Mike Royko Happy Holidays

And Also: Some good people are trying to convince us that the Senate bill is a poison pill, sometimes appearing to be loathe to actually mention the good stuff in it in the process. This does not justify ignoring their honest belief that it is a bad bill. Still, the problem still would be broader than just one matter as bill supporter Paul Krugman noted today.

A few years ago, I wrote the below, which received some hits because of the Mike Royko Christmas tree column citation.

That tells me Sampson [a supporter of Mayor Sawyer who argued that not supporting a certain candidate would lead to racial unrest] doesn't understand how an election works. The person with the most votes wins. If you don't get enough votes, you lose. That appears simple and fair enough. But Sampson doesn't see it that way.

-- Mike Royko [Mike Royko: A Life in Print]

One wonders how Mike Royko, patron saint of Chicago and newspaper columnists (the right sort), would have thought about 2000 and its aftermath. We need more pointed commentary like his these days, and not just in blogs. Frank Rich hits hard, but has a pointed headed liberal sort of vibe that is a bit tiresome after awhile. The redhead also hits home sometimes, but other times seems a bit too trivial or over the top with her at times childish sounding barbs. In fact, a NYT editor, Gail Collins, once reminded me of Royko. She used to have a column in the NY Daily News, pointing out all the foibles and idiots found in the city government. As she noted in one ad, Collins once wrote about pigeons, and received much more feedback worried about their well-being than of that of public officials.

The NY Daily News doesn't really have someone like that any more. Juan Gonzalez sometimes provides a left of center bit of truth as does a few others, but they always seem to be on a somewhat out of the way place in the paper. Surely, not on the editorial page or anything. Thus, one valuable column on immigration and civil service issues is deep in the paper, mixed in with want ads and other matters people skip over to read comics and supports. A bit of verve, especially one that takes no prisoners, is a bit harder to find these days. We need more Roykos.

I speak as someone who only had a passing knowledge of the man, but appreciated him all the same. His column used to be syndicated in the Daily News and I enjoyed it enough to purchase one of the volume of his columns. I don't believe he was there any more when he died in the mid-1990s, surely not consistently. I also checked ... no longer have the collection, but I remember some of them, a few that are also excerpted in a biography by a former editor, friend, and reference in his column, F. Richard Ciccione. For instance, his tongue in cheek review of the Roykoesque film Continental Divide, or his discussion of his new high rise (with picture pointing out the necessaries of such living) apartment. It showed his, forgive me, eclectic tastes and romantic side.* Such things appeal to me as well. I also remember a column annoyed that some moron alderman nixed honoring the writer Nelson Algren with a street sign.

The book was an enjoyable read, especially since it had a healthy citation of his columns (and love letters to his first wife ... who died way before her time). His respect for hardworking ethnic Chicagoans was also noted. I think he might have liked my dad. He too was of the first generation born in America, his family, did in his time in the military (stateside though), and was a deep believer in hard work. Such basic things puts matters in a certain perspective. I did not know he and his second wife ("the blonde") adopted two children (a boy and a girl, the latter no girly girl -- she gave him the finger before she was three), but overall the book provided a picture of Royko that fits my image of the man.

[I didn't know of his computer loving side, including his penchant of hanging out in chatrooms. He might have liked all these online message boards.]

As a fan of the Billy Goat tavern, and its "curse" on the Cubs, he would have appreciated a recent post by the Slate fray wag doodahman on the subject. And, the 2003 fiasco would have been quite understandable to him -- the book notes that it was almost hard to take when the Cubs actually went to the playoffs in the '80s, and won the first two games. But, he had more perspective them some. He would not blame that one fan alone. Like his column noting the public ultimately was to blame for Nixon, his last column noted the delayed introduction of black players to the team. The author noted that he said that it "was racism, not the Goat, which haunted the Cubs."

I think he would appreciate these times. Ciccone noted that the Chicago politics changed since the Boss Daley days and the tenor of Royko's columns changed with it. The incompetence, cronyism, and linguistic stupidity (and vulgarity) that we must deal with these days would have be quite understandable to Mike.

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* The book reposts what appears to be most of a touching column, told through the eyes of alter ego Slats Grobnik, about a young married couple that clearly had very money buying a Christmas tree. They bought two cheap trees ($3), both half crummy. SG later saw a tree in their window, and it looked wonderful. Turns out, they tied the two together, and "if you put them together just right, you can come up with something really beautiful." You know, "Like two people, I guess."

[Slats was introduced in the 1960s, when a major policy role in the poverty administration was given to a poor person. This seemed off to Slats. He was drunk for as long as he could remember, but was never offered the presidency of Seagrams.]

The Dead Girl

Brittany Murphy, the voice of Luanne my favorite King of the Hill character, has just died at 32. Fans with some sense of irony might want to find a copy of The Dead Girl. Others might want to check out The Ramen Girl, a pleasant little known lead performance.

7-7

The Jets fail to take advantage of various shots at scoring and give up the game with less than two minutes left, 10-7. Meanwhile, the 0-6 Titans now have the same record, and more of a shot (however slim) of playoffs. Multiple 7-7 teams now. First major snowfall in NYC too.

Imperfection

The Colts' defense hung on as a back/forth game went their way, helping the Jets, who also need to beat them next week to hang on to slim playoff hopes. OTOH, the Saints' offense took too long to come. The Redskins gave them a gift OT win; Dallas was not so kind. The Giants' margin of error went down some more.

Yes, Virginia (Wicca Edition)

And Also: I referenced two things that got Sen. Nelson's support on the health care bill. One was a usual monetary thing to get support that actually helps people if perhaps selectively, the other was a somewhat less burdensome abortion funding measure. Given current realities and Hyde, not a deal breaker; still bad for women.

[A reply to a form of this post here challenges me that "scientific inquiry and experimentation" can be part of the mix. I agree. Scholarship in fact can lead to stronger religious beliefs, particularly when it provides a less simplistic view of things. It also can challenge certain faiths. My perspective below is not meant to deny that. In fact, the "provable" comment is not as much a defense of religious belief than a warning of taking it too far.]

Wicca is not a unified movement ... [b]ut Wiccan teachings are for the most part a stew of demonstrably false historical claims. ... The rare Wiccan belief that pans out is that Christmas is an adaptation of a solstice celebration.

A Slate article seems to reject some expressions of a belief system that has many strands. Such criticism (e.g., certain historical claims are demonstrably wrong) is valid, but to the degree it implies all of Wicca share them (even if some are "starting" to see the light), it goes too far. To take one issue referenced in the article, are many Wiccans truly focused on medieval witch burning? And, to the degree the article is correct, it still is wrong to single out Wicca as particularly wrong in this respect. The negative replies are on point.

Various Wiccan beliefs are not really based on "historical claims" as such but beliefs in general. The fact that some Wiccans in part use dubious historical claims makes them fairly typical -- scholars have shown many incidents in the Bible (written down at times centuries after they supposedly happened), for instance, did not really happen.* As an aside, Wicca underlines that belief in a God as such is not what makes "religion," since various religions honor nature or some other cosmology (see, e.g., Buddhism), not a specific "God" figure. Then again, as shown by a locality (blessed by a federal appeals court) that deems Wiccans as ineligible for legislative prayers, such exceptions might not count to some people.

The article implies that Wicca rests on fictional history, when in actuality it appears to rest on various beliefs, some of which some of its members (to some degree wrongly) tries to backdate to times past. I'm no expert, but taking a religion I'm more familiar with (Christianity), I reckon various people who practice it are not that concerned with that aspect of the religion, more so with the rites, morality and various basic beliefs it promotes. Beliefs that are are shared by non-Wiccans, e.g., nature is sacred, reincarnation and that a certain moral path results in true happiness. Again, "religion" is seen in its complexity, specific beliefs not the whole point, but an overall worldview and ways to put it into day to day practice.

Finally, from what I read about Wicca and related religions, some seem to see the "history" cited as fiction here as more akin to myths -- stories that have a symbolic point. In this sense, let's say, the biblical creation stories are "true" in some way, even if we accept they are not "history." As someone once told a little girl:

Virginia, your little friends are wrong. They have been affected by the skepticism of a skeptical age. They do not believe except they see. They think that nothing can be which is not comprehensible by their little minds. All minds, Virginia, whether they be men's or children's, are little. In this great universe of ours, man is a mere insect, an ant, in his intellect as compared with the boundless world about him, as measured by the intelligence capable of grasping the whole of truth and knowledge. ...

Only faith, poetry, love, romance, can push aside that curtain and view and picture the supernal beauty and glory beyond. Is it all real? Ah, Virginia, in all this world there is nothing else real and abiding.

Some members of all religions miss the true meaning of that letter. They focus on the literal, trying to prove what cannot be provable. They act more like historians and scientists than promoters of a way of life. Some, including many Wiccans, avoid that path.

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* The article suggests in some fashion that the false historical claims of Wiccans are harder to deal with because they are newer, thus the people making them can be challenged. But, other religions often make some historical claims which are as open to challenge. The age of said religions give them some degree of authority and some of the things challenged are in the more distant past, but this doesn't stop such criticism.

Again, I see whatever valid message the article sends is not somehow unique to Wicca. Thus, Christians are advised not to rest too much on the exact authority of the texts (a result of disputed translations and somewhat ad hoc choices) found in the gospels or historical events found therein (e.g., the location of Jesus' birth, which is part of a "factual" account that is more important for the overall message it is sends).

Imperfect in the Right Direction?

Sen. McCain (Maddow noted the gap in the video) and Snowe again suggest that being a Republican means being a b.s. artist, emphatically. Bottom line, I lean toward Yglesias regarding health care, even with Nelson/NE getting his/theirs. Also, for me (some disagree): focus on expansion of benefits, then worry about costs.

What Has Changed? (Gitmo Edition)

And Also: At first, I was no fan but lately it seems that Craig Ferguson grew into the role nicely. He is in effect the new Conan and does so basically alone. CF's style of winging it probably is a mix of planning and actual ad libbing. Overall, it is pretty fun and shows real talent as a performer. His somewhat ad hoc interview style also can be rough, but also shines if the moment is right.

Glenn Greenwald often is compelling reading, but sometimes goes too far, including in his now familiar harsh tone against those deemed to deserve it. This includes his responses to comments, which reflects an admirable involvement with his readers, something that shows the possibilities of online commentary. OTOH, such responses also provide a chance for blithe replies that suggest the person is not taking the readers seriously. Orin Kerr, e.g., seems to do this from time to time.*

GG recently sneered that Obama's decision to move some residents of Gitmo (those not to be put on civilian trial) in a facility in Illinois was just "Gitmo North" (unmentioned is that this label is a Republican talking point). No real change. I responded in a comment (addressed not to Glenn specifically), getting annoyed at another set of "Obama is no different" complaints, that people should remember that even GG doesn't think things are that bad. Also, in at least some limited ways, the move is a change. GG responded to my "myths" with a bunch of "so whats." I might call this the "Bad Glenn."

The administration has already announced that it will rely on the Bush/Cheney theory to justify its indefinite detention power -- that Congress implicitly authorized that when it enacted the 2001 Authorization to Use Military Force.

First, the Supreme Court also accepted this "Bush/Cheney theory," and the fact it warned (as GG responded) that at some indefinite point it would no longer be sound is not really disputing the point. The Supreme Court in 2008 and lower federal courts in 2009 sent no signal that the time is about up. Since POWs were held years after WWII was over, even after the current new "Friedman unit" in Afghanistan is over, the executive would probably have lots of time. Also, Congress implicitly supported this argument by this point. To the degree Congress supports unconstitutional or otherwise bad policies (e.g., watering down habeas), it is not grand, but it does address one aspect of the "Gitmo problem."

The sentiment behind Obama's campaign vow to close Guantanamo was the right one, but the reality of how it's being done negates that almost entirely. What is the point of closing Guantanamo only to replicate its essential framework -- imprisonment without trials -- a few thousand miles to the North? It's true that the revised military commissions contain some important improvements over the ones used under Bush: they provide better access to counsel and increased restrictions on the use of hearsay and evidence obtained via coercion. But the fundamental elements of Guantanamo are being kept firmly in place.

This begs the question what the "fundamental elements" really are. The basic element was that it was some lawless place (not less law) where things were basically up to the discretion of the executive while being out of sight. This is why Obama's reliance on AUMF and the law of war, not raw executive power, matters. ("So what") Congress can further executive power as it did on FISA immunity etc., but this only underlines the breadth of the problems ofthe Bush years. The "moderate" path still is problematic. There is still some limits to discretion based on even too executive friendly statutory powers, which is why the Bush Administration fell back to the third argument. Under that one, judicial review would be barred. And, mistreatment would be winked at -- out of sight, out of mind.

This has been successfully challenged, if not to a totally satisfactory degree. Habeas review is present. The Geneva Conventions apply (how exactly is unclear, but they apply). And, since Obama came in "some important improvements" were passed regarding military commissions. Plus, for the third category who will not get them or civilian trials, Obama proposed further safeguards, including periodic judicial reviews. Thus, things have changed, if not enough. Yes, these things would still apply if they were left in Gitmo, but my overall point addressed the "nothing changed" argument.

But what made Guantanamo such an affront to basic liberty and the rule of law was far more than symbolism, and it certainly had nothing to do with its locale. If anything, one could argue that it's now more dangerous to have within the U.S., on U.S. soil, a facility explicitly devoted to imprisoning people without charges.

Gitmo was a problem for many reasons. The problem with limited rights was not limited to that area. For instance, the FISA debate underlined the concern of watering down rights and checks/balances during the "war on terror." The "lawless zone" problem has been addressed and closing it would be a major symbolic move, which often is what foreign policy means at the end of the day. Also, having the prisoners within the U.S. forces us to deal with the problem (or, at least, makes it harder to hide it), while easing their involvement with lawyers and perhaps the outside world in general (family, media, etc.). This is a far from trivial matter. And, there also might be a real legal consequence:

All this means that the pending cases can--and will--remain in D.D.C. But it also suggests that there is no barrier to a detainee filing a new petition (perhaps raising a conditions of confinement claim) in a jurisdiction that might be more receptive to the argument that the petitioner has some modicum of constitutional rights (an argument rejected by the D.C. Circuit in Kiyemba I), especially once the petitioner is physically present within the United States.

It is true that they would retain habeas protections if held in Gitmo (as compared to Bagram, though a lower court disagrees with Obama on that), but the Insular Cases (still good law, to some extent) treats various areas under our control differently, the "U.S." offering the strongest protections. It is unclear how the courts would treat (alleged) enemy aliens like these, but it is possible that the locale will help them in some cases. Since it is a reasonable path of litigation, it also might at least serve as a negotiating tactic for the lawyers involved. Again, the move matters.

Even worse, by emphasizing that Thomson will be an even more "secure" supermax than the utterly inhumane hellhole at Florence, Colorado -- even boasting that it will be the most secure prison "of all time" -- it's likely that individuals who have never been charged with any crime will be held indefinitely in a facility even worse than Guantanamo.

I don't really know how seriously to take such "boasting." It can very well be just a public relations move to deal with blowhards that try to scare us, ignoring all the other convicted terrorists in our prisons. Not being able to predict the future, and again noting that not being in an out of the way island prison has its benefits, I don't know if it will be "worse" than Gitmo. Just to remind, this does not make it the right choice overall -- that would be to try them at least in military commissions, the alternative being the distinct possibility that mistreatment or the like will "benefit" us because it will serve as an excuse on why we need to detain dangerous people who we cannot convict because of our own misdeeds.

It should also be added that they (at issue here are those who will not be tried at all) do have habeas rights, with more rights perhaps forthcoming if Obama's proposed procedures for them ever come to pass, so federal judges have put the evidence used to hold them to some sort of test. Thus, it is not akin to some tyrant just tossing people into holes with only their own say-so (the rules set up by a rump group, see, e.g., The Dark Side) as a restraint. The bar is low, and even if found not met, there is no assurance the executive will release the individuals (a matter now under review). But, the bad situation need not be exaggerated for effect -- reality is bad enough, improvements do not deny it.

That is "so what," GG et. al.

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* What is the point of his socialist professor story? The proposal would just as well mean that anti-socialists would have more power to pass their own policies. And, the Senate as currently constituted seems more "conservative" than "centrist," in that some things that the "center" wants (e.g., the public option) is not being passed. OTOH, Kerr's own philosophy leans conservative, so he gets to have his cake and eat it too.

Kerr is deemed by some as a reasonable conservative, and given some of his brethren at Volokh Conspiracy, this is true enough. But, other times, honestly, he comes off as a bit of an ass. This included his "reasonable" take on presidential power during the Bush years, that seemed reasonable at times only in comparison.

No Fight?

"I know there's been a lot of game theory from people about how that would never work, etc. But the fact is that you can show leadership for big ideas and there's always still room to compromise at the end. At least then it would be clear that there was no other way, that you put up the good fight, better luck next time."

Characters v. Real Character

Dean is right; it's not all about Lieberman. But, Collins has a point:

You can move on, and try to make yourself useful (Kerry, Al Gore). Or you can work out barely suppressed rage by attacking things that you used to be for, like trying to control Medicare costs (McCain) or expanding Medicare eligibility (Lieberman).

The War That Made America

The War That Made America: A Short History of the French and Indian War by Fred Anderson is the companion piece to the PBS series of a few years back. It is an interesting and timely read that looks at things from different perspectives -- British, French, colonials, and Native Americans. Unexpected consequences is a repeated theme.

Hanukkah - The Value of Moderation

And Also: I needed a tricolor connector to hook up a VCR/DVD. Went to Rite Aid and the item was $8.99. The local .99 store had it for eight dollars cheaper. Going different places for different things can get tedious, but sometimes it is worth the trouble.

Update: Anne Frank's family celebrated this holiday as well as St. Nicholas Day (also noting a tradition of giving poems to each other on that day), in her diary emphasizing the latter, even though the former clearly is particularly emotional given their situation. OTOH, the latter might be more colorful and nicer to focus upon for the same reason. She also spoke about giving Christmas gifts to their protectors. I'd add, re-reading her last entry alone, Francine Prose was quite right to honor her skills as writer. Quite eloquent for someone fifteen.

Item:

Behind the spinning dreidels, holiday presents, and other "kiddy" traditions of Hanukkah lies a story of acculturation, civil war, zealotry, and tyranny. In a 2005 article, reprinted below, James Ponet explores the historical context of Hanukkah and casts the holiday in a new light.

A basic principle of Aristotle can be summarized as moderation in all things. The article cites concerning Hanukkah leads me the same place. As noted in the article, if someone picked up a Bible and looked for the story of Hanukkah, particularly the miracle of stretching a bit of oil for eight days, it might be difficult to find. The celebration started in the times of the Maccabees in the second century before the common era. The two biblical books covering their story is not found in many of the bibles out there because it is among those not accepted in the official canon of Jews or many Christians.

If we actually look at the First Book of Maccabees, the ceremony is less miraculous, no nice story about a tiny bit of oil stretched out provided:

And they kept the dedication of the altar eight days, and they offered holocausts with joy, and sacrifices of salvation, and of praise.

The Hanukkah (dedication) would be an annual event:

And Judas, and his brethren, and all the church of Israel decreed, that the day of the dedication of the altar should be kept in its season from year to year for eight days, from the five and twentieth day of the month of Casleu, with joy and gladness.

The use of the word "holocaust" here underlines the complications in reading the Bible without knowledge of what exactly is being talked about. The term has a different connotation these days; here is is a type of burnt offering. Thus, many Jews prefer "Shoah — a Hebrew word connoting catastrophe, calamity, disaster, and destruction."

But, the story in the actual book also is not solely about the "religious right" of the day rebelling against liberal Jews who started to adopt the ways of the Greeks. True or not, the book tells of a despotic king who ravaged their holy places and denied freedom to honor their God as they saw fit ... it was not that the Jews simply turned away from traditional ways. Those who did not were persecuted by the state. Compare this to the times of Jesus, where there also were Hellenized Jews (Greek cities were referenced in the gospels) AND more traditional religious practice. Or, references in the canonical scriptures of Persian leaders who respected the religious freedom of the Jews and allowed them to rebuild their temple.

Apparently, there could be such a mixture -- not all or nothing, even if people like Jesus rebelled against those who did not follow the traditional path as they understood it. The origins of the holiday either way make it a bit ironic that what many Jews deem a relatively minor celebration is highlighted by some as a sort of balance off of Christmas. A holiday that seems to some as a way to fit Judaism among mainstream culture was originally about the concern Jews adapting too much to the non-Jewish culture of the day. The problems with the fit is addressed here, in what else, a holiday display lawsuit.

The "miracle of Hanukkah" appears to be a later addition, much like many of our Christmas traditions cannot be found as such in the Bible. For instance, the very timing -- late December -- is not biblical, but more a reflection of pagan practice of celebrations that were later adapted by Christians. It's overall meaning, as with Christmas, can be many different things. A dedication to God as well as a reminder of the threat of persecution -- not necessary the same thing as religious diversity or even being ruled by non-Jews -- is one way. It also can be honored (as was the case by Anne Frank's family) along with St. Nicholas Day or Christmas, those celebrated as a sort of secular holiday by some Jews as well.

Perhaps, the eight days of the festival can be used to examine the various aspects of this matter.

Religion and Supreme Court Picks

All of which raises a question: Are the days of caring about religious diversity on the high court behind us? Or is it merely that the days of talking about it openly are behind us?

- Dahlia Lithwick

We should talk about religion in this context but make sure we do so carefully.* Prof. Sandy Levinson, referenced in the article, wrote a book about the importance of diversity in education and other contexts. A review of the book (Wrestling with Diversity) over at Amazon notes:

In the book's most compelling chapter, "Identifying the Jewish Lawyer," the author discusses how identity is constructed by both culture and religion, and vice versa. Levinson's quiet insistence on bringing religion into our definition of diversity is a critical gesture that is particularly welcome coming from a legal scholar.

Prof. Levinson promotes diversity, but not in the single minded fashion of some (race, gender) but in a truly diverse way, including religion, region, or profession (Thurgood Marshall's jurisprudence was greatly affected by him being a defense attorney / advocate, not merely by his race and racial experience) and so forth. If we honor diversity and/or reject that justices are purely fungible parts who will just "follow the law" like "umpires," their backgrounds will clearly in some fashion affect their judgment. This matches experience as well as human reality.

Religious belief and practice is one aspect, which is why for some time there was a "Jewish seat," even though one Jew on the Court has a daughter, who is an Episcopal priest. Pat Buchanan argued in this light that evangelical Christians are not represented. Not true -- see, Justice Thomas. Also, "Catholic" is really a catchall, given the different positions of Kennedy and Scalia on many issues ... lest we forget, Justice Brennan also was Roman Catholic as was Ted Kennedy.

It was not "five Catholics" on the Court that gave us Gonzalez v. Carhart, but as Catholics For Choice might tell you (reflecting a chunk of its membership in the U.S.), conservative leaning (on certain issues at least) Catholics. This is why we cannot simply look a labels here, even when realizing that religion does matter. Brennan v. Scalia underlines that only some Catholics are originalists ("originalists"), Judaism and Islam also underlining the different shades of a religion, the position of the latter on let's say the legitimacy of interest running the gambit. Evangelicals are more comfortable with Scalia (and Catholics can be evangelical in various ways) than Souter.

When promoting diversity, it is important to keep in mind that people can bring things to the table in many ways. Given Justice Sotomayor is divorced and one assumes might not stay loyal to traditional doctrine as to premarital relationships, is she a "Catholic" or does she bring one aspect of a diverse Catholicism that to some raised in the faith almost appears to be Protestant? Should we rather desire a Protestant white man or woman with a less notable background was chosen? I am more concerned that there are five conservative former appellate judges with certain judicial views than that they are all Catholic.

Religion surely matters, including if you are a judge. Clearly, and this is why there is no religious test barring individual religions from public office, it is a complicated matter all the same. Just ask the author and main dissent in Lawrence v. Texas.

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* This came to mind today while listening to part of President Obama's Nobel Prize acceptance speech as well:

For if you truly believe that you are carrying out divine will, then there is no need for restraint -- no need to spare the pregnant mother, or the medic, or the Red Cross worker, or even a person of one's own faith. Such a warped view of religion is not just incompatible with the concept of peace, but I believe it's incompatible with the very purpose of faith -- for the one rule that lies at the heart of every major religion is that we do unto others as we would have them do unto us.

This might be the "very purpose of [his] faith," and he does say "I," but it need not be the definition of all faith -- the Golden Rule can be determined to not apply. The desire to blend religions together at times leads to troublesome mixtures of church and state (or other institutions), the sectarian favoritism arising from assumptions. Ditto the belief that certain things like "marriage" obviously cannot be religiously recognized when a same sex couple is involved, even though some religious faiths do so recognize.

Obama Wins Nobel Peace Prize (Seriously) (Update)

Reading about politics in blogs and so forth can be tiresome after awhile, especially given the kneejerk responses about President Obama. I've been down this road before, but for those who say "what did he do for us" why not take a look at this. His Nobel Prize acceptance speech, suitable for Human Rights Day,* is also telling. It is an eloquent speech, even if you disagree with him about the need for force in certain cases. One striking thing is how he defends the use of force ("just war") and our role in the world to possible critics.

More here on a strong effort; thanks Mr. President, even if I disagree with some things you do, such as the use of "evil." Some sneer he sounded like Bush in his support of force and the power the U.S. -- unilateral if necessary -- to defend itself. But, not supporting pure pacifism isn't that. Even the U.N. accepts unilateral use of defensive force. A honest and halfway sane reading of the speech does not lead one to say "oh well, just Bush."

[Update: BTC News is a bit less positive on the whole speech thing. Glenn Greenwald today appears to wonder why both conservatives and liberals like it. Conservatives hook on to the support of force and U.S. power stuff, while liberals (who aren't pacifists to begin with) look at it as a whole, and see much more to like than not. Yeah, even with the use of "evil," particularly since his religious outlook already told us he believes in that sort of thing.

And, then there are Andrew Sullivan sorts, who see in him a sort of realistic optimist, a conservative who remains "audacious" in a troubling time. Not overly familiar with the philosophy stuff, but "slow, uncertain march of human enlightenment" is not bad. I want more sometimes, but given our politicians these days, there is something to be said for it all the same. Someone who didn't vote for him over at Volokh Conspiracy not only praises the speech but notes the Golden Rule point is true overall -- the "major" religions do have the basic idea front and center in various respects.]

Over here, I discuss Dahlia Lithwick's interesting article on how wary we are to deal with the role of religion in judicial nominations. My reply cites Obama's speech, including his sentiment (addressed in a former speech on religion in public life) about certain things that all what is in "every major religion" and what he thinks is the "very purpose of faith." I have said before how this gives me pause, in part since it tries to homogenize religion in ways that don't match reality. Some religion is nasty. Unity isn't always possible here. It's one reason why we have separation of church and state.

Given the day and his promotion of human rights, a nod also is appropriate to Rachel Maddow's efforts (joining others) against bill in Uganda that targets homosexuals, originally making it a death penalty and life imprisonment eligible offense. To the degree this aspect of the bill might be removed, the opposition (including from Secretary of State Clinton) has shown some results. Maddow also reported how "The Family," a conservative religious group with many members (including Stupak of the infamous amendment, and Rick Warren) had a role, Warren eventually coming against it. A good use of responsibility to address the seedy members of your group. [As Rachel Maddow noted tonight, his overall record stinks and he b.s.-ed even on this matter.]

Finally, Nova's Einstein's Big Idea was an interesting and well acted dramatization of the history behind his famous equation, including looking back at fascinating (and some little known) scientists. Many women too.

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* "Let me make one final point about the use of force. Even as we make difficult decisions about going to war, we must also think clearly about how we fight it. The Nobel Committee recognized this truth in awarding its first prize for peace to Henry Dunant -- the founder of the Red Cross, and a driving force behind the Geneva Conventions."

Adam Liptak on Sotomayor's First Opinion

And Also: Stuff on the climate flap in the news, which in effect blows out of proportion / misconstrues emails of one climate research center. Perepolis was on yesterday -- great adaption of the great graphic novels. The author's other works are fine too.

[Update: This analysis is pretty good.]

Adam Liptak was part of a panel discussion on media reporting of the Supreme Court (Dahlia Lithwick and Emily Bazelon was as well) recently and somewhat modestly spoke of the importance of his job, suggesting at one point there were some redundancies in having four papers, let's say, cover the same ground. The Slate duo wasn't so sure about that. Neither am I, at least, if the different voices do a good job providing the public the various sides of the question.

[Some of the panelists promoted standard frames like the Sotomayor hearings were lame that are tired -- what about pointing out that the Roberts nomination arose in a different context (deemed the best you can hope for under Bush and besides the guy was Rehnquist's law clerk, filling in the role of the just deceased justice) with the minority party of the time not being half as lame about criticizing him or having their minds on other matters as well?

Or, that it was up to the senators to challenge her confirmation safe "just following the law" line, one that was really no worse than Roberts' umpire metaphor, better in a fashion, since she was following precedent and defensively dealing with attacks of her being a racist etc.. Noting only about a quarter or so of the rulings follow a stereotypical 5-4 line also would help, including noting some 5-4 rulings actually are different match-ups. And so on.]

Liptak in general is a pretty good read in the Linda Greenhouse role (she provides occasional commentary for the NYT), providing some informative material to the general public. Still, his reporting on the first opinion of Justice Sotomayor had a couple dubious moments. For instance:

In a concurrence, Justice Thomas took a swipe at his new colleague, saying she had “with a sweep of the court’s pen” substituted “value judgments” and “what the court thinks is a good idea” for the text of a federal law.

Thomas did not take a swipe at Sotomayor in particular here given she wrote an opinion that was joined by seven other justices in full. This is why he said "the court's pen," not "Justice Sotomayor." One can also say, since he concurred alone, Thomas "took a swipe at his old colleague [Scalia]." It is somewhat notable that in an otherwise "dry opinion," Thomas felt the need to concur separately given it was Sotomayor's first. But, it doesn't seem personal and it is misleading to frame it that way, which "swipe at his new colleague" appears to do.

The public also can be misled when the Supreme Court refuses to hear or examine a case or particular issue, which is the norm (only a tiny percentage of appeals are accepted, the ones that are focus on issues not litigants in particular and even the cases taken often only examine some of the issues decided below). Sometimes, the coverage implies that the Supreme Court substantively decided on the matter at hand when all they did was refuse to decide one way or the other on the issue of law decided by lower courts. So, this is a bit troubling:

The federal government had urged the court to rule as it did but asked the court to exclude appeals of claims of the state secrets privilege and other governmental privileges from the sweep of its ruling. Justice Sotomayor obliged with a footnote saying “we express no view on that issue.”

I'm unsure if taking "no view" means it (again, the Court, not "Sotomayor" acted here) "obliged" to a request "to exclude," which seems to in fact "express a view" on said issue which appears to be quite logical given "other governmental privileges" was not germane to the matter at hand:

Because we agree with the Court of Appeals that collateral order appeals are not necessary to ensure effective review of orders adverse to the attorney-client privilege, we do not decide whether the other Cohen requirements are met.

That is, a specific privilege, not something else that might warrant special protections. Still, the article did add this interesting wrinkle:

Justice Sotomayor’s opinion in the case, Mohawk Industries v. Carpenter, No. 08-678, marked the first use of the term “undocumented immigrant,”* according to a legal database. The term “illegal immigrant” has appeared in a dozen decisions.

This is a telling matter addressing something that sometimes is a concern of the fray. As Rudy Giuliani noted:

"I know that's very hard for people to understand, but it's not a federal crime," Giuliani said, adding later that "I was U.S. attorney in the Southern district of New York. So believe me, I know this. In fact, when you throw an immigrant out of the country, it's not a criminal proceeding. It's a civil proceeding."

The opinion of the Court ended with a note of restraint mixed with flexibility:

This admonition has acquired special force in recent years with the enactment of legislation designating rulemaking, “not expansion by court decision,” as the preferred means for determining whether and when prejudgment orders should be immediately appealable. ...

Indeed, the rulemaking process has important virtues. It draws on the collective experience of bench and bar, see 28 U. S. C. §2073, and it facilitates the adoption of measured, practical solutions.

That is, Congress authorized the Court to establish rules for appellate review, which points to the flexibility the Court has in deciding what the law is. As the public focuses on individual decisions, such rules might be what truly matters to the litigants. In fact, as many focus on the results or hot button issues, many cases spent as much or more time on such procedural matters. Matters the public don't know much about, even if they realize something about the many turns required to get things through Congress.

Dare I say that even her first opinion is a "teachable moment?"

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* "According to Carpenter’s complaint, his termination came after he informed a member of Mohawk’s human resources department in an e-mail that the company was employing undocumented immigrants. At the time, unbeknownst to Carpenter, Mohawk stood accused in a pending class-action lawsuit of conspiring to drive down the wages of its legal employees by knowingly hiring undocumented workers in violation of federal and state racketeering laws."

Sotomayor Alert, ACORN and Football

And Also: Last week, the Ravens nearly blew a national game; this time they did, including a choke at the goal line. Good op-ed: "How gay unions lost -- but won: Same sex marriage supporters dominated the debate in the Senate."

The first set of signed opinions for the 2009 Term appear uncontroversial, including Justice Sotomayor's first. "Held: Disclosure orders adverse to the attorney-client privilege do not qualify for immediate appeal under the collateral order doctrine." The law is technical but the facts of the underlining case are notable:

When respondent Norman Carpenter informed the human resources department of his employer, petitioner Mohawk Industries, Inc., that the company employed undocumented immigrants, he was unaware that Mohawk stood accused in a pending class action—the Williams case—of conspiring to drive down its legal employees’ wages by knowingly hiring undocumented workers.

She did use "his or her" at one point, which is my preference. Meanwhile, an independent report provides further information on ACORN:

ACORN employees caught in those undercover videos advising a couple posing as a pimp and a prostitute on how to break the law acted unprofessionally and inappropriately, but did nothing illegal, an independent report has found.

The report, by former Massachusetts Attorney General Scott Harshbarger,* recommends nine steps for ACORN to take in order to regain public trust in the wake of the scandal, including that it return to its "core competency - community organizing and citizen engagement empowerment, with related services."

The last section is particularly telling about giving context to the situation. Overall, though this is not a complete account, it provides a better picture of the nuances of the situation than much of the news coverage Jack Shafer (Slate) et. al. thought should be "cheered." It also notes that in a fashion such coverage has a good side in that ACORN does have problems, including lax oversight. The problem is when lack of balance, including Democrats selectively turning against a group that helped them in the past, skewers such an important check on groups that on balance add to the public good.

Other organizations -- including those that receive much more government funding and have deeper problems with the law -- also would benefit from scrutiny, preferably some done in a more professional and less biased fashion.

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* Some will disdainfully note that ACORN paid for the report; in this fashion, they will argue that a former attorney general violated his ethical responsibilities to provide a neutral and competent account and cannot be trusted. OTOH, some of these people will trust an advocacy group who selectively (and possibly illegally) "reported" on the matter more. Or, media coverage that has been shown to be slanted and misleading.

Football

Some more good/bad football (yes, that means you SF!), including another Oakland upset (!) and Redskins failure to complete the deal (chip shot field goal missed, New Orleans wins). Meanwhile, the Giants stay alive and the Jets imagine what could have been as the Pats lose. Oh, and Brett and the Viks look mortal against Arizona.

Outwaiting Death?

SCOTUSBlog tells me that there should be an actual opinion on one of the argued cases as compared to the per curiam jobs we had thus far. As noted here, along with opinions related to orders, some death penalty issues were dealt with all the same. In fact, perhaps Justice Sotomayor's first on record vote involved a dissent from a death penalty order. A borderline retarded (some say that's half-right) murderer was just executed. Interestingly, here's something for SC nerds, Justice Sotomayor was the only one on record supporting a stay (middle 12/3 order). Linda Greenhouse also wrote about two per curiams on this subject.

Johnson v. Bredesen was one of Justice Stevens' opinions (here joined by his long term supporter of the cause, Breyer) dealing with death penalty orders. Here he was concerned with the long delays of execution, over two decades in solitary confinement, in large part because of state delays and procedural problems. For instance, having a credible claim of evidence, the right to see key evidence was not present for over a decade. Since execution after decades of delay (he cited a case involving a thirty year delay) is cruel and unusual in his view, the procedural problems (due process) is but half the trouble.

Justice Thomas, as he did in the past, rejected this view. He does not find it compelled by the Constitution, though he should respect lone wolf views in that regard. Comparing Stevens/Breyer's past opinions on the same might lead some to a contrary conclusion. Thomas in effect blames the delay on the defendant as it is his fault that there are various problems with the death penalty, including new evidence coming out years after a guilty verdict, often evidence in no way present at the time. There is a Catch 22 -- due process takes time, so what is too much -- but perhaps (as Stevens noted) that is a flaw in the death penalty system overall.

Thomas finds it absurd to think the death penalty -- originally understood to be okay in a very different time and criminal justice system -- is unconstitutional, so this cannot be right. He also takes a shot at citation of foreign opinion on this issue, but such citation is only used as informative. It is our Constitution, our "cruel and unusual" provision being interpreted. All same, just as foreign courts do in respect to our own rulings (or state courts in our own system do regarding other states), foreign rulings (here in countries where the death penalty still is legal) can be informative. Justice Breyer covers the ground well here.

Thomas debates Stevens over procedure, which I will lead to experts, though Thomas often is in the dissenting side in such matters anyways. He also alleges Stevens' reads on "policy" disputes on the "retribution and deterrence" secured by delays of executions. Thomas is not really only debating Stevens, but Supreme Court precedent, since these factors were used since Gregg v. Georgia (which Stevens' co-wrote) to help determine the constitutionality of the death penalty.

Justices Brennan, Marshall, Blackmun and Stevens (and Powell, according to his biographer, after retirement) opposed the death penalty on constitutional grounds for various reasons. The length of stay on death row is surely a somewhat ironic grounds; it is after all but one, plus is telling all the same. A trivial wait in contrast was deemed unjust by the Supreme Court in 1890:

Nor can we withhold our conviction of the proposition that when a prisoner sentenced by a court to death is confined in the penitentiary awaiting the execution of the sentence, one of the most horrible feelings to which he can be subjected during that time is the uncertainty during the whole of it, which may exist for the period of four weeks, as to the precise time when his execution shall take place.

I argued in the past that life imprisonment might be worse than death but not the death penalty. An op-ed basically said the same thing. If the death penalty is going to amount to something comparable, why not cut to the chase, save time and probably some constitutional problems, and just make it a life without parole situation?

Fair Enough?

And Also: The Jets season could have been different with even one (though two is no leap) more shoulda win, but they are in theory alive in the playoff hunt. The defense played well and the offense did enough before Mark Sanchez got hurt (and after, with a field goal) to beat Buffalo.

Over at Slate, I have been in the somewhat curious state of defending Obama for deciding some people can be tried by military commissions, some by civilian court and others held as "enemy combatants" (or see below) whatever the latest flavor of the day. Some find what he is doing lawless and hypocritical. Not being totally on board with all he is doing -- surely, I think people in Bagram have habeas rights -- there still is a middle ground. But, this is different from thinking those held as enemy belligerents have "speedy trial" rights from the moment of capture.

KSM et. al. matches the definition of "enemy combatant," authorized by the AUMF, as recognized by the federal courts thus far. Thus, the Supreme Court in Hamdi* accepted it pursuant to the "law of war," which would fall under the "law of nations" that Congress has the power to define (including beyond commonly understood, though this would be more problematic). The AUMF applies to "persons" and "organizations" not only nations as such (or by implication, their agents), so freestanding individuals sent over to us would apply. Under such power, the U.S. has the authority to hold the individuals to prevent them from taking part in the fighting or coordinating it that is ongoing. They need not try them for a crime. And, if they are and found not guilty, they need not be released, particularly if no country wants them or their safe keeping to a country cannot be secured.

The Supreme Court was wary about doing so indefinitely, but given the active conflict in Afghanistan, the time limit does not seem to be there yet. The Supreme Court surely did not assume so in their rulings thus far, even with new governments in Iraq and Afghanistan. This is so in part because wars do not disappear just because new governments are in place. This does not erase a need to amend the AUMF given new situations (or ends not so tied to 9/11, underlined about the war in Iraq) or that its use of "persons" and "organizations" instead of just "nations" is free from problems since the former is less a "war" than something else. We can hedge or make a case for more protections in various respects without ignoring that in a certain respect the Obama Administration is following the rules.

So, this does not mean specific procedures in place to determine if someone is detained properly or to try them is a military commission should not be challenged. It surely does not justify certain treatment, such as torture, or detaining those who are not members of the "enemy" such as the Uighurs. And, certain moves taken by Congress or the President can be criticized on policy or moral grounds. This includes apparent failure to follow through on promises made or selective outrage when your own people are in power. All too often there is an "all or nothing" flavor to this affair.

Anyways ... The specific definition of the term "enemy combatant" has not been fully determined by the Supreme Court, which has given the elected branches and lower courts much discretion. One federal judge involved defined it thusly:

An ‘enemy combatant’ is an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the Unied States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.

The term might be out of date, though honestly I don't know how much it matters (see also Bates opinion, which basically wonders the same thing), with new nomenclature used in a new military commission law:

“unprivileged enemy belligerent,” defining this as an individual who: 1) has engaged in hostilities against the United States or its coalition partners; or 2) has purposefully and materially supported hostilities against the United States or its coalition partners.

So, maybe the term should be "enemy belligerent" ... it's hard to keep track. Judge Bates overall recognized the right to detain "members of enemy armed groups" is general, noting Obama doesn't seem to be using "enemy combatant" as such:

The Court also concludes that the authority claimed by the government to detain those who were "part of . . . Taliban or al Qaida forces" is consistent with the law of war.

He clarifies:

The key inquiry, then, is not necessarily whether one self-identifies as a member of the organization (although this could be relevant in some cases), but whether the individual functions or participates within or under the command structure of the organization -- i.e., whether he receives and executes orders or directions.

Mere "support" is not enough. But, KSM et. al. do seem to fit this rubric. Again, the AUMF (an authorization of force that was done via the war power, which included full-fledged wars and lesser uses of force) and the laws of war (consistent with law of nations) is mentioned. All of this is open to debate, of course. But, going beyond what the SC and a fairly reasoned lower court judge held is more than one can expect from the executive in this context. Overall, Judge Bates' rulings are useful readings, even if some might not like his decision that Afghans in Bagram do not have similar habeas rights as others there.

Meanwhile, I put on my "not a knee-jerk liberal" hat on here as well to argue that yes Virginia corporations have certain rights as persons, and even the mean old Lochner Court never gave them all of them.

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* Scalia/Stevens argued that citizens have a constitutional right to be released or tried in a criminal trial. Souter/Ginsburg argued that citizens have a statutory right of the same. The new military commission law only applies to aliens. Other rulings upheld the right of aliens to habeas in Gitmo, which Judge Bates later applied (in part) to Bagram in Afghanistan.

The dissent in Johnson v. Eisentrager was also concerned with denial of habeas rights, not full-fledged trial rights. "Persons" under U.S. control have some rights against our nation (something some fail to accept), but this does not mean aliens have the right to a criminal trial in this context.

Who Won The Election?

And Also: Another death penalty order for Stevens (with Breyer this time) to handle. See here for coverage. Stevens opposed the execution both given the decades on death row and the (actionable) state's role in the delay. Thomas replies, wrongly implying all he has is policy and foreign law. Thomas is also the last person to emphasize how little support a view has.

One thing that stands out in yesterday's vote against same sex marriage in the New York Senate is that not only did no Republican vote for it, but they did not even say why. One of the eight Democrats (they voted 3:1 for), the father of the Bronx borough president (who opposes him on it), defended his "no" vote. The rest of the debate was fill with passionate discussion and stories stating a need for equality. Things were not too much different in the assembly, where five Republicans voted "yes." Our "indie" Republican mayor apparently wasn't much help either. It's not hard to vote Dem sometimes. [Eloquent 'aye' speech.]

The NY Daily News op-ed board gave a neutral account about how it was nice that the matter was put to a vote, some were upset/some thought traditional marriage was upheld, and heck maybe some sort of civil union benefits package would be warranted. Wonder if they would be so cavalier if racial equality was put up for a vote and failed like this. BTW, the paper reports that many don't know what to do with remainders on their Metrocards, since the bonus amounts result in tiny amounts. As in the past, you just add on to the card. Not that hard.

Jane Hamsher was on Democracy Now! today and noted that Pelosi has said, expletive deleted, that the Stupak Amendment would be necessary to pass the health insurance bill through conference. WTF? I thought Obama et. al. assured us that we would not have to deal with that shit, and a more Hyde-like rule would be in place? She noted that many Democrats feared the '10 elections and feel that something like this has to be supported to get Republican leaning votes. This apparently means anti-choice votes. Being a Democratic activist at times much feel like being a Nets fan or something.

Meanwhile, as noted, Talking Points Memo is starting to discuss the next election cycle, warning that the numbers aren't good for the Democrats. This is mighty depressing. The Democrats won the White House, additional votes in the House, and a 60th vote in the Senate. But, hey, so sorry, things are going conservative again. Maybe, contra Rachel Maddow, the Republicans are not so far in the wilderness any more? This is nauseating. The Democrats are in control, but already the meme is defeatist. Obama is facing an uphill battle on Afghanistan, health care will result in a substandard bill (the nihilists are willing to toss everyone who benefits to the wayside since it's not worth anything, you know) and now bottom feeders can't even be kept out of state dinners.

What a much of crybabies. I'm sick of all of them. I really am sick of those who are already whining that Obama is a one term president. Well, let's have him resign now, why wait? Apparently, the Republicans aren't really a f-ing mess, led by clowns, but able to beat a sitting President even after years of Bush/Cheney disaster. In 2006, after a Democratic victory in Congress, we would told that with a Republican President and a balance of Blue Dogs, nothing much could be done. But, now we have a Democratic President and more Democrats to spare, the rhetoric at times seems almost exactly the same. What a bunch of Republican enabling crybabies.

I was sick of it then -- the 20% tail wagging the 80% dog -- and even more so now. Stupak -- hitting to a core Democratic issue and having a Hyde Amendment sort compromise as an alternative (the conservative impeachment supporter is not good enough for these selfish assholes ... fu!) -- is a bridge too far. I was impressed with the forceful advocacy of Ambassador Rice on Rachel Maddow and elsewhere last night. The forces are there, if they actually worked on it, to provide something to show for having control of Congress and the White House. This includes not being so defeatist, even if things will get somewhat tighter after a year from now.

Anyways, how about a civil union bill, NY? If a marriage bill loses out in only one house of the legislature, why not join with neighbor NJ (unless they suddenly pass a marriage law before Corzine leaves office) and have the second best thing?

The Speech

Reactions: unsurprising, skeptical and not all bad. Skeptical = no sale on more troops. Unsurprising = didn't expect much more given his campaign message. Let's see how we are after another Friedman unit. BTW, won't more troops and killing help anti-American sentiment too?