzing her diary (more an edited memoir), providing historical background, writing analysis, discussion of the aftermath (including the play and film) and current educational use. Provides a fuller understanding in a way attractive to a general reader.

Informed Consent for "Crisis Pregnancy Centers"

And Also: Don't care about the Tiger Woods drama. Good finish to last night's game, even if the Ravens deserved to lose given all the chances they blew. The other team's third stringer did well, except at the very end (in OT), when another rookie picked him off. I like the NBC announcers more than the ESPN team as well, including Madden's replacement.

"Crisis pregnancy centers" are the target of a yet to be signed local law that requires them to use signs to inform potential clients that no birth control or abortions services are inside. The background to the law is informative as is the citation in the Slate piece of someone trying to compare it to laws like forced ultrasounds for abortion clinics. This Common Secret discusses some of the false information such centers provide, even putting aside the fact that even if you oppose abortion, not getting birth control referrals is likely to surprise:

The individuals who contact federally funded pregnancy resource centers are often vulnerable teenagers, who are susceptible to being misled and need medically accurate information to help them make a fully informed decision. The vast majority of pregnancy resource centers contacted for this report, however, provided false or misleading information about the health risks of an abortion. This may advance the mission of the pregnancy resource centers, which are typically pro-life organizations dedicated to preventing abortion, but it is an inappropriate public health practice

So noted a report by Rep. Waxman, one important since such centers receive government funds. Slate fray response to the article included some recognition even from conservative sorts (shown by joining them with ACORN, an unfair comparison as others noted) recognized the difference between support of a cause and misleading ways of promoting it. This is appreciated. OTOH, see this thread for those whose views blind them to reality. This includes the idea that a sign requiring a clinic to say "baby killing inside" is akin to one that says "no abortions inside." It is one of those times you realize that some people just have different thought processes than you.

This includes a colleague of the Slate writer cited in the first link, who wrote this tripe:

The Baltimore City Council has passed legislation that would, if enacted, require crisis pregnancy centers to display signs saying that they don’t offer birth control or abortions. This measure is annoying on a number of levels, as the libertarian in me generally supports a business’ or charity’s prerogative to operate according to its own mission and guidelines and beliefs. I mean, it’s a bit like telling a Catholic church it must post a sign saying there are no Torahs or Qurans in the pews: Duh. It's also insulting to the women who go to these centers: Aren't they smart enough to figure out pretty quickly what a place has to offer? If they wanted an abortion, wouldn't they have sought out Planned Parenthood or an abortion clinic?

No, women (and teens) do not always know centers advertised as providing "abortion counseling" would not provide counseling in which abortion was one option, but might not even provide birth control information. They are not in the know like you, realizing -- as compared to those about to enter a church and not expecting Torahs -- just what these places are all about. Likewise, a sign to dispel confusion is not doing much to interfere with their operation. And, maybe the girls or women believes the centers (partly from anti-Planned Parenthood rhetoric) would be a nicer place, or they passed them and were curious? More fiction:

Neither side is going to reduce the number of abortions or unintended pregnancies by telling the other side how to deal with the women who come to them.

Not true. A myriad of regulations, including those upheld in Casey, have the intent and/or effect to do just that. You can be pro-life (or whatever) as the writer of that sentence and be honest about such things. I assume so at least. For instance, waiting periods, teenage consent/notification laws, "informed consent" scripts that speak of "unborn children" or false/misleading information as to the harms of abortion and so forth affect the number of abortions. Regulations that burden even the provision of contraceptive information, particularly for minors, including Plan B, will also affect the number of unwanted pregnancies. This is often the point.

Family planning is among other things a health service, so informed consent is an important aspect of regulation, even if (as Susan Wicklund noted in This Common Secret) it should be flexible enough for the provider to fit it to the needs of the client. This includes regulation that the provider might rather not include, but is acceptable commercial or professional speech regulation. As Justice Blackmun noted (citations and quotes omitted):

I agree that the State may take steps to ensure that a woman's choice is thoughtful and informed, and that States are free to enact laws to provide a reasonable framework for a woman to make a decision that has such profound and lasting meaning. But ... the means chosen by the State to further the interest in potential life must be calculated to inform the woman's free choice, not hinder it.

Particularly in context of non-clean hands, the proposed law allows anti-choice services while preventing what amounts to false advertising. Informed consent laws generally are focused on family planning centers that already are comprehensive in their information, Dr. Wicklund, for instance, already had a practice of performing ultrasounds and providing them as an optional service. But, fairness dictates that both sides are treated the same here.

Those behind Hyde and Stupak do not believe in fairness, but hopefully Baltimore's efforts will win in the end.

Football

In a battle of 4-6 teams, the Jets play fairly well, the vet QB is interception prone. A 8-8 record or better would be a moral victory at this point. Some late wins against underdogs including a down to the wire effort by the Falcons; the Titans (a better match-up than the Kansas City game shown here) had some finish via a 99 yd drive.

Book Talk

And Also: New books on side panel.

I cited T.R. Reid's book via link recently. It is a good analysis of what is wrong with our system, particularly by comparing it to the systems in other nations. The link provides a good summary of the common myths of said systems, including the "socialized" medicine label. Reid, whose experience living in various systems helps add weight to his analysis, believes (as I do) that the core issue is moral. This is a major reason why other nations (as arguably does ours) protect it as a right with positive economic effects following.

It also seems a better selling point, given how successful Obama has been with idealistic rhetoric. Not only is a moral message harder to negate (oh, so you do believe young people should die, as they have, because of lack of coverage?) but because in the short term, it might cost more. A better health system is a long term investment, though an unified system (which might include one set of rules that are carried out by different providers) with universal coverage as well as non-profit financing in the long run will be cheaper.

The book is best seen as a window into different systems, including those in Taiwan and Switzerland which are relative newcomers to the European model. It provides introduction to the major models with a summary of how they were established in their countries (Germany, Great Britain and Canada leading the way). It points out to the problems with our system (which costs more to supply worse care) and includes a chapter promoting the importance of prevention, which our system in various respects does not encourage.

Unfortunately, and I don't know why for a book written in 2009, it does not talk about the public option (or immigrants, which is a major issue in this country and others). Reid seems even to not truly understand the contours of the public option debate here. A properly regulated system, apparently, in his view would not need a public option (which does not seem to match any of the models he discusses), but as with the immigration issue (a chunk of those uninsured are immigrants), it is an important matter to cover respecting getting a plan in this country. This includes as a first step to a better one.

Paul Krugman in his excellent book Conscience of a Liberal, which I was able to download for listening directly from my library, does deal with the public option. He argues that health care is a key first step for a new liberal 21st Century. It is important not only economically, but as a way to show that liberals can provide programs that promote equality. Again, though an economist, ultimately his message is a moral one. The book as a whole is a good summary of politics in the 20th Century, including the development of movement conservatives. And, the inequality they promote.

Both books are useful reading, especially as Talking Points Memo already is trying to depress us (as if Glenn Greenwald et. al. are not almost daily) about the 2010 elections.

"arrogance cloaked in humility"

And Also: Glenn Greenwald today notes how someone argues that it is strange to be "disappointed" by Obama's civil liberties record. But, we should have been on guard already, even if we opposed what was happening. Given his switch on immunity alone, which GG himself strongly opposed at the time, disappointment (as compared to strong opposition) on some level is downright naive.

[I referenced a slightly different version of this before, but added a few things and provide it for easier access.]

Justice Scalia is to be respected for going out of his way to debate those who disagree with him, including opening up his book analyzing his interpretative technique to critical analysis to historians and liberal law professors or debating Justice Breyer (who has his own book, but no critical commentary attached to it) recently in a meeting broadcast on C-SPAN (and available on its website). Too often, the likes of Justice Kennedy writes an opinion that does not answer the arguments of the dissent, or even do some job facing up to them.

Justice Scalia's debates with a continual line of justices (Brennan, O'Connor, Stevens are favorites, Stevens/Scalia still often sniping at each other in separate concurring opinions) provide a great service, even if you think one or the other side make poor arguments. This includes his bluntness, pointing out things that some justices rather left unsaid. All the same, again, this does not mean his arguments are always soundly reasoned. In fact, Scalia in his most bombastic moments partakes in what Justice Brennan (challenging Attorney General Meese) once called some orginalist's "arrogance cloaked as humility."

I must admit this is one of the less enjoyable aspects of those who argue for this type of constitutional analysis. They, we are assured (mixing that arrogance with disdain), are not like "living constitutionalists," who make things up as they go along to promote their own desired policy goals. They are restrained by what the Constitution was originally understood to mean (the nuances of how to translate this can be as tedious as medieval theology), which avoids "judicial activism." As the link above claims:

At the end of the day, Justice Brennan’s primary concern was that the text of the Constitution be construed to produce what he deemed to be good consequences.

IOW, Brennan et. al. was not concerned with interpreting that actual Constitution, but some idealized version of it, unlike Justice Scalia et. al. who are loyal to the actual text and original understanding. However, the critics too often sound like they themselves want to promote certain "good consequences," such as avoiding judges from having too much discretion. Consider:

Justice Brennan’s final error was that he raised the level of generality of the Constitution in order to justify his desired leftwing outcomes. He described the Bill of Rights as protecting human dignity, for example, and then asked whether the death penalty is compatible with human dignity.

The author, like Scalia, says, wait a minute! The Constitution does not say "human dignity," but "cruel and unusual punishment." But, what does that phrase mean? What was the original meaning and intent behind such words? Well, yes, in part to promote human dignity. So, when you interpret it, you need to keep that in mind. It is not as if that is all he used. For instance, his opinion in Furman v. Georgia provided an extended analysis of the amendment, with history, precedent and so forth discussed. He might have been supportive of "human dignity," but he used constitutional analysis to promote it. And, this requires analysis of a text with a lot of generality.

[This does not mind that Brennan, any less than Breyer at certain points (see below), did not at various times become too single focus, colored by certain ends over analysis of a document that requires balancing others as well. But, this applies to many people. The arrogance here is being selective, tossing stones in glasshouses, one might say.]

And, the critique notes that the Constitution does not promote broad principles like "dignity," but particular securities such as free speech and the right to counsel. But, not only are the specific protections rather general (cf. state constitutions that have a lot more verbiage to discuss freedom of speech etc.) but others are very open-ended. The upcoming oral argument to determine if "privileges or immunities of citizenship" includes the right to own a firearm underlines the point. When faced with such open-ended provisions, provisions that the FRAMERS spoke about in open-ended terms, people like Justice Scalia (and Justice Black before him) in effect ignore them:

The Declaration of Independence, however, is not a legal prescription conferring powers upon the courts; and the Constitution’s refusal to “deny or disparage” other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people.

Cf. Justice Thomas' opinion that actually realizes that something like the right to raise your children is a right protected by the Constitution, one that in part was intended to be secured in part by judges. In fact, and this is one reason why I'm with Souter in saying that it's okay to use "originalism" as long as you do not expect too much out of it, it is not like originalism necessarily leads to conservative or Scalia-like outcomes (to the extent they do not overlap). A progressive can use original understanding as well, see also, Justice Stevens' dissent in Heller. The failure to recognize this fact provides an additional factor -- delusion.

Overall, what if it was intended for the Constitution to have open-ended terms that have a core meaning but whose specific meanings develop over time? In fact, when writing the Constitution, as Jack Rakove noted in his award winning book,* this very principle was in the mind of those who wrote the final draft. And, this is what the original public meaning of the document held. Thus, James Madison himself accepted public understanding that the Bank of the U.S. was constitutional, even though he at first argued it was not. There was play in the joints, the matter was discussed and examined, and the weight of experience went in a certain direction:

"Congress, the President, the Supreme Court, and (most importantly, by failing to use their amending power) the American people had for two decades accepted the existence and made use of the services of the First Bank," and he viewed this widespread acceptance as "a construction put on the Constitution by the nation, which, having made it, had the supreme right to declare its meaning."

But, a problem with some who cite original understanding -- a bit too often with a chip on their shoulder -- is that they are selective about it. They cite certain bits of original understanding, certain advocates and claim that this means that one specific viewpoint is compelled. A justice who respects such original understanding as part of determining constitutional meaning along with years of precedent and current understanding of the text and principles set forth is wrong to deny the clear command of this selective round-up. They are not themselves choosing this viewpoint, mind you, it is what the original understanding set forth. This is so even if an examination of things on their own terms can result on something quite different. [Substantive Due Process is a prime example.]

Thus, I debated someone, and get cites of Franklin Pierce, Grover Cleveland, and one of FDR's brain trusters to challenge my understanding of constitutional principles.** When we recall that Hamilton and Madison debated what the Constitution means, citations like these simply have little weight in the end. Suffice to say many at the time had competing views. BTW, The Federalist Papers is not a great source either -- they were a series of op-ed articles that selectively discussed the Constitution, and reliance on them is akin to citing op-ed articles by two legislators defending some referendum they want passed.

It is even worse when the citations are poorly done, as when Scalia cites George Washington saying something religious in a speech to justify prayers in public school graduations or John Harlan's dissent in Plessy v. Ferguson is cited to show how obvious Brown v. Bd. is when John Harlan himself accepted not only school segregation but interracial marriage bans. Just on a pragmatic level, experience shows that originalists are not much more restrained or accurate in their analysis than those who do not rely on original understanding as a primary source.

I would end with a query on if original understanding as such is really Scalia's goal here. At times, it seems he uses it as a means to an end -- as a restraint on judicial discretion, a way to promote his desire for clear rules and distaste for determining things like legislative intent (resting on the original understanding of the community who ratified helps avoid this). But, he is supposed to be interpreting the law here. Sometimes, you have to examine legislative intent in hard cases, sometimes you have to interpret open-ended constitutional text that can very reasonably be said to develop over time, even if this seems too vague and discretionary to some people.

On this, Scalia's sometime nemesis -- Justice Breyer -- might be a fitting last word:

I see no test-related substitute for the exercise of legal judgment. That judgment is not a personal judgment. Rather, as in all constitutional cases, it must reflect and remain faithful to the underlying purposes of the Clauses, and it must take account of context and consequences measured in light of those purposes. While the Court’s prior tests provide useful guideposts–and might well lead to the same result the Court reaches today, –no exact formula can dictate a resolution to such fact-intensive cases.

Some ridicule Breyer's approach, claiming that they do so tied down by original understanding. Too often, this is arrogance (with a bit of delusion too) cloaked as humility.

---

* Original Meanings: Politics and Ideas in the Making of the Constitution notes that Edmund Randolph gave the committee of detail (some appear to think each word of the Constitution was debated and thought about in detail by each Framer in detail when in fact broad principles were while most of the final language was written late in the day and agreed upon without much more debate) this advice:

In the draught of a fundamental constitution, two things deserve attention:

1. To insert essential principles only, lest the operations of government should be clogged by rendering those provisions permanent and unalterable, which ought to be accommodated to times and events. and

2. To use simple and precise language, and general propositions, according to the example of the (several) constitutions of the several states. (For the construction of a constitution of necessarrily [sic] differs from that of law.)

IOW, sometimes "general propositions" would be used in which "essential principles" are reaffirmed, but not in terms so narrow and exact that there would be no play in the joints as specific application will not change as the times change. Chief Justice Marshall spoke of this principle in respect of congressional powers but it also applies to the document as a whole.

** I still laugh at this -- Franklin Pierce? Even an originalist is better off not citing that guy. The brain truster apparently (I saw the reference in another originalist account) is something of a common trope. He argued the New Deal in effect ran against to the limited powers of the Constitution. A bit of digging, often useful, suggests this guy is far from typical.

Apparently, all the others who disagreed, along with the judges et. al. are to be ignored. Their sentiments are curiously not cited with so much weight. It is as nifty as those who cite post-New Deal disrespect of property rights, ignoring all the other rights disrespected in the alleged Golden Age.

Various

A discussion by me on arrogance cloaked in humility respecting originalism. Meanwhile, Prof. Balkin defends the constitutionalism of health care reform. Also, this guy's book on health care is pretty good so far. In fact, not bad mandatory reading for senators.

Thanksgiving Turkeys

Time to pardon a turkey. This after a state dinner was vegetarian given the tastes of the Indian leader honored. Why not a vegetarian Thanksgiving? Meanwhile, a punt in a local out of state same sex marriage ruling. I'm with the concurrence. [Giants football]

Football Tedium

Bad play is tedious -- the Bears and Houston in late games, for example, at key moments choked such as not making field goals or completions that had to be made. Also, coverage of the Jets has been tedious. The rookie QB was bad against the Pats, after the Jets beat them earlier and the Pats lost to the Colts. Shocking. And, other reasons contributed to more loses in the end than the QB.

Allah

Per the legislative prayer matter: the article now cites an opinion that "Allah" is sectarian if used in an English invocation. But, as my reply to that comment notes, the word on its own is used by Arabs of many faiths. And, the ruling below is not targeted to "Jesus," but "using Christ's name or title or any other denominational appeal."

An Abortion Doctor Speaks Out

A month or so ago, CJ Roberts introduced a new series of stamps that honored Supreme Court justices (Frankfurter, Brennan, Brandeis and Story), the ceremony airing on C-SPAN. I just received my strip in the mail via the USPS website at cost plus a dollar tax. It comes in plastic on a strip that says "Justices of the Supreme Court of the United States" on the bottom and "We the People" on top. Not bad.

I also recently referenced Divine Souls, which is available free via IMDB. I know of it because the lead actress played a quite different role in It's In The Water, a comedy in part about the fear that the local water supply is making people gay. Divine Souls is an independent film about a nurse at an AIDS hospice, particularly her trouble dealing with a dying ten-year-old boy she has fell in love with there. Well acted, touching fare. It also reflects just what one can watch free online these days.

Abortion is a "common secret" in that 40 percent of American women have an abortion during their childbearing years, but it's rarely spoken about.

This Common Secret: My Journeys as an Abortion Doctor by Susan Wicklund (with Alan Kesselheim) is a useful way to learn a thing or to about being an abortion doctor in the United States, particularly in more isolated areas of the country. Her own story is worthwhile on its own (single mom turned doctor, took time off to care for a dying mom, etc.) without the additional discussion of her work. This includes the pressures and real life danger (including harassment at airport garages and her own home, where she was in effect blockaded). Plus discussions of patients and how she works.

As noted here, it is not so easily stereotyped, at least if one is fair about things. The book puts into perspective those who support some limits on protests -- do justices like Scalia or Kennedy truly take into consideration the lines crossed? I am strongly in favor of freedom of protests even here, but at some level harassment and clear violation of private property has to be taken into consideration. She also talks about the dangers of stock and often misleading informed consent laws and waiting periods. And, teen patients are referenced too, though her Supreme Court ruling is not.

Ultimately, and her career as a whole reflects this, Dr. Wicklund cares about the lives of her patients. [Some rather not use "abortion doctor" since it is limiting ... the subtitle of this book suggests some are comfortable with the term.] She notes that some providers are too rule based, not taking the needs of the individual patients into consideration. She still is haunted by a (legal) abortion she herself had where her own needs were not respected. Sometimes, she counsels her patients not to have an abortion. This is what "pro-choice" means -- giving the person a choice, including if the choice is not to have an abortion in the first place.

All must remember this -- the courts, nurses and all else involved.*

---

* See how I connected the three things in this post together?

Football

Some good games so far, including upsets by the scrubs going against the Steelers and Bengals (so, it evened out). The Giants (alive) survive another late game collapse, since they weren't only up by six this time, winning in OT. The Jets (done), as expected, lose to the Pats. The Redskins can't help the Giants, losing late 7-6.

Sunday Quickies

Today is the 46th anniversary of the assassination of JFK. I discuss a controversy that helped delay Judge Hamilton's elevation to the 7th Circuit here, involving legislative prayer. Free online: Carrotblanca (cartoon parody) and Divine Souls [ironic given previous work by lead in It's In The Water, where she shuns such work].

60-39 for cloture -- whoopie!

Republicans (one retiring didn't vote), including "moderates," don't want the Senate to even debate health care. So, clearly, they are not to be taken seriously. Ditto news reports who cite the likes of Ben Nelson as "moderates." [Centrists?] Who are the conservatives?

From the mouth of babes ...

For example: use of "Republic," if rendered to distinguish our government from a "democracy," or the words "one Nation," if intended to distinguish it from a "federation," open up old and bitter controversies in our political history; "liberty and justice for all," if it must be accepted as descriptive of the present order, rather than an ideal, might to some seem an overstatement.

-- West Virginia State Board of Education v. Barnette

Though its senator threatens to filibuster her own party if it includes a public option (expletive deleted), the people in her state are not all bad. For one thing, a vast majority of state Democrats support it. And, there is where a ten-year-old student decided not to say the Pledge of Allegiance because gays don't seem to be getting the liberty and justice for all business it talks about. For this, though an interviewer didn't quite get the reference, he is being harassed and called a "gaywad." (Steven Colbert had a good bit on this a few days back.) A local columnist supported him while daring to question the whole ritual:

You cannot force somebody to promise fealty in this gloriously free country.

Having our little kids stand up in public school and salute a piece of cloth to vow faithfulness to their nation is harmless in nearly all cases, like a rhythmic and memorized child’s prayer before meals or at bedtime.

But a mass forced pledging of nationalistic allegiance is, when you really think about it, a perversion of the greater notion that we love and support our country by our own choice and for the very freedoms it grants us, including the freedom not to have to spew officially required words or mantras or chants.

As Justice Black noted in his concurring opinion, a required pledge is "a form of test oath, and the test oath has always been abhorrent in the United States," which I'd add isn't erased by current op-out rules. The pressure to conform still applies, even if brave and principled students decide not to, even in the force of ridicule or harassment. Indirect coercion applies too. But, even with a clearly sectarian addition later added, the pledge still is common practice. This is so even though many don't truly understand it, including just what a "republic" is.*

So, there is room for acts of dissent that stands out because some want those rote words to mean something. Way to go Will Phillips! You taught us all something.

---

* Hint: Not one where majority always rules or where judicial or other countermajortarian moves always violate "for what it stands."

"the law"

And Also: The movie Downfall was in part based on the memoirs of a young secretary, Until the Final Hour by Traudl Junge with pre and post Hitler material added by editor Melissa Muller (who also has a bio of Anne Frank). Interesting perspective, almost trivial at first, but gets darker as the war goes downhill. Good notes on the dramatis personae -- wish more histories had that!

[Slightly edited for style and last paragraph / update added.]

“I don’t understand the concept of extraordinary success,” Chief Justice Roberts objected. “The results that are obtained are presumably the results that are dictated or commanded or required under the law.” The chief justice said the outcome of a case “should be what the law requires, and not different results because you have different lawyers.” Could a district judge really suppose, he wondered, that “if it weren't for how good you are I would have made a mistake?”

-- Linda Greenhouse

Greenhouse suggests that this sounds like Justice Sotomayor's motto of just following the law. Mr. Umpire here might have missed the point though as suggested by some replies to her piece. The result here was a successful challenge to problems in a foster care system. It was in some part a result of the efforts of the lawyers, who were able to obtain "extraordinary success." If it was just a matter of the law, as Greenhouse notes with tongue slightly in cheek, why would some pay John Roberts' upper scale fees? Maybe, it is not just what the law is, but how the case is made and applied?

“My personal and professional experiences help me listen and understand, with the law always commanding the result in every case.”

Justice Alito noted to the Federalist Society that this statement by Sotomayor was far from controversial, but some people were upset about it all the same. Controversy was not the problem, of course, and it is inane to suggest that was the problem. The problem was that "the law" is not a clear-cut affair, especially when discussed by someone who speaks about "wise Latinas." But, the saving grace is that her comment (and that speech) suggests she knows this, even if it is in bad form to spell it out to Congress. A bit of spin at the hearings is part of the program though some believe in utopia.

"The law" does command the result -- judges do interpret "the law." But, how does a judge determine the law? Part of the mix will be their "personal and professional experiences." These things "help [them] listen and understand" the law. By the nature of things, people with different experiences will view things somewhat differently. This is a good thing -- you have nine justices in part because they each will provide some non-fungible experiences and insights to the table.

They will likely see things differently in the process. Comparably, Holder saw things different than his predecessors. This doesn't mean any them are unreasonable. It does show that it is more than just following the law.

[Update: Here Roberts tosses a cheap shot against special masters, comparing them to clerks. Now, some might say clerks do have some power, but as the article notes:

Here are just a few ways in which special masters are different from law clerks: Special masters get paid upwards of $500 an hour, they collect the entire record of the case, hold hearings, manage the litigation from start to finish and make lengthy public recommendations to the Court that form the basis of the Court's resolution of the case.

No wonder Greenhouse in another context compared Breyer's questioning style to "Justice Scalia’s posturing on the bench and Chief Justice Roberts's badgering of counsel."]

"still be far better than any of the available alternatives"

And Also: Funny Get Fuzzy (Trojan Ferret!) and Pearls to Swine (new enemy: cows, Rat as talk show host) clips last week or so.

In the end, KSM will be convicted and America will declare the case a great victory for process, openness, and ordinary criminal procedure. Bringing KSM to trial in New York will still be far better than any of the available alternatives. But the toll his torture and imprisonment has already taken, and the price the bad law his defense will create will exact, will become part of the folly of our post-9/11 madness.

At the end of an article talking about how trying KSM et. al. (the others that will be tried criminally also rans at this point in most of the coverage) will lead to various rulings perverting the rules, a criminal defense attorney tosses that in. The italicized portion is my emphasis. Let's not totally bury the point that sort of ruins the buzz of the rest of the article for some people. Even with all of that, it STILL is the best thing to do. Such is the judgment as well of this op-ed by Steven Simon, Adjunct Senior Fellow for Middle Eastern Studies.

Does this mean it will be pretty? No. But, the realistic supporters of the choice will unlike many on the other side play fair -- they will note the problems but not ignore that the alternatives leave much to be desired as well. The "toll" will occur somehow no matter what. If these people are tried by military commission, they will have lawyers too and the bottom line will likely be a way to paper over torture and other mistreatment. Bad law can result there for future cases too. Not that bad law (at times ignored when new litigants are involved, see also Bush v. Gore) is a stranger to other controversial trails. Mobsters, for instance, have a special kind of justice.

I also think many Americans are honest with themselves here. This "great victory" business is good for the naive and public statements by politicians, but others know better. And, we know even your OJ had far from "ordinary" criminal procedure.* So, who really thinks these guys will? Seriously, let's cut the sarcastic disdain. We have a lousy situation here, and whatever is done will be imperfect, a mess even. Too many people to deal with, torture and other stuff making it even harder. Many Democrats (like Sen. Webb and his Pearl Harbor references) are not helping much either. As to Sen. Graham, see here.

So, we can at best hope for a far from great victory. By now, I think most of the country realizes this, but lots of b.s. commentary will fill the airwaves. This doesn't mean the path taken by the Obama Administration, especially some of their too gung ho assurances of success (enemy combatants can be held without criminal convictions, but their freedom of movement is not as much as their rhetoric implies) and talk about using whatever works best to convict is too admirable (see, e.g., Glenn Greenwald today). But, let's not be overly shocked about gambling in Casablanca. And, imperfect justice is not the same thing as sham justice.

Going to be a lot blather, helping people forget the old dispensation was to leave these people in holes somewhere, a path even Bush found unworkable at the end.

---

* Some of the complaints have a real naive feel to them. For instance, the cry that having these defendants tried in this way and location is a "show trial" [just like in Russia, right?] and selectively chosen because it is the best way to get a conviction.

Forum shopping and prosecutorial discretion? No! When terrorists are not involved, prosecutors would never do that. They would not selectively choose the people who would best have a shot at being prosecuted. They would never ahead of time assure victory -- it is always "innocent until proven guilty!" here.

Various

As a fan of The Penguins of Madagascar, found the Madagascar Christmas special (penguins minor characters) lame. Volokh Conspiracy is hot for the upcoming gun cases. The two main briefs (covering due process and privileges or immunities) are interesting and well done. See also, Balkinization on judicial nominations.

I’ll Scream Later

I have enjoyed Marlee Matlin in various things, including the t.v. show Reasonable Doubts, and she was a great sport in the recent Family Guy live special. Her new autobiography is an enjoyable light read with some moments of seriousness. It is about her life, not being deaf as such. For instance, we learn nearly nothing about the tiny amount of hearing that appears to linger on. Curious about that.

Governmental Duty To Affirmatively Act (Our Right To Have Them Do So)

And Also: I'm not quite sold about the move, but a NY Daily News columnist was a (to quote him) "dummy" to ridicule the move as just plain moronic. As to the 'Boys, well happy for the Packers, but it sort of gives the Giants more hope than they probably deserve.

The special election for an upstate NY House seat in the end played out how the Constitution provision involved suggests it should. House seats are ultimately about local issues, and though it is not compelled by the text, the district system of selecting them highlights that. The Conservative Party outsider was not really concerned about local issues, and had a now infamous session with local press that highlighted this. Really, this is not surprising -- a third party candidate is focused on their issues. Problem for the Republicans was that events overwhelmed things.

Meanwhile, the Republican Party candidate (a state legislator) had some real social liberal bona fides (pro-choice, supportive of same sex marriage). She was not a kneejerk party ideologue sort. Rachel Maddow how her on and didn't ask her about such things (what about the health care bill?). But, and an endorsement from a pro-choice group highlighted the fact, she could well have been an asset as a sane voice in the Republican caucus. There appears to be some. Instead, someone some fear is a Blue Dog sort won. The Republican, who endorsed him, very well might feel comfortable in that caucus.

I say public life with no reference to the incumbency of political office. By the public life of an American citizen I refer to his life as a sovereign; to his constant participation in the active government of his country; to the continual study and decision of political issues which devolve upon him whatever may be his occupation; and to his responsibility for the conduct of national and State affairs as the primary law-making, law-construing, and law-executing power, no matter whether or not he is personally engaged in the public service as policeman or President, as any State official whatever, member of Congress, Chief-Justice of the United States, or a humble justice of the peace. In republics official stations are servitudes. The citizen is king.

The context of this quotation, by a late 19th Century member of Congress, can be found in my discussion here as well as this law review article ("Education, Equality and National Citizenship") cited there. The article is an interesting one, underling how originalism and history is not really the enemy of the liberal point of view -- "originalists" tend to have a slanted view of things that often enough is a shallow view of the complexities of the situation. For instance, if Justice Harlan was so right in Plessy, why don't conservatives support his dissent in the Civil Rights Cases? They do realize St. Harlan also supported laws against interracial sex, right?

The discussion highlights the importance of education to citizenship and therefore the duty (and power) of both the states and the feds to secure some baseline of adequate education for all. Equality does cover social, civil and political affairs (the original view leaned toward accepting social inequality and separation, thus Harlan treated public accommodations different from public schools). But, Goodwin Liu's (author of the article) focus is on citizenship, which does not require equality as such in all these categories (though sometimes, yes) while requiring some basic floor.

Government's role in education underlines that the state has long been considered to be important here. Getting the feds involved -- even with a national university which Madison desired -- was a harder nut to crack. Liu focuses on the duty of Congress in this area, one that reflects original understanding and Harlan's discussion in his dissent to the Civil Right Cases. In passing, Liu also suggests some basic health care is necessary as well, something I go into more detail here. Such a duty suggests that Congress has the power to carry it out, using various methods including the tax/spend power, interstate commerce and Section Five of the 14A.

As I note in my health care discussion there and elsewhere, such a duty in my view also implies (basically by definition) a right. If the government has a duty to do something, even if it has some discretion (e.g., police services), we have the right to it. If the duty is somewhat open-ended, it might be harder to obtain the right by lawsuit. It might even seem a bit inchoate to really be a "right." But, I disagree. As Liu notes, the Constitution is not just about negative rights against the state. It includes some duty (right) to positive dare I say affirmative action. The recent discussion on speech outdoors (Timothy Zick) covers an example -- who but the government can truly protect our ability to publicly protest? This requires action.

Conservatives concerned about property rights can tell you about the importance of governmental action to secure such rights. Some just are a bit selective about taking this to an equitable and logical conclusion.